UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
(Rule 14a-101)
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
(Amendment No. )
(Amendment No. )
Filed by the Registrant ☑
Filed by a Party other than the Registrant ☐
Check the appropriate box:
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Preliminary Proxy Statement
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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 §240.14a-12
Cardtronics plc
(Name of Registrant as Specified in its Charter)
(Name of Person(s) Filing Proxy Statement, if Other Than the Registrant)
Payment of Filing Fee (Check the appropriate box):
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
(1)
Title of each class of securities to which transaction applies:
A ordinary shares, nominal value $0.01 per share, of Cardtronics plc (which we refer to as “Shares”)
A ordinary shares, nominal value $0.01 per share, of Cardtronics plc (which we refer to as “Shares”)
(2)
Aggregate number of securities to which transaction applies:
47,681,691 Shares, which consists of (a) 44,539,433 Shares issued and outstanding as of December 31, 2020, (b) 584,465 Shares subject to issuance upon exercise of outstanding options with exercise prices below $35.00 as of December 31, 2020, (c) 526,855 Shares with respect to outstanding awards of restricted stock units as of December 31, 2020, and (d) 2,030,938 Shares with respect to outstanding awards of performance-based restricted stock units as of December 31, 2020
47,681,691 Shares, which consists of (a) 44,539,433 Shares issued and outstanding as of December 31, 2020, (b) 584,465 Shares subject to issuance upon exercise of outstanding options with exercise prices below $35.00 as of December 31, 2020, (c) 526,855 Shares with respect to outstanding awards of restricted stock units as of December 31, 2020, and (d) 2,030,938 Shares with respect to outstanding awards of performance-based restricted stock units as of December 31, 2020
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
In accordance with Exchange Act Rule 0-11, the filing fee of $180,563.22 was determined by multiplying 0.0001091 by the proposed maximum aggregate value of the transaction. The proposed maximum value of the transaction was calculated as the sum of: (a) the product of (i) the sum of (A) 44,539,433 Shares issued and outstanding as of December 31, 2020, (B) 526,855 Shares with respect to outstanding awards of restricted stock units as of December 31, 2020 and (C) 2,030,938 Shares with respect to outstanding awards of performance-based restricted stock units as of December 31, 2020, multiplied by (ii) $35.00 per Share and (b) the product of (i) 584,465 Shares subject to issuance upon exercise of outstanding options with exercise prices below $35.00, multiplied by (ii) $11.33 (which is the difference between $35.00 and the weighted average exercise price per Share of $23.67) as of December 31, 2020.
In accordance with Exchange Act Rule 0-11, the filing fee of $180,563.22 was determined by multiplying 0.0001091 by the proposed maximum aggregate value of the transaction. The proposed maximum value of the transaction was calculated as the sum of: (a) the product of (i) the sum of (A) 44,539,433 Shares issued and outstanding as of December 31, 2020, (B) 526,855 Shares with respect to outstanding awards of restricted stock units as of December 31, 2020 and (C) 2,030,938 Shares with respect to outstanding awards of performance-based restricted stock units as of December 31, 2020, multiplied by (ii) $35.00 per Share and (b) the product of (i) 584,465 Shares subject to issuance upon exercise of outstanding options with exercise prices below $35.00, multiplied by (ii) $11.33 (which is the difference between $35.00 and the weighted average exercise price per Share of $23.67) as of December 31, 2020.
(4)
Proposed maximum aggregate value of transaction:
$1,655,024,898.45
$1,655,024,898.45
(5)
Total fee paid:
$180,563.22
$180,563.22
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Fee paid previously with preliminary materials.
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
(1)
Amount Previously Paid:
(2)
Form, Schedule or Registration Statement No.:
(3)
Filing Party:
(4)
Date Filed:
PRELIMINARY PROXY STATEMENT DATED JANUARY 7, 2021 — SUBJECT TO COMPLETION
![[MISSING IMAGE: lg_cardtronics-4c.jpg]](https://cdn.kscope.io/1a46865a8e35a97971a54ed125b73ee8-lg_cardtronics-4c.jpg)
COURT MEETING AND GENERAL MEETING
YOUR VOTE IS VERY IMPORTANT AT EACH OF THESE TWO MEETINGS
YOUR VOTE IS VERY IMPORTANT AT EACH OF THESE TWO MEETINGS
To Shareholders of Cardtronics plc:
As previously announced, on December 15, 2020, Cardtronics plc (which we refer to as the “Company” or “Cardtronics”), entered into an Acquisition Agreement (which we refer to as the “Acquisition Agreement”) with Catalyst Holdings Limited (which we refer to as “BidCo”), pursuant to which BidCo has agreed to acquire all of the issued and to be issued ordinary shares of Cardtronics (which we refer to as the “Acquisition”) for $35.00 in cash per ordinary share (which we refer to as the “Per Share Consideration”). BidCo is affiliated with investment funds managed by affiliates of Apollo Global Management, Inc. The Acquisition will be effected pursuant to a scheme of arrangement (which we refer to as the “Scheme”) under Part 26 of the Companies Act 2006 (which we refer to as the “Companies Act”), further details of which are set out in the proxy statement that follows this letter (which we refer to as the “proxy statement”).
Approval of the Acquisition requires Cardtronics shareholder approval and the sanction of the High Court of Justice in England and Wales (which we refer to as the “Court”). The first shareholder meeting, which is convened with the permission of the Court, will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] (London time). At this meeting, which we refer to as the “Court Meeting,” you will be asked to consider and vote upon the Scheme (which we refer to as the “Court Scheme Proposal”). The purpose of the Scheme is to provide for BidCo to acquire all of the issued and to be issued ordinary shares of Cardtronics (which we refer to as the “Shares”). This is to be achieved by means of an automatic transfer of all of the outstanding Shares subject to the Scheme, the consideration for which will be the Per Share Consideration paid by BidCo. Before the Court’s sanction can be sought for the Scheme, the Scheme requires the approval of the Court Scheme Proposal by Cardtronics shareholders at the Court Meeting. The second shareholder meeting, which we refer to as the “General Meeting,” will be held at [•] on [•], 2021 at [•] (London time) (or as soon thereafter as the Court Meeting shall have been concluded or adjourned). Shareholders may dial into the Court Meeting and the General Meeting at the following number: [•] in order to listen into the proceedings should they choose to do so, and, for the avoidance of doubt, dialing into either the Court Meeting or the General Meeting shall not entitle Cardtronics shareholders to vote at either meeting via telephone and such shareholders shall not be counted for the purposes of establishing a quorum at either meeting. At the General Meeting, you will be asked to consider and vote upon two additional resolutions: (i) a proposal to give the board of directors of Cardtronics (which we refer to as the “Board”) the authority to take all action necessary to carry the Scheme into effect and to amend Cardtronics’ articles of association as necessary in connection therewith (which we refer to as the “Articles Amendment Proposal”); and (ii) a non-binding advisory proposal to approve certain compensation arrangements for Cardtronics’ named executive officers, which is not required to implement the Scheme. Following approval of the Scheme at the Court Meeting, the Scheme is to be sanctioned by the Court. Further details regarding the Court Meeting, the General Meeting and the Court’s sanctioning process can be found in the proxy statement. The notices for each of the Court Meeting and the General Meeting immediately follow this letter.
After careful consideration, the Board, unanimously of those directors voting, determined that it is in the best interests of Cardtronics and the Cardtronics shareholders for Cardtronics to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Cardtronics shareholders vote in favor of the approval of the Acquisition. Accordingly, the Board recommends that Cardtronics shareholders vote “FOR” the approval of all proposals presented in the proxy statement. In arriving at its recommendation, the Board carefully considered a number
of factors that are described in the proxy statement. You should read these factors, as well as all of the other information contained in the proxy statement, carefully and in their entirety. Mr. Douglas Braunstein, as a director of Cardtronics and the Managing Partner and Founder of Hudson Executive Capital, has not participated in the decision to make the recommendation as set out above.
Attendance at the Court Meeting and General Meeting
In light of the measures implemented by the UK government from time to time in order to address the ongoing COVID-19 pandemic and which, as of the date hereof, include a prohibition on large public gatherings save in certain limited circumstances, together with the associated uncertainty as to any additional and/or alternative measures that may be put in place by the UK government (which we refer to as the “COVID-19 Restrictions”), shareholders and other attendees will not be permitted to attend the Court Meeting or the General Meeting in person, save for the chairman of the relevant meeting and anyone else nominated by the chairman in order to establish a quorum. Cardtronics shareholders can remotely attend by dialing into the following number: [•] and vote at the Court Meeting or the General Meeting in each case via proxy only.
This situation is constantly evolving, and the UK government may change current restrictions or implement further measures relating to the holding of shareholder meetings during the affected period. Any changes to the arrangements for the Court Meeting and the General Meeting will be communicated to Cardtronics shareholders before the meetings, including through the Investor Relations section of our website www.cardtronics.com and by announcement through [•].
Shareholders of Record
Shareholders whose names appear in the register of members of Cardtronics are referred to in the proxy statement as “Shareholders of Record.” Shareholders of Record entitled to vote at each of the shareholder meetings will not be able to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Because the proxy statement relates to two separate Cardtronics shareholder meetings, Shareholders of Record will receive two proxy cards — one proxy card labeled “Court Meeting Proxy Card” for use in respect of the Court Meeting and one proxy card labeled “General Meeting Proxy Card” for use in respect of the General Meeting. Although Shareholders of Record will be unable to attend the meetings in person, it is important that their shares be represented, and Cardtronics therefore urges Shareholders of Record to vote and submit their proxy by Internet, by telephone or by signing, dating, and returning BOTH of the enclosed proxy cards in the accompanying reply envelope as soon as possible.
Beneficial Owners
Shareholders who own Cardtronics ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company) or whose interests in Cardtronics ordinary shares are held in “street name” by a broker, bank, trust or other nominee, are referred to in the proxy statement as “Beneficial Holders.” If you are a Beneficial Holder of Cardtronics ordinary shares, only your broker, bank, trust or other nominee that is a Shareholder of Record can vote your ordinary shares, and the vote cannot be cast unless you either (i) provide instructions to your broker, bank, trust or other nominee (such broker, bank, trust or other nominee having been granted an omnibus proxy by Cede & Co.) or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the ordinary shares as proxy for the Shareholder of Record. Because the proxy statement relates to two separate Cardtronics shareholder meetings, Beneficial Holders will receive voting instructions that cover both the Court Meeting and the General Meeting. If you are a Beneficial Holder of Cardtronics ordinary shares, please vote in accordance with the instructions sent to you by your broker, bank, trustee or nominee as soon as possible.
Your vote at each of the Court Meeting and the General Meeting is very important. The proposed Acquisition cannot be completed unless the Scheme is approved at the Court Meeting and the Articles Amendment Proposal is approved at the General Meeting.
IN ORDER THAT THE COURT CAN BE SATISFIED THAT VOTES CAST CONSTITUTE A FAIR AND REASONABLE REPRESENTATION OF THE OPINION OF THE HOLDERS OF THE SCHEME SHARES (AS DEFINED IN THE SCHEME), IT IS IMPORTANT THAT AS MANY VOTES AS POSSIBLE ARE CAST AT THE COURT MEETING.
For a list of important dates related to the two shareholder meetings, including the record date for Beneficial Holders and Shareholders of Record and the date by which proxy cards or voting instructions must be returned, please see “Expected Timetable of Principal Events” in the proxy statement.
Sincerely,
Edward H. West
Chief Executive Officer
Chief Executive Officer
Houston, Texas
[•], 2021
[•], 2021
None of the Securities and Exchange Commission, any state securities commission or the UK Financial Conduct Authority (which we refer to as the “UK FCA”) has approved or disapproved the Acquisition, passed upon the merits or fairness of the Acquisition or passed upon the adequacy or accuracy of the information contained in this document. Any representation to the contrary is a criminal offense.
For the avoidance of doubt, the proxy statement is not intended to be, and is not, a prospectus for the purposes of the Prospectus Rules made under Part 6 of the UK Financial Services and Markets Act 2000 (as set out in the UK FCA’s Handbook).
The proxy statement is dated [•], 2021 and is first being mailed to Shareholders of Record and Beneficial Holders on or about [•], 2021. The proxy statement comprises an explanatory statement in compliance with Section 897 of the Companies Act 2006.
NOTICE OF COURT MEETING
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IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES COMPANIES COURT (ChD)
[NAME OF JUDGE]
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CLAIM NO. CR-2021-00
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IN THE MATTER OF CARDTRONICS PLC
-and-
IN THE MATTER OF THE COMPANIES ACT 2006
NOTICE IS HEREBY GIVEN that by an Order dated [•], 2021 (which we refer to as the “Order”), made in the above matters, the High Court of Justice in England and Wales (which we refer to as the “Court”) has given permission for a meeting (which we refer to as the “Court Meeting”) to be convened of the holders of the Scheme Shares as of the Voting Record Time (each as defined under the Scheme) for the purpose of considering and, if thought fit, approving (with or without modification) a scheme of arrangement proposed to be made pursuant to Part 26 of the Companies Act 2006 (which we refer to as the “Scheme”) between Cardtronics plc (which we refer to as “Cardtronics”) and the holders of the Scheme Shares, and that such meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] (London time).
A copy of the Scheme and a copy of the explanatory statement required to be furnished pursuant to Section 897 of the Companies Act 2006 are incorporated in the proxy statement of which this notice forms part.
The Scheme will be subject to the subsequent sanction of the Court.
By the said Order, the Court has appointed Mr. Marc Terry or, failing him, Mr. Martin Jackson or, failing him, Mr. Mark Rossi or, failing him, any other director, officer, secretary or other representative of the Company, to act as chairman of the Court Meeting and has directed the chairman to report the result thereof to the Court.
Shareholders of Record and Beneficial Holders
Shareholders whose names appear in the register of members of Cardtronics are referred to in this notice, and in the attached proxy statement, as “Shareholders of Record.” Shareholders of Record at the Voting Record Time are entitled to attend and vote at the Court Meeting and may vote in person at the Court Meeting or they may appoint another person or persons, whether a shareholder of Cardtronics or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the Court Meeting. However, due to the measures implemented by the UK government from time to time in order to address the ongoing COVID-19 pandemic and which, as of the date hereof, include a prohibition on large public gatherings save in certain limited circumstances, together with the associated uncertainty as to any additional and/or alternative measure that may be put in place by the UK government (which we refer to as the “COVID-19 Restrictions”), Shareholders of Record will not be permitted to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Please refer to page 32 of the proxy statement for further details on voting protocols in light of the COVID-19 Restrictions. Shareholders of Record may dial into the Court Meeting at the following number: [•] in order to listen into the proceedings should they choose to do so, and, for the avoidance of doubt, dialing into the Court Meeting shall not entitle Cardtronics shareholders to vote at the Court Meeting via telephone and such shareholders shall not be counted for the purposes of establishing a quorum at the Court Meeting.
Shareholders who own Cardtronics ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company (which we refer to as “DTC”)) or otherwise are held in “street name” by a broker, bank, trust or other nominee, are referred to in this notice and in the attached proxy statement as “Beneficial Holders.” If you are a Beneficial Holder, only your broker, bank, trust or other
nominee that is a Shareholder of Record can vote your Cardtronics ordinary shares, and the vote cannot be cast unless you either (i) provide instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the ordinary shares as proxy for the Shareholder of Record (such broker, bank, trust or other nominee having been granted an omnibus proxy by the Shareholder of Record).
All Shareholders of Record and Beneficial Holders at the close of business on [•], 2021, the record date for the Court Meeting, will receive notice of the Court Meeting.
Right to Appoint a Proxy; Procedure for Appointment
A proxy card labeled “Court Meeting Proxy Card,” for use at the Court Meeting, has been provided with this Notice to Shareholders of Record. To be valid, Court Meeting Proxy Cards should be completed and returned in accordance with the instructions set out on the form. It is requested that the Court Meeting Proxy Card (together with any power of attorney or other authority, if any, under which it is signed, or a duly certified copy thereof) be returned in the prepaid envelope provided or that you submit your proxy by telephone or through the Internet as soon as possible, and not later than [•] [a.m.]/[p.m.] (London time)] on [•], 2021. However, if not so lodged by the relevant time, Court Meeting Proxy Cards (together with any such authority, if applicable) may be completed and emailed to [email address] at any time before the start of the Court Meeting.
A space has been included in the Court Meeting Proxy Card to allow Shareholders of Record to specify the number of shares in respect of which that proxy is to be appointed. A proxy need not be a Shareholder of Record, but such proxy must attend the Court Meeting to represent a Shareholder of Record. In light of the COVID-19 Restrictions, proxies (other than the chair of the Court Meeting) who do seek to attend may not be granted access to the Court Meeting in person. Accordingly, Shareholders of Record are strongly encouraged to appoint the chair of the Court Meeting as their proxy before the relevant deadline. A separate proxy card should be used for each proxy appointment. If you require additional proxy cards, please contact Georgeson LLC, Shareholders, Banks and Brokers Call Toll Free: 888-666-2594. If your Shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee.
Although completion and return of a proxy card, or the appointment of a proxy electronically, will not ordinarily prevent a Shareholder of Record at the Voting Record Time from attending, speaking and voting in person at the Court Meeting, or any adjournment thereof, if such Shareholder of Record wishes and is entitled to do so as described in the accompanying proxy statement, due to the COVID-19 Restrictions, a Shareholder of Record will not be granted access to the Court Meeting in person and accordingly Shareholders of Record are strongly encouraged to appoint the chair of the Court Meeting as their proxy before the relevant deadline.
Beneficial Holders of Cardtronics ordinary shares will receive voting instructions from their broker, bank, trust or other nominee for the Court Meeting. Beneficial Holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such person to vote their Cardtronics ordinary shares. Please note that holders of Cardtronics ordinary shares through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for the submission by Shareholders of Record and such holders should, therefore, follow the separate instructions that will be provided by such person.
If you are a Beneficial Holder then, as a matter of English law, your name is not entered in Cardtronics’ register of members. Accordingly, if you wish to vote directly (i.e., in your own name) at the Court Meeting, you must become a Shareholder of Record by arranging for the completion of a stock transfer form by the applicable Shareholder of Record in respect of the Cardtronics ordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form and related documentation to Cardtronics’ transfer agent, Computershare Trust Company N.A., prior to the Voting Record Time. Beneficial Holders who wish to attend and vote directly at the Court Meeting should take care to send such stock transfer form in respect of their Cardtronics ordinary shares to permit processing to be completed by the Transfer Agent prior to the Voting Record Time. However, please refer to page 32 of the proxy statement for further details on voting protocols in light of the COVID-19 Restrictions.
Shareholders Entitled to Vote; Voting Record Time
The entitlement of Shareholders of Record to vote at the Court Meeting or any adjournment thereof and the number of votes that may be cast at the Court Meeting will be determined by reference to the register of members of Cardtronics at [•] [a.m.]/[p.m.] (London time) on [•], 2021 (which we refer to as the “Voting Record Time”). Changes to the register of members after such time shall be disregarded in determining the rights of any person to vote at the Court Meeting.
Only Beneficial Holders as of the Voting Record Time, will be entitled to direct their broker, bank, trust or other nominee how to vote their Cardtronics ordinary shares at the Court Meeting.
Joint Holders
In the case of joint holders of Cardtronics ordinary shares that are Shareholders of Record, the vote of the senior holder who tenders a vote by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions), will be accepted to the exclusion of the vote(s) of the other joint holder(s). For this purpose, seniority will be determined by the order in which the names of the holders stand in Cardtronics’ register of members.
Corporate Representatives
As an alternative to appointing a proxy, any Shareholder of Record that is a corporation or other entity may appoint one or more corporate representatives who may exercise on its behalf all its powers as a shareholder, provided that if two or more valid appointments are received in respect of the same share in relation to the same meeting, the one which is last sent shall be treated as replacing and revoking the other or others. If Cardtronics is unable to determine which is last sent, the one which is last received shall be so treated. If Cardtronics is unable to determine either which is last sent or which is last received, none of such appointments shall be treated as valid in respect of such share.
Voting on a Poll
In accordance with Cardtronics’ articles of association and the directions of the Court, the vote on the Scheme will be taken on a poll. Voting on a poll means that each share represented by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions) will be counted in the vote. As soon as practicable after the Court Meeting, the results of the voting at the Court Meeting and the number of votes cast for and against and the number of votes actively withheld in respect of each resolution will be made available online at https://ir.cardtronics.com and a Current Report on Form 8-K reporting such results will be filed with the Securities and Exchange Commission.
YOUR VOTE IS IMPORTANT
Your vote at the Court Meeting is very important. It is important that, for the Court Meeting in particular, as many votes as possible are cast so that the Court may be satisfied that there is a fair and reasonable representation of the opinion of holders of the Scheme Shares (as defined in the Scheme). You are encouraged to submit your votes as instructed in the Court Meeting Proxy Card or voting instructions for the Court Meeting by appointing the chair of the Court Meeting as your proxy as soon as possible. For specific instructions on voting, please refer to the Court Meeting Proxy Cards and voting instructions with the proxy voting materials.
Dated [•], 2021
Ashurst LLP
Solicitors for the Company
Ashurst LLP
Solicitors for the Company
NOTICE OF GENERAL MEETING
CARDTRONICS PLC
(a public limited company having its registered office at Building 4, 1st Floor Trident Place, Hatfield, Hertfordshire, United Kingdom, AL10 9UL with company number 10057418)
NOTICE OF GENERAL MEETING
TO BE HELD ON [•] 2021
To the Shareholders of Cardtronics plc:
NOTICE IS HEREBY GIVEN that a GENERAL MEETING of Cardtronics plc (which we refer to as “Cardtronics” or the “Company”) will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] [a.m./p.m.] (London time) (or as soon thereafter as the Court Meeting (as defined in the proxy statement of which this notice forms part) shall have been concluded or adjourned) for the purpose of considering and, if thought fit, passing the following resolutions in connection with the proposed acquisition by Catalyst Holdings Limited (“BidCo”), which is affiliated with certain investment funds managed by affiliates of Apollo Global Management, Inc., of all of the issued and to be issued ordinary shares of Cardtronics pursuant to the terms of an Acquisition Agreement and a court-sanctioned scheme of arrangement (which we refer to as the “Acquisition”), one of which is a special resolution and one of which is an ordinary resolution:
SPECIAL RESOLUTION: ARTICLES AMENDMENT PROPOSAL
THAT:
for the purposes of giving effect to the scheme of arrangement (which we refer to as the “Scheme”) between Cardtronics and the holders of the Scheme Shares (as defined in the Scheme):
i.
the directors of Cardtronics (or a duly authorized committee of the directors) be authorized to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect; and
ii.
with effect from the passing of this special resolution, the articles of association of the Company be amended by the adoption and inclusion of the following new article 145 after the existing article 144:
“145. Scheme of Arrangement
145.1 In this article, references to the Scheme are to the Scheme of Arrangement under Part 26 of the Companies Act 2006 between the Company and the holders of Scheme Shares (as defined in the Scheme) dated [•], 2021 in its original form or with or subject to any modification, addition or condition approved or imposed by the Court and mutually acceptable to the Company and Catalyst Holdings Limited (the “Buyer”), and save as defined in this article, expressions defined in the Scheme shall have the same meanings in this article.
145.2 Notwithstanding either any other provision of these articles or the terms of any resolution whether ordinary or special passed by the Company in general meeting, if the Company issues any shares (other than to the Buyer or its nominee(s)) on or after the adoption of this article but at or before the Scheme Record Time (as defined in the Scheme), such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for the purposes of the Scheme) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.
145.3 Notwithstanding any other provision of these articles, if any shares are issued to any person (other than to the Buyer or its nominee(s)) (the “New Member”) after the Scheme Record Time (the “Disposal Shares”), such Disposal Shares shall be issued on the terms that the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) will, subject to the Scheme becoming effective in accordance with its terms, upon the Scheme becoming effective or, if later, upon the
issue of the Disposal Shares, be immediately transferred to the Buyer (or as the Buyer may otherwise direct in writing to the Company) who shall be obliged to acquire all such Disposal Shares in consideration of the payment by or on behalf of the Buyer to the New Member of an amount in cash for each Disposal Share equal to the consideration that the New Member would have been entitled to had each Disposal Share been a Scheme Share.
145.4 On any reorganisation of, or material alteration to, the share capital of the Company (including, without limitation, any subdivision and/or consolidation) carried out after the Effective Time (as defined in the Scheme), the value of the consideration per Disposal Share to be paid under paragraph (145.3) above shall be adjusted by the directors of the Company in such manner as the auditors of the Company or an independent investment bank selected by the Company may determine to ensure (as nearly as may be) parity of treatment with that provided for by paragraph (145.3) above. References in this article to shares shall, following such adjustment, be construed accordingly.
145.5 To give effect to any transfer required by this article, the Company may appoint any person as attorney and/or agent for the New Member to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favour of the Buyer (or as the Buyer may otherwise direct in writing to the Company) and do all such other things and execute and deliver all such documents as may in the opinion of the attorney or agent be necessary or desirable to vest the Disposal Shares in the Buyer (or as the Buyer may otherwise direct in writing to the Company) and pending such vesting to exercise all such rights attaching to the Disposal Shares as the Buyer may direct. If an attorney or agent is so appointed, the New Member shall not thereafter (except to the extent that the attorney fails to act in accordance with the directions of the Buyer) be entitled to exercise any rights attaching to the Disposal Shares unless so agreed in writing by the Buyer. The Company may give good receipt for the purchase price of the Disposal Shares and may register the Buyer as holder of the Disposal Shares and issue to it certificate(s) for the same. The attorney or agent shall be empowered to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder). The Company shall not be obliged to issue a certificate to the New Member for any Disposal Shares. Unless otherwise set forth in the Scheme, the Buyer shall settle the consideration due to the New Member pursuant to paragraph 145.3 above by sending a cheque drawn on a US clearing bank (or shall procure that such a cheque is sent) in favour of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) for the purchase price of such Disposal Shares, as described in paragraph 145.3 above (and adjusted pursuant to paragraph 145.4 above, as applicable), as soon as possible and in any event no later than 14 days after the date on which the Disposal Shares are issued to the New Member.
145.6 If the Scheme shall not have become effective by the date referred to in clause 6.2 of the Scheme (or such later date, if any, as the Buyer and the Company may agree and the Court may approve (if such approval is required)), this article 145 shall be of no effect.
145.7 Notwithstanding any other provision of these articles, both the Company and the directors may refuse to register the transfer of any Scheme Shares effected between the Scheme Record Time and the effective date of the Scheme other than to the Buyer and/or its nominees pursuant to the Scheme.”
Approval of the Scheme by Cardtronics shareholders is a condition to the consummation of the Acquisition, and as such the Scheme will not become effective if the Scheme is not approved at the General Meeting.
ORDINARY RESOLUTION (NON-BINDING):
ADVISORY TRANSACTION-RELATED COMPENSATION PROPOSAL
ADVISORY TRANSACTION-RELATED COMPENSATION PROPOSAL
To consider and, if thought fit, approve, in accordance with Section 14A of the Securities Exchange Act of 1934, as amended, on an advisory, non-binding basis, the compensation that will or may be paid or become payable to Cardtronics’ named executive officers that is based on or otherwise relates to the Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable as more fully described in the proxy statement accompanying this notice.
NOTES
In accordance with the Company’s articles of association, all proposals will be taken on a poll. Voting on a poll means that each share represented by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions) will be counted in the vote. As soon as practicable after the General Meeting, the results of the voting at the General Meeting and the number of votes cast for and against and the number of votes actively withheld in respect of each resolution will be made available online at https://ir.cardtronics.com and a Form 8-K reporting such results will be filed with the United States Securities and Exchange Commission.
The Articles Amendment Proposal will be proposed as a special resolution, which means, provided that a quorum is present, the Articles Amendment Proposal will be approved if 75% or more of the voting rights represented by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions) at the meeting are cast in favor thereof. Approval of the Articles Amendment Proposal is a condition to the consummation of the Acquisition, and as such the Scheme will not become effective if the Articles Amendment Proposal is not approved at the General Meeting.
The Advisory Transaction-Related Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, the Advisory Transaction-Related Compensation Proposal will be approved if a simple majority of the voting rights represented by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions) at the meeting are cast in favor thereof. Because the vote on this compensation proposal is advisory in nature only, it will not be binding on the Cardtronics Board of Directors (which we refer to as the “Board”). Approval of the Advisory Transaction-Related Compensation Proposal is not required in order to complete the Acquisition or for the Scheme to become effective.
These matters are more fully described (and the full text of each proposal is set out) in this proxy statement, which shall be deemed to form part of this notice. The Board believes that all the proposals being put to the shareholders would promote the success of Cardtronics for the benefit of its shareholders as a whole. The Board, unanimously of those directors voting, recommends that you vote “FOR” each of the Articles Amendment Proposal and the Advisory Transaction-Related Compensation Proposal. Mr. Douglas Braunstein, as a director of Cardtronics and the Managing Partner and Founder of Hudson Executive Capital, has not participated in the decision to make the recommendation as set out above.
Shareholders whose names appear in the register of members of Cardtronics are referred to in this notice, and in the attached proxy statement, as “Shareholders of Record.” Only Shareholders of Record at [•][a.m./p.m.] [(London time)] on [•] 2021 (which we refer to as the “Voting Record Time”), are ordinarily entitled to attend and vote at the General Meeting, and they may vote in person at the General Meeting or they may appoint another person or persons, whether a shareholder of Cardtronics or not, as their proxy or proxies, to exercise all or any of their rights to attend, speak and vote at the General Meeting. However, due to the measures implemented by the UK government from time to time in order to address the ongoing COVID-19 pandemic and which, as of the date hereof, include a prohibition on large public gatherings save in certain limited circumstances, together with the associated uncertainty as to any additional and/or alternative measure that may be put in place by the UK government (which we refer to as the “COVID-19 Restrictions”), Shareholders of Record will not be permitted to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Please refer to page 32 of this document for attendance protocols in light of the COVID-19 Restrictions. Shareholders of record may dial into the General Meeting at the following number: [•] in order to listen into the proceedings should they choose to do so, and, for the avoidance of doubt, dialing into the General Meeting shall not entitle Cardtronics shareholders to vote at the General Meeting via telephone and such shareholders shall not be counted for the purposes of establishing a quorum at the General Meeting.
In the case of joint holders of Cardtronics ordinary shares that are Shareholders of Record, the vote of the senior holder who tenders a vote by proxy (as attendance in person will not be permitted given the COVID-19 Restrictions), will be accepted to the exclusion of the vote(s) of the other joint holder(s). For this purpose, seniority will be determined by the order in which the names of the holders stand in the Company’s register of members.
As an alternative to appointing a proxy, any Shareholder of Record that is a corporation or other entity may appoint one or more corporate representatives who may exercise on its behalf all its powers as a shareholder, provided that if two or more valid appointments are received in respect of the same share in relation to the same meeting, the one which is last sent shall be treated as replacing and revoking the other or others. If Cardtronics is unable to determine which is last sent, the one which is last received shall be so treated. If Cardtronics is unable to determine either which is last sent or which is last received, none of such appointments shall be treated as valid in respect of such share.
Shareholders who own Cardtronics ordinary shares for which Cede & Co. is the registered holder (as nominee for The Depository Trust Company (which we refer to as “DTC”)) or otherwise are held in “street name” by a broker, bank, trust or other nominee, are referred to in this notice and in the attached proxy statement as “Beneficial Holders.” Only Beneficial Holders as of the Voting Record Time will be entitled to direct their broker, bank, trust or other nominee how to vote their Cardtronics ordinary shares at the General Meeting. If you are a Beneficial Holder, only your broker, bank, trust or other nominee that is a Shareholder of Record can vote your Cardtronics ordinary shares and the vote cannot be cast unless you either (i) provide instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the ordinary shares as proxy for the Shareholder of Record (such broker, bank, trust or other nominee having been granted an omnibus proxy by Cede & Co.). You should follow the directions provided by your broker, bank, trust or other nominee regarding how to instruct such person to vote your Cardtronics ordinary shares.
All Shareholders of Record and Beneficial Holders at the close of business on [•], 2021, the record date for the General Meeting, will receive notice of the General Meeting.
A proxy card labeled “General Meeting Proxy Card,” for the General Meeting, has been provided with this notice to Shareholders of Record. Instructions for its use are set out on the proxy card. To be valid, proxy cards should be completed and returned in accordance with the instructions set out on the form. It is requested that the General Meeting Proxy Card (together with any power of attorney or other authority, if any, under which it is signed, or a duly certified copy thereof) be returned in the prepaid envelope provided or that your proxy be submitted by telephone or through the Internet as soon as possible, and not later than [•][a.m.]/[p.m.] [(London time)] on [•], 2021.
A space has been included in the General Meeting Proxy Card to allow Shareholders of Record to specify the number of shares in respect of which that proxy is to be appointed. A proxy need not be a Shareholder of Record, but such proxy must attend the General Meeting to represent a Shareholder of Record. In light of the COVID-19 Restrictions, proxies (other than the chair of the General Meeting) will not be granted access to the General Meeting in person. Accordingly, Shareholders of Record are strongly encouraged to appoint the chair of the General Meeting as their proxy before the relevant deadline as this will be the only way for Shareholders of Record to vote. A separate proxy card should be used for each proxy appointment. If you require additional proxy cards, please contact Georgeson LLC at 1290 Avenue of the Americas, 9th Floor, New York, New York 10104, Shareholders, Banks and Brokers Call Toll Free: 888-666-2594. If your Shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee.
Although completion and return of a proxy card, or the appointment of a proxy electronically, will not ordinarily prevent a holder of Cardtronics ordinary shares who is a Shareholder of Record at the Voting Record Time from attending, speaking and voting in person at the General Meeting, or any adjournment thereof, if such holder of ordinary shares wishes and is entitled to do so, due to the COVID-19 Restrictions, a Shareholder of Record will not be granted access to the General Meeting in person, save for the chairman of the relevant meeting and anyone else nominated by the chairman in order to establish a quorum.
Beneficial Holders of Cardtronics ordinary shares will receive voting instructions from their broker, bank, trust or other nominee for the General Meeting. Beneficial Holders should follow the directions provided by their broker, bank, trust or other nominee regarding how to instruct such person to vote their Cardtronics ordinary shares. Please note that holders of Cardtronics ordinary shares through a broker, bank, trust or other nominee may be required to submit voting instructions to their applicable broker, bank, trust or nominee at or prior to the deadline applicable for the submission by Shareholders of Record and such holders should, therefore, follow the separate instructions that will be provided by such person.
If you are a Beneficial Holder then, as a matter of English law, your name is not entered in the Company’s register of members. Accordingly, if you wish to vote directly (i.e., in your own name) at the General Meeting, you must become a Shareholder of Record by arranging for the completion of a stock transfer form by the applicable Shareholder of Record in respect of the Cardtronics ordinary shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form and related documentation to the Company’s transfer agent, Computershare Trust Company N.A., prior to the Voting Record Time. Beneficial Holders who wish to vote directly at the General Meeting should take care to send such stock transfer form in respect of their ordinary shares to permit processing to be completed by [•] prior to the Voting Record Time. In addition, due to the COVID-19 Restrictions, in order to vote their ordinary shares, a Beneficial Holder who becomes a Shareholder of Record must appoint the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Please refer to page 32 of this document for further details on voting protocols in light of the COVID-19 Restrictions.
If you have returned a proxy card or otherwise voted, you may revoke prior instructions and cast your vote by following the procedures described in the accompanying proxy statement.
YOUR VOTE IS IMPORTANT
Your vote at the General Meeting is very important. You are therefore urged to submit the General Meeting Proxy Card or voting instructions for the General Meeting by appointing the chair of the General Meeting as your proxy as soon as possible. For specific instructions on voting, please refer to the proxy statement accompanying this notice of meeting or the proxy cards and voting instructions included with the proxy voting materials.
BY ORDER OF THE BOARD OF DIRECTORS
Aimie Killeen, General Counsel and Secretary
Dated [•], 2021
Dated [•], 2021
Registered office: [•]
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SUMMARY TERM SHEET
This summary highlights certain information in this proxy statement but may not contain all of the information that may be important to you. You should carefully read the entire proxy statement and the attached Annexes and the other documents to which this proxy statement refers you for a more complete understanding of the matters being considered at the Court Meeting or the General Meeting. In addition, this proxy statement incorporates by reference important business and financial information about Cardtronics plc. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions in the section entitled “Where You Can Find More Information.”Unless the context otherwise indicates, we refer to Cardtronics plc as “Cardtronics,”the “Company,” “we,” “us” or “our.”
Because the Acquisition is a “going private” transaction, the Company, Catalyst Holdings Limited (which we refer to as “BidCo”) and Hudson Executive Capital (which we refer to as “HEC”) have filed with the Securities and Exchange Commission (which we refer to as the “SEC”) a Transaction Statement on Schedule 13E-3 with respect to the Acquisition (as amended from time to time, which we refer to as the “Schedule 13E-3”). You may obtain additional information about the Schedule 13E-3 under the caption “Where You Can Find Additional Information.”
The Parties
Cardtronics
Cardtronics provides convenient automated consumer financial services through its global network of automated teller machines and multi-function financial services kiosks (collectively referred to in this proxy statement as “ATMs”). As of September 30, 2020, we were the world’s largest ATM owner/operator, providing various services to approximately 285,000 ATMs globally. Our website address is www.cardtronics.com. The information provided on our website is not part of this proxy statement and is not incorporated by reference in this proxy statement by this or any other reference to our website in this proxy statement. Additional information about the Company is contained in our public filings, which are incorporated by reference in this proxy statement. See the section entitled “Where You Can Find More Information,” beginning on page 125, for more information.
BidCo
BidCo is a private limited company incorporated in England and Wales that was formed on December 11, 2020, solely for the purpose of engaging in the transactions contemplated by the Acquisition Agreement. BidCo has not engaged in any business activities other than in connection with the transactions contemplated by the Acquisition Agreement.
BidCo is an affiliate of certain investment funds (which we refer to as the “Apollo Funds”) managed by affiliates of Apollo Global Management, Inc. (together with its subsidiaries, collectively referred to in this proxy statement as “AGM”). AGM is a leading global alternative investment manager with offices in New York, Los Angeles, San Diego, Houston, Bethesda, London, Frankfurt, Madrid, Luxembourg, Mumbai, Delhi, Singapore, Hong Kong, Shanghai and Tokyo. AGM had assets under management of approximately $433 billion as of September 30, 2020 in private equity, credit and real assets funds invested across a core group of nine industries where AGM has considerable knowledge and resources. AGM’s shares are listed on the NYSE under the symbol “APO”.
The Acquisition (see page 88)
On December 15, 2020, the Company and BidCo entered into an Acquisition Agreement (which we refer to as the “Acquisition Agreement”), pursuant to which BidCo has agreed to acquire the Company by means of a court-sanctioned scheme of arrangement under Part 26 of the Companies Act (which we refer to as the “Scheme”). Pursuant to the Scheme and subject to the terms and conditions of the Acquisition Agreement, on the effective date of the Acquisition, BidCo will acquire all of the Company’s issued and to be issued ordinary shares, nominal value $0.01 per share (which we refer to as “Shares”) other than (a) Shares legally or beneficially held by BidCo or any of its subsidiaries (or any nominee on their behalf), (b) any Shares held in treasury or owned, directly or indirectly, by the Company or any of its subsidiaries and (c) any
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Shares acquired or to be acquired by BidCo or its designee(s) pursuant to a rollover and contribution agreement between HEC and BidCo (which we refer to as the “Contribution Agreement”), none of which will be covered by the Scheme (such excluded shares, we refer to as the “Excluded Shares”), for $35.00 per Share (which we refer to as the “Per Share Consideration”) (which we refer to as the “Acquisition”). With the exception of Mr. Douglas Braunstein, the board of directors of the Company (which we refer to as the “Board”) has approved the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition. Mr. Braunstein is both a director of the Company and the Managing Partner and Founder of HEC, an approximate 19.4% shareholder of the Company. HEC has agreed to rollover certain of its Shares in connection with the Acquisition, and Mr. Braunstein did not participate in any discussions or deliberations with the other members of the Board with respect to the Acquisition, the review of strategic alternatives and related matters and recused himself from all approvals in connection with the Acquisition.
The Court Meeting and the General Meeting; Board Recommendation (see pages 31, 50)
The Court Meeting will be held at the offices of Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] [a.m.]/[p.m.] (London time). The General Meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] (London time) (or as soon thereafter as the Court Meeting shall have concluded or been adjourned).
At the Court Meeting, the Company Shareholders are being asked to consider and approve the Scheme (which we refer to as the “Court Scheme Proposal”).
At the General Meeting, the Company Shareholders are being asked to consider and approve the following proposals:
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Articles Amendment Proposal: To give the Board the authority to take all necessary action to carry the Scheme into effect and to amend the Company’s articles of association as described in “Articles Amendment Proposal” below at the General Meeting.
2.
Advisory Transaction-Related Compensation Proposal: To approve, in accordance with Section 14A of the Exchange Act, on an advisory, non-binding 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 Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable.
The approval of the Court Scheme Proposal and the Articles Amendment Proposal are each a condition to the consummation of the Acquisition, and as such the Scheme will not become effective if the Court Scheme Proposal is not approved at the Court Meeting and the Articles Amendment Proposal is not approved at the General Meeting.
The approval of the Advisory Transaction-Related Compensation Proposal is not a condition to the consummation of the Acquisition. In addition, as the Advisory Transaction-Related Compensation Proposal is non-binding, the result of the vote will not require the Board to take any action. Subject to the satisfaction or waiver of the other conditions to the consummation of the Acquisition, the Scheme will become effective and the compensation may be paid or become payable.
The Acquisition is to be implemented by means of the Scheme. The procedure requires approvals by the Company Shareholders at the Court Meeting and the General Meeting and sanction of the Scheme by the High Court of Justice in England and Wales (which we refer to as the “Court”).
After careful consideration, on December 14, 2020, the Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act 2006 (which we refer to as the “Companies Act”), approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Accordingly, the Board recommends that the Company Shareholders vote “FOR” the Court Scheme Proposal, “FOR” the Articles Amendment Proposal and
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“FOR” the Advisory Transaction-Related Compensation Proposal. For a complete description of the recommendation of the Board, see “The Acquisition — Recommendation of the Board” and “The Acquisition — Reasons for Recommending the Approval of the Acquisition; Fairness of the Acquisition” each beginning on page 50. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
Voting Record Time (see page 31)
Shareholders of Record as of [•] (London time) on [•], 2021 (which we refer to as the “Voting Record Time”) are entitled to vote at the Court Meeting and the General Meeting. Changes to entries on the Company’s register of members after the Voting Record Time will be disregarded in determining the rights of any person to attend or vote at the Court Meeting and the General Meeting. Due to the COVID-19 Restrictions, Shareholders of Record will not be able to attend the Court Meeting or the General Meeting and, in order to vote their Shares must appoint the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline.
Due to the measures implemented by the UK government from time to time in order to address the ongoing COVID-19 pandemic and which, as of the date hereof, include a prohibition on large public gatherings save in certain limited circumstances, together with the associated uncertainty as to any additional and/or alternative measure that may be put in place by the UK government (which we refer to as the “COVID-19 Restrictions”), Shareholders of Record will not be permitted to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Please refer to page [•] of this proxy statement for further details on attendance protocols in light of the COVID-19 Restrictions.
The Company Shareholders who own Shares for which Cede & Co. is the registered holder (as nominee for the Depository Trust Company (which we refer to as “DTC”)) or whose interests in Shares are held in “street name” by a broker, bank, trust or other nominee, are referred to in this proxy statement as “Beneficial Holders.” Only Beneficial Holders at the Voting Record Time will have the right to direct their broker, bank, trust or other nominee how to vote their Ordinary Shares at the Court Meeting and the General Meeting.
Shareholders of Record and Beneficial Holders at the Voting Record Time will receive notice of the Court Meeting and the General Meeting.
As of [•], there were [•] Shares outstanding, held by [•] Shareholders of Record.
Vote Required; Abstentions and Broker Non-votes (see pages 32, 34, 37)
Before the Court’s sanction can be sought for the Scheme, the Scheme must be approved by the Company Shareholders at the Court Meeting. The Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Shares at the Voting Record Time, in each case, present and voting (and entitled to vote), either in person or by proxy.
The Company Shareholders are being asked to consider and approve the Articles Amendment Proposal at the General Meeting. This will be proposed as a special resolution, which means, provided that a quorum is present, the Articles Amendment Proposal will be approved if at least 75% of the votes cast on the Articles Amendment Proposal are cast in favor thereof. The Articles Amendment Proposal will authorize the Board to implement the Scheme and to deal with certain ancillary matters, including necessary amendments to the Company’s articles of association. The Company Shareholders are also being asked to consider and approve, on a non-binding, advisory basis, the Advisory Transaction-Related Compensation Proposal at the General Meeting. The Advisory Transaction-Related Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast on the Advisory Transaction-Related Compensation Proposal are cast in favor thereof.
An abstention occurs when a shareholder abstains from voting (either by person or by proxy) on one or more of the proposals. Broker non-votes occur when a broker, bank, trust or other nominee returns a proxy
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but does not have authority to vote on a particular proposal. In connection with the General Meeting, abstentions and broker non-votes will be considered in determining the presence of a quorum. As abstentions and broker non-votes are not considered votes cast under the Companies Act, for purposes of determining whether the Court Scheme Proposal, the Articles Amendment Proposal and the Advisory Transaction-Related Compensation Proposal have been approved in accordance with the Companies Act, abstentions and broker non-votes will not have any effect on the outcome of the vote.
The votes on each proposal are separate and apart from the votes on the other proposals. Accordingly, you may vote to approve certain of the proposals and vote not to approve other proposals.
Irrevocable Undertakings (see page 116, Annex D and Annex E)
On December 15, 2020, HEC delivered to the Company a deed of irrevocable undertaking (which we refer to as the “HEC Undertaking”) pursuant to which, HEC agreed, among other things, to vote its Shares in favor of the Acquisition and against any proposal that would impede or frustrate the Acquisition. The HEC Undertaking represents an aggregate of 8,644,880 Shares, or approximately 19.4% of the outstanding Shares as of December 15, 2020.
In addition, on December 15, 2020, each member of the Board that holds Shares (including Mr. Braunstein) delivered to the Company a deed of irrevocable undertaking (which we refer to, collectively, as the “Director Undertakings”) pursuant to which each director agreed, among other things, to vote his or her Shares in favor of the Acquisition and against any proposal that would impede or frustrate the Acquisition. The Director Undertakings represent an aggregate of 359,185 Shares, or approximately 0.8% of the outstanding Shares as of December 15, 2020 (excluding 8,644,880 Shares beneficially owned by HEC and Mr. Braunstein that are included in the HEC Undertaking).
The HEC Undertaking and the Director Undertakings will terminate under certain circumstances.
The foregoing description of the HEC Undertaking and the Director Undertakings are each qualified in their entirety by reference to the full text of each such undertaking. A Form of Director Undertaking is filed with this proxy statement as Annex D and the HEC Undertaking is filed with this proxy statement as Annex E, each of which is incorporated by reference herein.
Position of the HEC Filing Persons as to the Fairness of the Acquisition
Under SEC rules governing “going-private” transactions, Hudson Executive Capital LP, HEC Management GP LLC, HEC Master Fund LP, HEC SPV I LP and Douglas Braunstein (which we refer to as, collectively, the “HEC Filing Persons”) are required to express their belief as to the fairness of the Acquisition to the Company’s unaffiliated shareholders. The HEC Filing Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the HEC Filing Persons as to the fairness of the Acquisition are not intended and should be not be construed as a recommendation to any Company Shareholder regarding how to vote on the proposals in this proxy statement. The HEC Filing Persons have interests in the Acquisition that are different from, and/or in addition to, those of the unaffiliated shareholders of the Company by virtue of their continuing interests in the indirect parent of BidCo after the completion of the Acquisition.
The HEC Filing Persons have not performed, or engaged a financial advisor to perform, any valuation or other analysis for the purposes of assessing the fairness of the Acquisition to the Company’s unaffiliated shareholders. The Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Mr. Braunstein, a member of the Board and Managing Partner and Founder of the HEC, did not participate in any discussions or deliberations of the Board with respect to the Acquisition, the review of strategic alternatives and related matters and recused himself from approvals in connection with the Acquisition. The other HEC Filing Persons did not otherwise
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participate in the deliberations of the Board in connection with the Acquisition. The HEC Filing Persons do not believe they have or had any fiduciary duty to the Company or its shareholders, including with respect to the Acquisition Agreement and its terms and conditions, except for Mr. Braunstein in his capacity as a director of the Company.
The HEC Filing Persons believe that the Acquisition is substantively and procedurally fair to the Company’s unaffiliated shareholders. For additional information, see the section entitled “Position of the HEC Filing Persons as to the Fairness of the Acquisition’’ beginning on page 53.
Position of the Apollo Filing Persons as to the Fairness of the Acquisition
We refer to AGM, the Apollo Funds and BidCo collectively as the “Apollo Filing Persons.” The rules of the SEC governing “going-private” transactions require the Apollo Filing Persons, which may be deemed affiliates of the Company for purposes of the Acquisition, to express their belief as to the fairness of the Acquisition to the Company Shareholders (other than HEC). The Apollo Filing Persons are making the statements included in this section of this proxy statement solely for the purposes of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The Apollo Filing Persons’ views as to fairness of the Acquisition should not be construed as a recommendation to any Company Shareholder as to whether such Company Shareholder should vote his, her or its Shares in favor of the Acquisition.
The Apollo Filing Persons attempted to negotiate the terms of a transaction that would be most favorable to them, and not to the Company Shareholders, and, accordingly, did not negotiate the Acquisition Agreement with a goal of obtaining terms that were fair to the Company Shareholders. None of the Apollo Filing Persons believes that it has or had any fiduciary duty to the Company Shareholders, including with respect to the Acquisition and its terms. The Company Shareholders (other than HEC) were, as described elsewhere in this proxy statement, represented by the Board that negotiated with BidCo on their behalf, with the assistance of the Company’s legal and financial advisors.
The Apollo Filing Persons did not participate in the deliberations of the Board or receive advice from the Company, the Board or their respective legal or financial advisors relating to the fairness of the Acquisition or rely on the Board’s conclusions and analyses as to the fairness of the Acquisition or the Per Share Consideration. The Apollo Filing Persons did not receive an opinion with respect to the fairness of the Acquisition. The Apollo Filing Persons believe, however, that the Acquisition is substantively fair to the Company Shareholders. For additional information, see the section entitled “Position of the Apollo Filing Persons as to the Fairness of the Acquisition” beginning on page 56.
Purposes and Reasons of the HEC Filing Persons for the Acquisition
Under the SEC Rules governing “going-private” transactions, the HEC Filing Persons are required to express their purposes and reasons for the Acquisition to the Company’s unaffiliated shareholders. The HEC Filing Persons are making the statements in this section solely for the purposes of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the HEC Filing Persons should not be construed as a recommendation to any of the Company Shareholders to approve the proposals in this proxy statement. The HEC Filing Persons do not make any recommendation regarding how Company Shareholders should vote with respect to the proposals in this proxy statement.
For the HEC Filing Persons, the purpose of the Acquisition is to effectuate the transactions contemplated by the Acquisition Agreement and the Contribution Agreement, which will allow the HEC Filing Persons to own equity interests in the indirect parent of BidCo and to bear the rewards and risks of such ownership after the Acquisition is completed and the Shares cease to be publicly traded. For additional information, see the section entitled “Purposes and Reasons of the HEC Filing Persons for the Acquisition’’ beginning on page 59.
Purposes and Reasons of the Apollo Filing Persons for the Acquisition
Under the SEC rules governing “going-private” transactions, the Apollo Filing Persons may be deemed to be affiliates of the Company and, therefore, are required to express their purpose and reason for the Acquisition to the Company’s “unaffiliated security holders,” as such term is defined under Rule 13e-3 of the
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Exchange Act. The Apollo Filing Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the Apollo Filing Persons should not be construed as a recommendation to any Company Shareholder as to whether such Company Shareholder should vote his, her or its Shares in favor of the Acquisition.
The Apollo Filing Persons attempted to negotiate with the Board the terms of a transaction that would be most favorable to the Apollo Filing Persons and not necessarily to the Company Shareholders (other than HEC), and, accordingly, did not negotiate the Acquisition Agreement with a goal of obtaining terms that were fair to such Company Shareholders.
For the Apollo Filing Persons, the purpose of the Acquisition is to enable BidCo to acquire all outstanding equity of the Company (other than certain equity owned by HEC), so that BidCo can acquire control of the Company and operate it as a privately held company, which in turn will allow BidCo to bear the rewards and risk of the ownership of the Company after the Shares cease to be publicly traded. For additional information, see the section entitled “Purposes and Reasons of the Apollo Filing Persons for the Acquisition” beginning on page 60.
Opinion of Goldman Sachs & Co. LLC (see page 64 and Annex C)
At a meeting of the Board, Goldman Sachs rendered to the Board its oral opinion, subsequently confirmed in its written opinion dated December 15, 2020, 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 in Goldman Sachs’ written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders.
The full text of the written opinion of Goldman Sachs, dated December 15, 2020, which sets forth the assumptions made, procedures followed, matters considered, qualifications and limitations on the review undertaken in connection with Goldman Sachs’ opinion, is attached to this proxy statement as Annex C. The summary of Goldman Sachs’ opinion contained in this proxy statement is qualified in its entirety by reference to the full text of Goldman Sachs’ written opinion. Goldman Sachs’ advisory services and opinion were provided for the information and assistance of the Board in connection with its consideration of the Acquisition and the opinion does not constitute a recommendation as to how any Company Shareholder should vote with respect to the Acquisition or any other matter.
Pursuant to an engagement letter between the Company and Goldman Sachs, the Company has agreed to pay Goldman Sachs for its services in connection with the Acquisition an aggregate fee that is estimated, based on the information available as of the date of announcement, at approximately $25 million, $5 million of which was payable upon announcement of the proposed acquisition and the remainder of which is contingent upon completion of the acquisition, plus a potential discretionary fee of $2.5 million.
For additional information, see the section entitled “The Acquisition — Opinion of Goldman Sachs & Co. LLC” beginning on page 64 and Annex C to this proxy statement.
Market Price and Dividend Data (see page 118)
The Shares are traded on The NASDAQ Stock Market LLC (which we refer to as “Nasdaq”) under the symbol “CATM.” On December 8, 2020, the day before HEC filed an amendment to its Schedule 13D with respect to the submission, together with funds managed by affiliates of AGM, of a non-binding proposal to the Board concerning the Acquisition of all of the outstanding Shares not owned by HEC and funds managed by affiliates of AGM, the closing price for the Shares was $25.87. On December 14, 2020, the last full trading day prior to the public announcement of the Acquisition, the closing price for the Shares was $35.67 per Share. On [•], 2021, the last full trading day prior to the date of this proxy statement, the closing price for the Shares was $[•] per Share.
Certain Effects of the Acquisition (see page 119)
Upon completion of the Acquisition, the Company will become a wholly-owned subsidiary of BidCo upon the terms set forth in the Acquisition Agreement.
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Following the completion of the Acquisition, the Shares will no longer be traded on Nasdaq or any other public market. In addition, the registration of the Shares under the Securities Exchange Act of 1934, as amended (which we refer to as the “Exchange Act”), will be terminated. As soon as reasonably practicable after the Effective Date, the Company will be re-registered as a private limited company under the relevant provisions of the Companies Act.
Consequences if the Acquisition is Not Completed (see page 79)
If the Court Scheme Proposal and the Articles Amendment Proposal are not both approved by the Company Shareholders or if the Acquisition is not completed for any other reason, Company Shareholders will not receive any cash consideration for their Shares. Instead, the Company will remain a public limited company and the Shares will continue to be listed and traded on Nasdaq.
In addition, if the Acquisition Agreement is terminated under specified circumstances, the Company is required to pay BidCo a termination fee of $32,600,000 (which we refer to as the “Company termination fee”). Additionally, the Company has agreed to pay BidCo a termination fee of $16,300,000 if BidCo terminates upon material breach by the Company of its representations and warranties or covenants under the Acquisition Agreement and prior to such termination an “acquisition proposal” (as defined herein) has been made and becomes publicly known. The Acquisition Agreement also provides that BidCo may be required to pay the Company a reverse termination fee of $93,800,000 (which we refer to as the “BidCo termination fee”), if the Acquisition Agreement is terminated under specified circumstances. For additional information, see the section entitled “The Acquisition Agreement — Expenses; Termination Fees,” beginning on page 111.
The Company and BidCo have also agreed that if either party fails to timely pay their respective termination fees in the event of a termination described above, and in order to obtain such payment, either party commences a suit that results in a final and non-appealable judgment against the other party, then the losing party will pay to the winning party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and the reasonable and documented out-of-pocket fees and expenses of any expert or consultant engaged by the Company) up to a maximum aggregate amount of $500,000 in connection with such suit, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at the prime rate as published in The Wall Street Journal, Eastern Edition in effect on the date of such payment.
Treatment of Options, Time-Based Restricted Stock Units and Performance-Based Restricted Stock Units (see page 72)
The Acquisition Agreement provides for the following treatment of Company stock options, time-based restricted stock units and performance-based restricted stock units:
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Immediately prior to the Effective Date, each then-outstanding option to purchase Shares (each, an “Option”) granted under any director or employee stock option or compensation plan or arrangement of the Company (collectively, the “Company Share Plans”) prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the excess, if any, of the Per Share Consideration over the applicable exercise price per Share of such Option and (ii) the number of Shares subject to such Option, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date. Each Option outstanding immediately prior to the Effective Date that was granted in calendar year 2021 (the “2021 Option”) will be cancelled and converted into the right to receive an amount in cash (the “Option Cash Out Award”) equal to the product of (i) the excess, if any, of the Per Share Consideration over the applicable exercise price per Share of such 2021 Option and (ii) the number of Shares subject to such 2021 Option, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Option would have otherwise vested and become exercisable in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date. Any Option which has a per Share exercise price that is greater than or equal to the Per Share Consideration shall be cancelled on the Effective Date for no consideration or payment.
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•
Immediately prior to the Effective Date, each then-outstanding award for restricted stock units with respect to Shares that vests solely based on the passage of time (each, a “Company RSU”) granted under any Company Share Plan prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such Company RSU award, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Internal Revenue Code). Each award of Company RSUs outstanding immediately prior to the Effective Date that was granted in calendar year 2021 (the “2021 Company RSU”) will be cancelled and converted into the right to receive an amount in cash (the “RSU Cash Out Award”) equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such award of 2021 Company RSUs, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Company RSU would have otherwise vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date.
•
Immediately prior to the Effective Date, each then-outstanding award for restricted stock units with respect to Shares that vests based on both performance and the passage of time (each, a “Company PSU”) granted under any Company Share Plan prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such Company PSU award (with such number of Shares based on the greater of the target level achievement and the actual level of achievement of any performance goals as determined by the Board immediately prior to the Effective Date based on pro-rated performance goals to account for any shortened performance period), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Code). Each award of Company PSUs outstanding immediately prior to the Effective Date that was granted in calendar year 2021 (the “2021 Company PSU”) will be cancelled and converted into the right to receive an amount in cash (the “PSU Cash Out Award”) equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such 2021 Company PSU (with such number of Shares based on the target level achievement), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Company PSU would have otherwise vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date (excluding any performance conditions).
Interests of Directors and Executive Officers in the Acquisition (see page 71)
In considering the recommendation of the Board that you vote “FOR” the proposal to approve the Acquisition, you should be aware that some of our directors and executive officers have interests that may be different from, or in addition to, the interests of the Company Shareholders generally. The Board was aware of these interests and considered them at the time it approved the Acquisition Agreement and made its recommendation to the Company Shareholders. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
Conditions to the Acquisition (see page 108)
The Company’s and BidCo’s respective obligations to complete the Acquisition are subject to the satisfaction (or mutual waiver at or prior to the date of the Court hearing by each of the Company and BidCo where permitted) of the following conditions:
•
(i) the Scheme has been approved by a majority in number representing not less than seventy-five percent (75%) in value of shareholders of the Company who are on the register of members of the Company (or the relevant class or classes thereof) at the Voting Record Time, present and voting
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(and who are entitled to vote), whether in person or by proxy, at the Court Meeting and at any separate class meeting which may be required (or any adjournment thereof); (ii) the resolutions required to implement the Scheme being duly passed by the requisite majority of the shareholders of the Company at the General Meeting (or any adjournment thereof); and (iii) the sanction of the Scheme by the Court (with or without modification (but subject to any modification being on terms acceptable to BidCo and the Company));
•
no law, injunction or other order (whether temporary, preliminary or permanent) will have been enacted, entered, promulgated or enforced by any governmental entity of competent jurisdiction which prohibits, restrains, enjoins or otherwise makes illegal the consummation of the Acquisition and will remain in effect; and
•
the waiting period (and any extension thereof) applicable to the consummation of the Acquisition under (i) the Hart-Scott-Rodino Antitrust Improvements Act of 1976 (which we refer to as the “HSR Act”); and (ii) the antitrust and foreign investment laws of Australia, Canada, the European Union and South Africa will have expired or been earlier terminated and any required approvals thereunder will have been obtained.
The obligations of BidCo to complete the Acquisition are also subject to the satisfaction or waiver by BidCo at or prior to the date of the Court Hearing of additional conditions, including:
•
subject to certain materiality qualifiers, the accuracy of each of the Company’s representations and warranties in the Acquisition Agreement;
•
the Company’s performance or compliance in all material respects with the obligations, agreements and covenants required to be performed or complied with by it under the Acquisition Agreement on or prior to the date of the Court Hearing; and
•
the absence of any “Material Adverse Effect” since December 15, 2020; and
•
BidCo’s receipt of a signed certificate by an executive officer of the Company certifying that the conditions set forth above have been satisfied.
The obligations of the Company to complete the Acquisition are also subject to the satisfaction or waiver by the Company at or prior to the date of the Court Hearing of additional conditions, including:
•
subject to certain materiality qualifiers, the accuracy of each of BidCo’s representations and warranties in the Acquisition Agreement;
•
BidCo’s performance or compliance in all material respects with the obligations, agreements and covenants, required to be performed by or complied with by it under the Acquisition Agreement on or prior to the date of the Court Hearing; and
•
the Company’s receipt of a signed certificate by an executive officer of BidCo stating that the conditions set forth above have been satisfied.
Antitrust Review Required for the Acquisition and Other Regulatory Filings (see page 85)
U.S. Antitrust
Under the HSR Act and the rules that have been promulgated thereunder by the U.S. Federal Trade Commission (which we refer to as the “FTC”), we cannot complete the Acquisition until we have given notification and furnished information to the FTC and the Department of Justice (which we refer to as the “DOJ”), and until the applicable waiting period has expired or has been terminated. The Acquisition is subject to the waiting period requirements and may not be completed until the expiration of a 30-day waiting period (which may be extended as described below) following the filing of the premerger notification and report forms with the DOJ and the FTC. On December 30, 2020, Cardtronics and BidCo each filed or caused to be filed a premerger notification and report form under the HSR Act with the DOJ and the FTC. At 11:59 p.m., Eastern Time, on January 29, 2021, the waiting period with respect to the premerger notification and report form under the HSR Act will expire.
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It is not out of the ordinary for the FTC and the DOJ to scrutinize the legality of transactions like the Acquisition under U.S. antitrust laws. At any time before or after the consummation of the Acquisition, notwithstanding the expiration or termination of the waiting period under the HSR Act, the FTC or DOJ could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the completion of the Acquisition, seeking divestiture of substantial assets of the parties or requiring the parties to license, or hold separate, assets or terminate existing relationships and contractual rights. At any time before or after the completion of the Acquisition, and notwithstanding the expiration or termination of the waiting period under the HSR Act, any U.S. state could take such action under its antitrust laws as it deems necessary or desirable in the public interest. Such action could include seeking to enjoin the completion of the Acquisition or seeking divestiture of substantial assets of the parties. Private parties may also seek to take legal action under the antitrust laws under certain circumstances.
EU Antitrust
BidCo and its affiliates and Cardtronics also conduct business in the European Union (which we refer to as the “EU”). Under the European Union Merger Regulation (which we refer to as the “EUMR”), the Acquisition may not be completed until the expiration of a 25 business day waiting period following the filing of a notification concerning the Acquisition with the European Commission (which we refer to as the “Commission”), unless the waiting period is earlier terminated. This waiting period can be extended by 10 business days in the event commitments or remedies are offered to the Commission in order to address the competitive concerns raised by the Commission to obtain approval for the Acquisition. The waiting period starts the first business day after the filing of the notification. Under the EUMR, the required waiting period will expire if the Commission has not decided to open a “Phase II” investigation within such 25-business day or 35-business day period. If a Phase II investigation is undertaken, the waiting period with respect to the Acquisition could be extended for an additional period of up to 90 business days (or 105 business days if commitments or remedies are offered to the Commission). The Commission frequently appraises transactions like the Acquisition to establish that they will not significantly impede effective competition in the common market (or a substantial part of it). The Commission could take action under the EUMR that it considers necessary or desirable to ensure competition in the EU is not distorted or impeded, including seeking (i) to require the parties to abandon the Acquisition, (ii) to require BidCo or Cardtronics to enter into structural remedies (and thus divest one or more business units or assets) referred to as “commitments”, or (iii) to require BidCo or Cardtronics to enter into behavioral commitments whereby BidCo or Cardtronics commit to take or refrain from taking certain actions to ensure undistorted competition in relevant markets.
Other Foreign Antitrust and Regulatory Filings
In addition, the obligation of the parties to the Acquisition Agreement to effect the Acquisition is subject to (i) approval under the foreign investment laws of Australia and (ii) approval or expiration or termination of any applicable waiting period under the antitrust laws of Canada and South Africa and obtainment of any required consents pursuant thereto (which we refer to, collectively, as the “Other Regulatory Authorities”). In connection with the foregoing, on [•], the Company and BidCo filed an application seeking a no objections notice from the Treasurer of the Commonwealth of Australia. Filings in Canada and South Africa are expected to be made in the coming weeks and, following the Effective Date, a filing pursuant to the Investment Canada Act will be required. Any of these Other Regulatory Authorities may seek to enjoin the consummation of the Acquisition or seek a divestiture of a substantial portion of the Company’s assets or seek other relief pursuant to applicable law.
The Company and BidCo have agreed to (i) make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transaction contemplated by the Acquisition Agreement as promptly as practicable (and in any event within ten business days) after the date of the Acquisition Agreement and to (ii) make or file, as promptly as practicable, with the appropriate governmental authority, all other filings, registrations and notifications required to be filed to consummate the Acquisition under the foreign investment laws of Australia and the antitrust laws of Canada, the European Union and South Africa. The Company and BidCo have also agreed to supply as promptly as practicable any additional information and documentary material that may be requested from a governmental authority in connection with filings made with such governmental authority. So as to permit closing to occur as promptly as
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practicable and in any event prior to the Termination Date, BidCo, BidCo’s subsidiaries, BidCo’s Affiliates, and the Company shall (x) propose, negotiate, commit to and effect, by consent decree, hold separate orders or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of BidCo, BidCo’s subsidiaries, BidCo’s Affiliates, or the Company or its subsidiaries or any interest therein and (y) otherwise take or commit to take actions that would limit BidCo’s, BidCo’s subsidiaries, BidCo’s Affiliates, or the Company’s or its subsidiaries’ freedom of action with respect to, or its or their ability to retain any assets, properties, products, rights, services or businesses of BidCo, BidCo’s subsidiaries, BidCo’s Affiliates, or the Company or its subsidiaries or any interest or interests therein, provided that any such action is conditioned upon (and shall not be completed prior to) the consummation of the Acquisition and the other transactions contemplated by the Acquisition Agreement. In addition, the Company and BidCo agree to use best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by the Acquisition Agreement.
Financing of the Acquisition (see page 80)
We anticipate that the total funds needed to complete the Acquisition, including the funds needed to pay Company Shareholders and holders of other equity-based interests the amounts due to them under the Acquisition Agreement, which would be approximately $2,595,000,000 based upon the number of Shares (and our other equity-based interests) outstanding as of December 13, 2020, will be funded through the debt and equity financing described in the following paragraphs and potentially also in small part in combination with the Company’s cash on hand.
Apollo Investment Fund IX, L.P., Apollo Overseas Partners (Delaware 892) IX, L.P., Apollo Overseas Partners (Delaware) IX, L.P., Apollo Overseas Partners IX, L.P. and Apollo Overseas Partners (Lux) IX, SCSP (which we collectively refer to as the “Equity Investors”) have delivered to BidCo an equity commitment letter, dated December 15, 2020, for an aggregate amount of $845,400,000.
BidCo has entered into a debt commitment letter, dated as of December 15, 2020 (which we refer to as the “debt commitment letter”), with certain financial institutions (which we collectively refer to as the “Commitment Parties”). Pursuant to and subject to the terms of the debt commitment letter, the Commitment Parties have committed to provide, severally but not jointly, the following: (i)(x) a senior secured term loan facility in an aggregate principal amount of $1,200 million (which we refer to as the “Term Facility”) and (y) a senior unsecured bridge facility in an aggregate principal amount of $450 million (which we refer to as the “Senior Unsecured Bridge Facility”), in each case of clauses (x) and (y), the proceeds of which are expected to be used to finance the Acquisition and related transactions and (ii) a senior secured revolving credit facility with an aggregate commitment of $300 million (which we refer to as the “Revolving Facility” and together with the Term Facility and the Senior Unsecured Bridge Facility, the “Credit Facilities”), the proceeds of which may be used for general corporate purposes. The borrower under the debt commitment letter will, at its option, either (i) issue senior unsecured notes in a Rule 144A or other private placement on or prior to the Effective Date yielding up to $450 million in aggregate gross cash proceeds (which we refer to as the “Senior Unsecured Notes”) or (ii) if any or all of the Senior Unsecured Notes are not issued on or prior to the Effective Date, borrow up to such unissued amount in the form of senior unsecured bridge loans under the Senior Unsecured Bridge Facility. The Credit Facilities and the Senior Unsecured Notes are collectively referred to herein as the “Debt Financing.”
The debt commitment letter terminates automatically on the earliest to occur of (a) the date that is five business days after the End Date (as defined in the Acquisition Agreement, and as it may be extended in accordance with the terms of the Acquisition Agreement as in effect on December 15, 2020), (b) the date the Acquisition Agreement is terminated (and such termination is valid and legally binding) without the consummation of the Acquisition having occurred and (c) the date of the consummation of the Acquisition (x) in the case of the Term Facility, without the use of the Term Facility or (y) in the case of the Senior Unsecured Bridge Facility, without the use of the Senior Unsecured Bridge Facility, unless, in each case of the foregoing clauses (a), (b) and (c), the Commitment Parties, in their discretion, agree to an extension.
The obligations of the Commitment Parties to provide financing under the debt commitment letter are subject to various conditions, including (i) the execution and delivery of definitive documentation
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consistent with the terms of the debt commitment letter, (ii) the substantially simultaneous or substantially concurrent consummation of the Acquisition on the terms described in the Acquisition Agreement (without giving effect to any amendment, waiver, consent or other modification to the Acquisition Agreement by BidCo that is materially adverse to the Commitment Parties in their capacities as such unless approved by the lead arrangers), (iii) the consummation of the equity financing prior to, or substantially simultaneously or concurrently with, the initial borrowings under the Debt Financing, (iv) since December 15, 2020, there must not have been, nor will there be, any Material Adverse Effect (as defined in the Acquisition Agreement), which condition is tested on the date of the Court Hearing, (v) delivery of certain audited, unaudited and pro forma financial statements, (vi) as a condition to the availability of the Senior Unsecured Bridge Facility, the borrower under the debt commitment letter having used commercially reasonable efforts to afford the investment banks engaged to privately place the Senior Unsecured Notes a marketing period of at least ten (10) business days (subject to certain blackout dates) following receipt of a customary preliminary prospectus or preliminary offering memorandum or preliminary private placement memorandum, in each case, which includes certain financial statements, (vii) as a condition to the availability of the Term Facility, the borrower under the debt commitment letter having used commercially reasonable efforts to afford the arrangers a marketing period of at least ten (10) business days (subject to certain blackout dates), (viii) payment of all applicable fees and reasonable and documented out-of-pocket expenses, (ix) the receipt of all documentation and other information about the borrower and guarantors required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations (including the PATRIOT Act), (x) the execution and delivery of guarantees by certain guarantors and the taking of certain actions necessary to create and perfect a security interest in specified items of collateral, (xi) the accuracy in all material respects of specified representations and warranties in the loan documents under which the debt financing will be provided and of certain representations and warranties in the Acquisition Agreement and (xii) delivery of certain customary closing documents.
The documentation governing the Debt Financing has not been finalized and, accordingly, the actual terms of the Debt Financing may differ from those described in this proxy statement.
As of the date of this proxy statement, the debt commitment letter remains in effect and no alternative financing arrangements or alternative financing plans have been made in the event the Debt Financing is not available.
The completion of the Acquisition is not conditioned upon BidCo’s receipt of the Debt Financing (or any alternative financing).
RBC Capital Markets, LLC, Barclays Bank PLC, Deutsche Bank Securities Inc. and Mizuho Bank, Ltd. will act as joint bookrunners and joint lead arrangers for the Credit Facilities. In accordance with the terms of the debt commitment letter, the Commitment Parties may invite other banks, financial institutions and institutional lenders to participate in the Debt Financing and to undertake a portion of the commitments to provide such Debt Financing.
Restriction on Solicitation of Acquisition Proposals (see page 97)
The Acquisition Agreement generally restricts the Company’s, its subsidiaries’ and the Company’s and its subsidiaries’ directors’, officers’ and employees’ ability to solicit, directly or indirectly, potential competing proposals from third parties, or to engage in discussions or negotiations with, or furnish information regarding the Company or any of its subsidiaries to, third parties regarding any potential competing proposal. Under certain circumstances, however, and in compliance with certain obligations contained in the Acquisition Agreement, the Company is permitted to furnish information with respect to the Company and its subsidiaries and participate in discussions or negotiations with third parties making a competing proposal if the Board determines in good faith, after consultation with our outside legal counsel and financial advisors, that the competing proposal constitutes or would reasonably be expected to result in a superior proposal and that the failure to furnish information to or participate in discussions or negotiations with respect to such competing proposal would violate the directors’ fiduciary duties under the laws of England and Wales.
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Termination of the Acquisition Agreement (see page 110)
The Acquisition Agreement may be terminated prior to the Effective Date by the mutual written consent of BidCo and the Company. In addition, the Acquisition Agreement may be terminated prior to the Effective Date by either BidCo or the Company if:
•
any court or other governmental entity of competent jurisdiction has issued an order, decree, ruling, judgment or injunction, or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Acquisition and such order, decree, ruling, judgment, injunction or other action is or has become final and non-appealable;
•
the Acquisition has not been consummated by September 14, 2021, subject to certain extensions in respect of the marketing period for the Debt Financing (which we refer to as the “Marketing Period”) and the Court Hearing (which we refer to as the “End Date”); or
•
the Company Shareholders do not approve the Acquisition at the General Meeting and the Court Meeting or at any adjournment or postponement thereof, in each case, at which a vote on the approval of the Acquisition was taken.
The right to terminate the Acquisition Agreement pursuant to the above circumstances will not be available to any party that has breached in any material respect its obligations under the Acquisition Agreement in any manner that has proximately caused or resulted in the failure of the Acquisition to be consummated.
The Company may also terminate the Acquisition Agreement and abandon the Acquisition if:
•
there has been a material breach of or material failure to perform any representation, warranty, covenant or agreement on the part of BidCo contained in the Acquisition Agreement, or any such representation or warranty will be untrue in any material respect, which breach, failure to perform or failure to be true, individually or in the aggregate, would result in a condition described above not being satisfied and such breach or failure is not cured prior to the earlier of (A) thirty (30) business days after written notice thereof is given by the Company to BidCo or (B) the End Date; provided, that (x) the Company has first given BidCo written notice at least thirty (30) business days prior to such termination (or promptly, if such written notice is given within thirty (30) business days prior to the End Date), stating the Company’s intention to terminate the Acquisition Agreement as a result thereof and the basis for such termination and (y) the Company will not have the right to terminate as a result if the Company is then in material breach of any of its representations, warranties, covenants or agreements contained in the Acquisition Agreement;
•
at any time prior to the time the “Company Requisite Vote” (as defined below) is obtained, in order to enter into an alternative acquisition agreement with respect to a superior proposal in compliance with the terms and conditions of the Acquisition Agreement; provided, however, that the Company has concurrently with such termination paid or caused to be paid to BidCo the “Company termination fee” (as defined below); or
•
(i) the mutual conditions and BidCo’s conditions (subject to certain exceptions) have been satisfied or waived in accordance with the terms of the Acquisition Agreement, (ii) the Marketing Period has ended and the Company has irrevocably and unconditionally confirmed by written notice to BidCo after the end of the Marketing Period that (x) all of the Company’s conditions have been satisfied (subject to certain exceptions) or that it will irrevocably and unconditionally waive any unsatisfied conditions of the Company, (y) it is prepared, willing and able to consummate the Acquisition and (z) it intends to terminate the Acquisition Agreement, (iii) BidCo fails to consummate the Acquisition within three (3) business days after the delivery of such notice (and the Company has not revoked, withdrawn, modified or conditioned such notice) and (iv) at all times during such three (3) business day period, the Company stood ready, willing and able to consummate the Acquisition and the other transactions contemplated by the Acquisition Agreement.
BidCo may also terminate the Acquisition Agreement and abandon the Acquisition at any time prior to the Effective Date if:
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•
there has been a material breach of or material failure to perform any representation, warranty, covenant or agreement will the part of the Company contained in the Acquisition Agreement, or any such representation or warranty shall be untrue in any material respect, which breach, failure to perform or failure to be true, individually or in the aggregate, would result in a condition described above not being satisfied and such breach or failure is not cured prior to the earlier of (A) thirty (30) business days after written notice thereof is given by BidCo to the Company or (B) the End Date; provided, that (x) BidCo has given the Company written notice at least thirty (30) business days prior to such termination (or promptly, if such written notice is given within thirty (30) business days prior to the End Date), stating BidCo’s intention to terminate the Acquisition Agreement and the basis for such termination and (y) BidCo will not have the right to terminate if BidCo is then in material breach of any of its representations, warranties, covenants or agreements contained in the Acquisition Agreement; or
•
the Board has made, prior to obtaining the Company Requisite Vote, a change of recommendation.
Termination Fees (see page 111)
Company termination fee: If the Acquisition Agreement is terminated under specified circumstances, the Company is required to pay BidCo a termination fee of $32,600,000 (which we refer to as the “Company termination fee”). Additionally, the Company has also agreed to pay BidCo a termination fee of $16,300,000 if BidCo terminates upon an uncured material breach by the Company of its representations and warranties or covenants under the Acquisition Agreement and prior to such termination an “acquisition proposal” (as defined herein) has been made and becomes publicly known.
BidCo termination fee: The Acquisition Agreement also provides that BidCo may be required to pay the Company a reverse termination fee of $93,800,000 (which we refer to as the “BidCo termination fee”), if the Acquisition Agreement is terminated under specified circumstances. The Company and BidCo have also agreed that if either party fails to timely pay their respective termination fees in the event of a termination described above, and in order to obtain such payment, either party commences a suit that results in a final and non-appealable judgment against the other party, then the losing party will pay to the winning party its reasonable and documented out-of-pocket costs and expenses (including reasonable and documented out-of-pocket attorneys’ fees and the reasonable and documented out-of-pocket fees and expenses of any expert or consultant engaged by the Company) up to a maximum aggregate amount of $500,000 in connection with such suit, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at the prime rate as published in The Wall Street Journal, Eastern Edition in effect on the date of such payment. For additional information, see the section entitled “The Acquisition Agreement — Expenses; Termination Fees,” beginning on page 111.
No Dissenters’ or Rights of Objecting Shareholders (see page 117)
The Company Shareholders are not entitled to appraisal or dissenters’ rights in connection with the Acquisition.
When the Court’s sanction is sought for the Scheme, the Court will consider matters, including whether the Scheme has been implemented in accordance with the Companies Act, whether the Company Shareholders were fairly represented at the Court Meeting, whether the majority of the Company Shareholders are acting bona fide and not coercing the minority and whether the Scheme is one that a reasonable shareholder would approve. Company Shareholders subject to the Scheme (which we refer to as the “Scheme Shareholders”) are entitled to attend the Court hearing (which we refer to as the “Court Hearing”) and make submissions to oppose the Scheme on the basis that the aforementioned requirements have not been satisfied. However, if and when the Court sanctions the Scheme and the Court order is delivered to the Registrar of Companies, all Scheme Shareholders will be bound by the terms of the Scheme.
Material UK Income Tax Consequences of the Acquisition (see page 81)
For a UK Shareholder (as defined under “The Acquisition — Material UK Income Tax Consequences of the Acquisition” beginning on page 81), the receipt of cash in exchange for Shares pursuant to the Acquisition generally will be treated as a disposal for the purposes of UK taxation of chargeable gains. A
14
disposal of ordinary shares by a UK Shareholder may, depending on the UK Shareholder’s circumstances and subject to any available exemptions and reliefs, give rise to a chargeable gain or an allowable loss for the purposes of UK taxation of capital gains. A non-UK Shareholder (as defined under “The Acquisition — Material UK Income Tax Consequences of the Acquisition” beginning on page 81) generally will not be subject to UK capital gains tax or corporation tax with respect to the exchange of Shares for cash in the Acquisition unless such non-UK Shareholder has certain connections to the United Kingdom (as described in “The Acquisition — Material UK Income Tax Consequences of the Acquisition” beginning on page 81). Shareholders should refer to the discussion in the section entitled “The Acquisition — Material UK Income Tax Consequences of the Acquisition” beginning on page 81 and consult their own tax advisors for complete analysis of the UK and/or foreign tax consequences of the Acquisition that are applicable to them in light of their particular circumstances.
Material U.S. Federal Income Tax Consequences of the Acquisition (see page 82)
The receipt of cash in exchange for Shares pursuant to the Acquisition generally will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. holder who receives cash in exchange for Shares in the Acquisition will recognize gain or loss equal to the difference, if any, between the cash received and the U.S. holder’s adjusted tax basis in the Shares converted into the right to receive cash in the Acquisition. Gain or loss will be determined separately for each block of Shares (that is, Shares acquired for the same cost in a single transaction). A non-U.S. holder generally will not be subject to U.S. federal income tax with respect to the exchange of Shares for cash in the Acquisition unless such non-U.S. holder has certain connections to the United States. Because particular circumstances may differ, Cardtronics recommends that you consult your own tax advisor for complete analysis of the U.S. federal, state, local and/or foreign tax consequences of the Acquisition that are applicable to you. A more complete description of the U.S. federal income tax consequences of the Acquisition is provided under “The Acquisition — Material U.S. Federal Income Tax Consequences of the Acquisition” beginning on page 82.
Additional Information (see page 125)
You can find more information about Cardtronics in the periodic reports and other information we file with the U.S. Securities and Exchange Commission (which we refer to as 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.
Expected Timetable of Principal Events
All dates and times are based on the Company’s current expectations and are subject to change. Terms used but not defined in this “Expected Timetable of Principal Events” shall have the meanings given to them in the Scheme.
|
Event
|
| |
Time and/or date(1)
|
|
| Latest time for receipt of Court Meeting Proxy Cards for Shareholders of Record (Beneficial Holders should follow the deadlines provided by their broker, bank, trust or other nominee) | | |
[•] on [•], 2021(2)
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|
| Latest time for receipt of General Meeting Proxy Cards for Shareholders of Record (Beneficial Holders should follow the deadlines provided by their broker, bank, trust or other nominee) | | |
[•] on [•], 2021
|
|
| Voting Record Time for Court Meeting and General Meeting | | |
[•], 2021(3)
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|
| Court Meeting | | |
[•] on [•], 2021
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|
| General Meeting | | |
[•] on [•], 2021(4)
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|
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|
Event
|
| |
Time and/or date(1)
|
|
| Court hearing to sanction the Scheme | | |
A date expected to be in March or April, 2021, subject to the satisfaction or waiver of relevant conditions to the Acquisition (“D”)(5)
|
|
| Scheme Record Time and Last Day of Trading | | |
6.00 p.m. (London time) on D+1 Business Day
|
|
| Scheme Effective Time | | |
D+2 Business Days
|
|
| Delisting by the Company of Shares from Nasdaq | | |
D+[•] Business Days
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|
| Settlement of the Consideration | | |
As soon as possible and within 14 days following the Scheme Effective Time
|
|
| Long Stop Termination Date | | |
September 14, 2021(6)
|
|
(1)
The dates and times given are indicative only and are based on current expectations and are subject to change (including as a result of changes to the regulatory timetable. The parties currently expect the Acquisition to close in the first half of 2021. However, it is possible that factors could result in the Acquisition being completed at another time or not at all. The actual dates will depend, among other things, on the satisfaction or waiver of the conditions in the Acquisition Agreement.
References to times are to London, United Kingdom time unless otherwise stated. If any of the times and/or dates above change, the revised times and/or dates will be notified to Cardtronics shareholders.
(2)
It is requested that Court Meeting Proxy Card be lodged no later than [time] on [date] or, in the case of an adjourned meeting, at [•] [a.m.]/[p.m.] (London time) on the date which is ten days before the date fixed for reconvening the adjourned Court Meeting. [Court Meeting Proxy Cards not so lodged may be completed and emailed to [email address] at any time before the start of the Court Meeting.]
(3)
If either the Court Meeting or the General Meeting is adjourned, the Voting Record Time for the relevant adjourned meeting will be at [•] [a.m.]/[p.m.] (London time) on the date which is ten days before the date fixed for reconvening the adjourned meeting.
(4)
To commence at [time] or as soon thereafter as the Court Meeting concludes or is adjourned.
(5)
In accordance with the terms of the Acquisition Agreement, the parties agree to submit a request to the Court to schedule the Court hearing date for the date that is twelve to fifteen business days after the conditions to the Acquisition have been satisfied (or, to the extent permitted, waived). Pursuant to the terms of the Acquisition Agreement, the Court hearing date may be rescheduled in certain circumstances.
(6)
This is the latest date by which the Scheme may become effective. Pursuant to the terms of the Acquisition Agreement, the Long Stop Termination Date may be extended in certain circumstances.
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QUESTIONS AND ANSWERS ABOUT THE ACQUISITION AND THE SHAREHOLDER MEETINGS
The following questions and answers are intended to briefly address some commonly asked questions regarding the Acquisition, the Court Meeting and the General Meeting. These questions and answers do not address all questions that may be important to you as a Company Shareholder. Please refer to the more detailed information contained elsewhere in this proxy statement, the Annexes to this proxy statement and the documents referred to in this proxy statement.
Q:
Why am I receiving this proxy statement?
A:
On December 15, 2020, the Company entered into the Acquisition Agreement with BidCo. You are receiving this proxy statement in connection with the solicitation of proxies by the Board in favor of the proposal to approve the Acquisition.
Q:
As a shareholder, what will I receive in the Acquisition?
A:
If the Acquisition is completed, you will be entitled to receive $35.00 in cash, without interest and subject to deduction for any withholding taxes, for each Share you own as of immediately prior to the Effective Date. For further information, see the section entitled “The Acquisition Agreement — Acquisition Consideration,” beginning on page 89.
Q:
What are the material U.S. federal income tax consequences of the Acquisition?
A:
The receipt of cash in exchange for Shares pursuant to the Acquisition generally will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. holder who receives cash in exchange for Shares in the Acquisition will recognize gain or loss equal to the difference, if any, between the cash received and the U.S. holder’s adjusted tax basis in the Shares converted into the right to receive cash in the Acquisition. Gain or loss will be determined separately for each block of Shares (that is, Shares acquired for the same cost in a single transaction). A non-U.S. holder generally will not be subject to U.S. federal income tax with respect to the exchange of Shares for cash in the Acquisition unless such non-U.S. holder has certain connections to the United States. Because particular circumstances may differ, Cardtronics recommends that you consult your own tax advisor for complete analysis of the U.S. federal, state, local and/or foreign tax consequences of the Acquisition that are applicable to you. A more complete description of the U.S. federal income tax consequences of the Acquisition is provided under “The Acquisition — Material U.S. Federal Income Tax Consequences of the Acquisition” beginning on page 82.
Q:
What are the material UK income tax consequences of the Acquisition?
A:
If you are a UK Shareholder (as defined under “The Acquisition — Material UK Tax Consequences of the Acquisition” beginning on page 81) the exchange of Shares for cash pursuant to the Acquisition will generally be treated as a disposal for the purposes of UK taxation of chargeable gains. A disposal of ordinary shares by a UK Shareholder may, depending on the UK Shareholder’s circumstances and subject to any available exemptions and reliefs, give rise to a chargeable gain or an allowable loss for the purposes of UK taxation of capital gains. A non-UK Shareholder (as defined under “The Acquisition — Material UK Income tax Consequences of the Acquisition” beginning on page 81) generally will not be subject to UK capital gains tax or corporation tax with respect to the exchange of Shares for cash in the Acquisition unless such non-UK Shareholder has certain connections to the United Kingdom (as described in “The Acquisition — Material UK Income tax Consequences of the Acquisition” beginning on page 81).
Shareholders should refer to the discussion in the section entitled “The Acquisition — Material UK Income tax Consequences of the Acquisition” beginning on page 81 and consult their own tax advisors for a complete analysis of the UK and/or foreign tax consequences of the Acquisition that are applicable to them in light of their particular circumstances.
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Q:
What will happen to the Company’s outstanding equity compensation awards in the Acquisition?
A:
For information regarding the treatment of outstanding Company equity awards, see the section entitled “The Acquisition Agreement — Treatment of Options, Company RSUs and Company Performance-Based RSUs” beginning on page 89.
Q:
Why are there two shareholder meetings?
A:
The Acquisition will be implemented by means of a Court-sanctioned scheme of arrangement between the Company and its shareholders who are Scheme Shareholders on the register of members of the Company at the Scheme Record Time under Part 26 of the Companies Act. The procedure requires approval of the Scheme by Company Shareholders at a meeting that is convened by the Court, which we refer to as the Court Meeting. The Company Shareholders will vote on the Court Scheme Proposal at the Court Meeting as described in “Court Scheme Proposal” beginning on page 34.
The Acquisition also requires approval of the Articles Amendment Proposal which is a proposal to amend the Company’s articles of association to allow the Board to carry the Scheme into effect. This proposal will not be presented at the Court Meeting. Therefore, the Company is also holding a General Meeting at which Company Shareholders will vote on the Articles Amendment Proposal and on the Advisory Transaction-Related Compensation Proposal.
Q:
What are Company Shareholders being asked to consider and approve?
A:
Company Shareholders are being asked to consider and approve the following matters:
1. The Court Scheme Proposal: To approve the Scheme at the Court Meeting;
2. Articles Amendment Proposal: To give the Board the authority to take all necessary action to carry the Scheme into effect and to amend the Company’s articles of association as described in “Articles Amendment Proposal” on page 36 at the General Meeting; and
3. Advisory Transaction-Related Compensation Proposal: To approve, in accordance with Section 14A of the Exchange Act on an advisory, non-binding 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 Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable.
As more particularly described in “The Court Meeting and the General Meeting” and “Court Scheme Proposal” on pages 31 and 34, respectively, the Acquisition is to be implemented by means of a Court-sanctioned scheme of arrangement between the Company and the Company Shareholders who are Scheme Shareholders on the register of members of the Company at the Scheme Record Time under Part 26 of the Companies Act. The procedure requires approval by the Company Shareholders at the Court Meeting and the sanction of the Scheme by the Court.
Court Meeting: The purpose of the Scheme is to provide for BidCo to acquire all of the issued and to be issued Shares. This is to be achieved by the automatic transfer of all of the outstanding Scheme Shares at the Scheme Record Time to BidCo (or its affiliates or its nominees), including any issuer of depositary receipts falling within Section 67(6) and Section 93(3) of the United Kingdom Finance Act 1986 (a “DR Nominee”), in consideration for which BidCo will pay the Per Share Consideration on the basis set out in the Scheme. Before the Court’s sanction can be sought for the Scheme, the Court Scheme Proposal must be approved by the Company Shareholders at the Court Meeting. The resolution must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Shares at the Voting Record Time, in each case, present and voting (and entitled to vote), either in person or by proxy. The approval of the Court Scheme Proposal is a condition to the consummation of the Acquisition, so if the Court Scheme Proposal is not approved, the Acquisition cannot be completed.
General Meeting: The Company Shareholders also are being asked to consider and approve the Articles Amendment Proposal and the Advisory Transaction-Related Compensation Proposal at the General Meeting. The Articles Amendment Proposal will be proposed as a special resolution, which
18
means, provided that a quorum is present, such proposal will be approved if at least 75% of the votes cast on the Articles Amendment Proposal are cast in favor thereof. The Articles Amendment Proposal will authorize the Board to implement the Scheme and to deal with certain ancillary matters, including necessary amendments to the Company’s articles of association. Approval of the Articles Amendment Proposal is required for consummation of the Acquisition. The approval of the Articles Amendment Proposal is a condition to the consummation of the Acquisition, so if the Articles Amendment Proposal is not approved, the Acquisition cannot be completed.
The Advisory Transaction-Related Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast on the Advisory Transaction-Related Compensation Proposal are in favor thereof. In addition, as the proposal is non-binding, the result of the vote will not require the Board to take any action. Completion of the Acquisition is not conditioned on approval of the Advisory Transaction-Related Compensation Proposal. Because the vote on this compensation proposal is advisory in nature only, it will not be binding on the Board. Accordingly, if the Court Scheme Proposal and the Articles Amendment Proposal are approved and the Acquisition is completed, the compensation may become payable, subject only to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.
Q:
Why am I receiving two proxy cards or voting instructions for two meetings?
A:
As described above, the Company Shareholders are being asked to consider and approve resolutions at both the Court Meeting and the General Meeting. Each copy of this document mailed to Shareholders of Record is accompanied by two proxy cards with instructions for voting. The proxy card labeled “Court Meeting Proxy Card” corresponds to the Court Meeting, and the proxy card labeled “General Meeting Proxy Card” corresponds to the General Meeting.
Beneficial Holders will receive voting instructions from their broker, bank, trust or other nominee with instructions on how to vote for each meeting. Beneficial Holders will only receive one voting instruction form, but this form will cover how to vote for both meetings.
Your vote is very important. It is important that, for the Court Meeting in particular, as many votes as possible are cast, so that the Court may be satisfied that there is a fair and reasonable representation of the opinion of the holders of the Scheme Shares at the Court Meeting. You are encouraged to submit a proxy card or voting instructions for BOTH the Court Meeting and the General Meeting as soon as possible.
If you have not received two proxy cards or a voting instruction form that covers how to vote for both meetings, please contact Georgeson LLC at 1290 Avenue of the Americas, 9th Floor, New York, New York 10104, Shareholders, Banks and Brokers Call Toll Free: 888-666-2594. If your Shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee.
Q:
How does the Board recommend that I vote on the proposals?
A:
The Board has determined that the terms and provisions of the Acquisition Agreement and the Scheme and the actions required and contemplated thereby, including the Acquisition, would promote the success of the Company to the benefit of the Company Shareholders as a whole and, accordingly, recommends that the Company Shareholders vote:
•
“FOR” the Court Scheme Proposal;
•
“FOR” the Articles Amendment Proposal; and
•
“FOR” the Advisory Transaction-Related Compensation Proposal.
For a more complete description of the recommendation of the Board with respect to these proposals, see “The Acquisition — Recommendation of the Board” and “The Acquisition — Reasons for Recommending the Approval of the Acquisition; Fairness of the Acquisition” each beginning on page 50. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
19
Q:
Do I need to attend the Court Meeting and the General Meeting?
A:
No. In addition, due to the COVID-19 Restrictions, it is not possible for you to attend either the Court Meeting or the General Meeting in order to vote your Shares. If you are a shareholder of record as of the Voting Record Time, you may vote by mail, by telephone or through the internet, as described in more detail below. If you are a “street name” holder of Shares, you must follow the voting instructions provided to you by your bank, broker, trust or other nominee for your Shares to be voted at the Court Meeting or the General Meeting, as described in more detail below. Please refer to page 32 of this document for attendance protocols in light of the COVID-19 Restrictions.
Q:
When and where are the Court Meeting and the General Meeting?
A:
The Court Meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] (London time) and the General Meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] (London time) (or as soon thereafter as the Court Meeting shall have concluded or been adjourned).
Q:
Who can receive notice of, attend and vote at the Court Meeting and General Meeting?
A:
Each Shareholder of Record or Beneficial Holder as of the Voting Record Time will receive notice of the Court Meeting and the General Meeting.
Only Shareholders of Record at the Voting Record Time will be entitled to attend and vote on the resolutions to be put to the Company Shareholders at the Court Meeting and the General Meeting. Each Beneficial Holder as of the Voting Record Time will be entitled to direct his or her broker, bank, trust or other nominee how to vote such Shares on the resolutions to be put to the Company Shareholders at the Court Meeting and the General Meeting. At the Voting Record Time, there were [•] Shares outstanding and entitled to vote at each of the Court Meeting and the General Meeting. However, due to the COVID-19 Restrictions, Shareholders of Record will not be permitted to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline. Please refer to page 32 of this document for attendance protocols in light of the COVID-19 Restrictions. While HEC is the holder of Shares, it will not vote at the Court Meeting. Instead, HEC will provide an undertaking to the Court to be bound by the Scheme in respect of its Shares that are subject to the Scheme and that are not acquired pursuant to the Contribution Agreement, in which it will also confirm to the Court that it did not vote at the Court Meeting.
All communications concerning Shareholder of Record accounts, including address changes, name changes, share transfer requirements and similar issues, can be handled by contacting Computershare Trust Company N.A., in its capacity as transfer agent, at (866) 595-9768 (toll free), (781) 575-2157 (toll), or in writing at 462 South 4th Street, Suite 1600, Louisville, KY 40202.
Q:
If my Shares are held in “street name” by my broker, bank, trust or other nominee, will my broker, bank, trust or other nominee vote my Shares for me?
A:
If your Shares are registered in the name of Cede & Co. (as nominee for DTC) or are held in “street name” through a broker, bank, trust or other nominee as a custodian, you are referred to in this proxy statement as a “Beneficial Holder.” Only Beneficial Holders as of the Voting Record Time may direct their broker, bank, trust or other nominee how to vote at the General Meeting and the Court Meeting (such broker, bank, trust or other nominee having been granted an omnibus proxy by the Shareholder of Record). Please follow the voting instructions provided by your broker, bank, trust or other nominee. Please note that you may not vote Shares held as a Beneficial Holder by returning a proxy card or voting instructions directly to the Company. You may only vote Shares held as a Beneficial Holder in person at the General Meeting or the Court Meeting if you obtain a “legal proxy” from your broker, bank, trust or other nominee.
Unless a Beneficial Holder instructs his or her broker, bank, trust or other nominee how to vote his or her Shares, Shares held by such Beneficial Holder will NOT be voted on any of the proposals presented at the General Meeting or the Court Meeting.
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Q:
What are the effects of abstentions and broker non-votes at the meetings?
A:
An abstention occurs when a Company Shareholder abstains from voting on one or more of the proposals. Broker non-votes occur when a broker, bank, trust or other nominee returns a proxy but does not have authority to vote on a particular proposal. Brokers, banks, trusts and other nominees will not have discretionary authority to vote on any of the proposals at the Court Meeting or the General Meeting, so they will only be able to vote Shares for which they have received voting instructions from the Beneficial Holders. If you are a Beneficial Holder, you should therefore provide your broker, bank, trust or other nominee with instructions as to how to vote your Shares for each proposal.
In connection with the Court Meeting, abstentions and broker non-votes will not be considered votes cast and will, therefore, not have any effect on the outcome of the vote at the Court Meeting.
In connection with the General Meeting, abstentions and broker non-votes will be considered in determining the presence of a quorum but will not be considered as votes cast. Abstentions and broker non-votes will have no effect on the outcome of the Articles Amendment Proposal or the Advisory Transaction-Related Compensation Proposal.
Q:
What do I need to do now?
A:
We urge you to read this proxy statement carefully, including its annexes and the documents referred to as incorporated by reference in this proxy statement, as well as the Schedule 13E-3, including the exhibits thereto, filed with the SEC, and to consider how the Acquisition affects you. See “Where You Can Find Additional Information.”
After you have carefully read this proxy statement and the attached annexes, please respond by completing, signing and dating the relevant proxy cards or voting instruction form, as applicable, and returning them in the enclosed postage-paid envelope or by submitting your proxy or voting instructions by appointing the chair of each of the Court Meeting and the General Meeting as your proxy by telephone or through the Internet as soon as possible so that your Shares will be represented and voted at the Court Meeting and General Meeting.
If you are a Shareholder of Record, please sign BOTH of the proxy cards exactly as your name appears on such cards. If your Shares are owned jointly, each joint owner should sign the relevant proxy cards. In the case of joint holders of Shares who are Shareholders of Record, the vote of the senior holder who tenders a vote, whether in person or by proxy, will be accepted to the exclusion of the vote(s) of the other joint holder(s). For this purpose, seniority will be determined by the order in which the names of the holders stand in the Company’s register of members. If a Shareholder of Record is a corporation, limited liability company, partnership or other entity, the relevant proxy cards should be signed in the full corporate, limited liability company, partnership or other entity name by a duly authorized person. If the relevant proxy cards are signed pursuant to a power of attorney or by an executor, administrator, trustee or guardian, please state the signatory’s full title and provide a certificate or other proof of appointment.
If you are a Beneficial Holder, please refer to your voting instructions or the information forwarded by your broker, bank, trust or other nominee to see which voting options are available to you.
The Internet and telephone proxy submission procedures are designed to verify your holdings and to allow you to confirm that your instructions have been properly recorded.
If you are a Shareholder of Record at the Voting Record Time, neither the submission of a proxy or voting instructions, nor the method by which you submit a proxy or voting instructions, will in any way limit your right to vote at the Court Meeting and General Meeting if you later decide to attend the meeting in person, however, due to the COVID-19 Restrictions, a Shareholder of Record will not be granted access to the Court Meeting or the General Meeting in person. If you are a Beneficial Holder as of the Voting Record Time, you must obtain a legal proxy, executed in your favor, from the Shareholder of Record through which your shares are held, to be able to vote at the Court Meeting and General Meeting.
21
Q:
How will my Shares be voted if I complete my proxy or voting instructions?
A:
All Shares entitled to vote and represented by properly completed proxies received prior to the Court Meeting and General Meeting, and not revoked, will be voted at the Court Meeting and General Meeting as instructed on the proxies or voting instructions.
If you are a Shareholder of Record and properly complete, sign and return your proxy cards, but do not indicate how your Shares should be voted on a matter, the Shares represented by your proxy will be voted as the Board recommends and, therefore:
•
“FOR” the Court Scheme Proposal;
•
“FOR” the Articles Amendment Proposal; and
•
“FOR” the Advisory Transaction-Related Compensation Proposal.
In light of the COVID-19 Restrictions, proxies (other than the chair of each of the Court Meeting and General Meeting) who do seek to attend will not be granted access to the Court Meeting or General Meeting in person. Accordingly, Shareholders of Record must appoint the chair of each of the Court Meeting or General Meeting as their proxy before the relevant deadline if they wish for their shares to be voted.
Broker non-votes occur when shares held by a bank, broker, trust or other nominee are represented at the meeting, but with respect to which such broker or nominee is not instructed to vote on a particular resolution and does not have discretionary authority to vote on that resolution. If you are a Beneficial Holder and you do not submit voting instructions to your broker, bank, trust or other nominee, your broker, bank, trust or other nominee may generally vote your shares in its discretion only on routine matters. Because each of the resolutions being considered at the Court Meeting and the General Meeting are considered non-routine, your broker, bank trust or nominee will not have the discretion to vote your shares unless you provide voting instructions. Please refer to page 32 of this proxy statement for details on attendance protocols in light of the COVID-19 Restrictions.
Q:
Can I revoke my proxy or voting instructions or change my vote after I have delivered my proxy or voting instructions?
A:
Yes. If you are a Shareholder of Record, you can do this as follows:
•
by sending a written notice via e-mail to [•] in time to be received before the deadline for the receipt of proxy cards for such meeting, stating that you would like to revoke your proxy; or
•
by completing, signing and dating another proxy card and returning it by mail in time to be received before the deadline for the receipt of proxy cards for the Court Meeting and General Meeting or by submitting a later dated proxy via the Internet or telephone, in which case your later-submitted proxy will be recorded and your earlier proxy revoked.
Please note that due to the COVID-19 Restrictions, Shareholders of Record will not be able to attend the Court Meeting or the General Meeting in person.
If you are a Beneficial Holder, you should contact your broker, bank, trust or other nominee for instructions on how to do so.
Q:
What is householding and how does it affect me?
A:
The SEC permits companies to send a single set of certain disclosure documents to any household at which two or more shareholders reside, unless contrary instructions have been received, but only if the company provides advance notice and follows certain procedures. In such cases, each shareholder continues to receive a separate notice of the meeting and proxy card. This householding process reduces the volume of duplicate information and reduces printing and mailing expenses. We have not instituted householding for shareholders of record; however, certain brokerage firms may have instituted householding for Beneficial Holders of Shares held through brokerage firms. If your family has multiple accounts holding Shares, you may have already received householding notification from your broker.
22
Please contact your broker directly if you have any questions or require additional copies of this proxy statement. The broker will arrange for delivery of a separate copy of this proxy statement promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies.
Q:
May I exercise dissenters’ rights or rights of appraisal in connection with the Acquisition?
A:
No. You are not entitled to dissenting shareholders’ appraisal rights, rights of objecting shareholders or other similar rights in connection with the Acquisition or any of the transactions contemplated by the Acquisition Agreement. For more information, see the section entitled “No Dissenters’ Rights or Rights of Objecting Shareholders” beginning on page 117.
Q:
When is the Acquisition expected to be completed?
A:
We and BidCo are working toward completing the Acquisition as quickly as possible. We currently anticipate that the Acquisition will be completed during the first half of calendar year 2021, but we cannot be certain when or if the conditions to the Acquisition will be satisfied or, to the extent permitted, waived. The Acquisition cannot be completed until the conditions to effect the Scheme are satisfied (or, to the extent permitted, waived), including the approval of the Acquisition by Company Shareholders. For additional information, see the section entitled “The Acquisition Agreement — Conditions to the Acquisition,” beginning on page 108.
Q:
What happens if the Acquisition is not completed?
A:
If the Court Scheme Proposal and the Articles Amendment Proposal are not both approved by the Company Shareholders or if the Acquisition is not completed for any other reason, Company Shareholders will not receive any cash consideration for their Shares. Instead, Cardtronics will remain an independent public limited company and the Shares will continue to be listed and traded on Nasdaq. Under the Acquisition Agreement, the Company or BidCo may be required to pay the other party a termination fee if the Acquisition Agreement is terminated under certain circumstances. See “The Acquisition Agreement — Expenses; Termination Fees” beginning on page 111.
Q:
Where can I find more information about the Company?
A:
The Company files periodic reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov. For a more detailed description of the information available, see the section entitled “Where You Can Find More Information,” beginning on page 125.
Q:
Who can help answer my questions?
A:
For additional questions about the Acquisition, assistance in submitting proxies or voting Shares, or additional copies of the proxy statement or the enclosed proxy card, please contact our proxy solicitor:
Georgeson LLC
1290 Avenue of the Americas, 9th Floor
New York, New York 10104
Shareholders, Banks and Brokers Call Toll Free: 888-666-2594
1290 Avenue of the Americas, 9th Floor
New York, New York 10104
Shareholders, Banks and Brokers Call Toll Free: 888-666-2594
If your Shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee for additional information.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Certain information is this proxy statement constitutes forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, as amended and are intended to be covered by the safe harbor provisions thereof. The forward-looking statements relate to future events and are based on management’s current expectations and beliefs relating to anticipated results of operations, business strategies, the anticipated benefits of the proposed transaction, the anticipated impact of the proposed transaction on the Company’s business and future financial and operating results, the expected timing of the proposed transaction, the anticipated effective date for the proposed transaction and other aspects of the Company’s operations or operating results. These forward-looking statements generally can be identified by phrases such as “will,” “expect,” “anticipate,” “foresee,” “forecast,” “estimate,” “intend,” “plan,” “future,” “project,” “contemplate,” “could,” “would,” and similar expressions that are intended to identify forward-looking statements, which are generally not historical in nature. It is uncertain whether any of the events anticipated by the forward-looking statements will transpire or occur, or if any of them do, what impact they will have on the Company or its share price. The Company’s forward-looking statements involve certain assumptions and significant risks and uncertainties (some of which are beyond its control) that could cause actual results to differ materially from its historical experience and present expectations or projections, including but not limited to:
•
the effect of the announcement of the proposed transaction on the Company’s ability to retain and hire key personnel and maintain relationships with customers, suppliers and others with whom the Company does business, or on our operating results and business generally;
•
risks that the proposed transaction disrupts current plans and operations or creates unanticipated difficulties or expenditures;
•
the outcome of any legal proceedings related to the proposed transaction;
•
the occurrence of any event, change or other circumstances that could give rise to the termination of the Acquisition Agreement;
•
the ability of the parties to consummate the proposed transaction on a timely basis or at all;
•
the satisfaction of the conditions precedent to consummation of the proposed transaction, including, without limitation, the ability to secure any and all required regulatory and shareholder approvals on the terms expected, at all or in a timely manner;
•
the Company’s ability to implement its plans, forecasts and other expectations with respect to its business after the completion of the proposed transaction and realize expected benefits;
•
business disruption following the proposed transaction;
•
the Company’s ability to implement its business strategy;
•
the Company’s financial outlook and the financial outlook of the automated teller machines and multi-function financial services kiosks (collectively, “ATMs”) industry and the continued usage of cash by consumers at rates near historical patterns;
•
the impact of macroeconomic conditions, including the future impacts of the COVID-19 outbreak on global economic conditions, which is highly uncertain and difficult to predict;
•
the Company’s ability to respond to recent and future network and regulatory changes;
•
the Company’s ability to manage cybersecurity risks and protect against cyber-attacks and manage and prevent cyber incidents, data breaches or losses, or other business disruptions;
•
the Company’s ability to respond to changes implemented by networks and how they determine interchange, scheduled and potential reductions in the amount of net interchange that it receives from global and regional debit networks due to pricing changes implemented by those networks as well as changes in how issuers route their ATM transactions over those networks;
•
the Company’s ability to renew its existing merchant relationships on comparable or improved economic terms and add new merchants;
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•
changes in interest rates and foreign currency rates;
•
the Company’s ability to successfully manage its existing international operations and to continue to expand internationally;
•
the Company’s ability to manage concentration risks with and changes in the mix of key customers, merchants, vendors, and service providers;
•
the Company’s ability to maintain appropriate liquidity;
•
the Company’s ability to prevent thefts of cash and maintain adequate insurance;
•
the Company’s ability to provide new ATM solutions to retailers and financial institutions including the demand for any such new ATM solutions as well as its ability to place additional banks’ brands on ATMs currently deployed;
•
the Company’s ATM vault cash rental needs, including potential liquidity issues with its vault cash providers and its ability to continue to secure vault cash rental agreements in the future and once secured, on reasonable economic terms;
•
the Company’s ability to manage the risks associated with its third-party service providers failing to perform their contractual obligations;
•
the Company’s ability to renew its existing third-party service provider relationships on comparable or improved economic terms;
•
the Company’s ability to successfully implement and evolve its corporate strategy;
•
the Company’s ability to compete successfully with new and existing competitors;
•
the Company’s ability to meet the service levels required by its service level agreements with its customers;
•
the additional risks the Company is exposed to in its United Kingdom (“UK”) armored transport business;
•
the Company’s ability to pursue, complete, and successfully integrate acquisitions, strategic alliances, or joint ventures;
•
the impact of changes in laws, including tax laws that could adversely affect the Company’s business and profitability;
•
the impact of, or uncertainty related to, the UK’s exit from the European Union, including any material adverse effect on the tax, tax treaty, currency, operational, legal, human, and regulatory regime and macro-economic environment to which it will be subject to as a UK company;
•
the Company’s ability to adequately maintain and upgrade its ATM fleet to address changes in industry standards, regulations and consumer behavior patterns;
•
the Company’s ability to retain its key employees and maintain good relations with its employees; and
•
the Company’s ability to manage the fluctuation of its operating results, including as a result of the foregoing and other risk factors included in the Company’s Annual Report on Form 10-K for the year ended December 31, 2019.
While the risks presented in this proxy statement are considered representative, no such list should be considered to be a complete statement of all potential risks and uncertainties that may arise, including in connection with the proposed transaction. For additional information about other factors that could cause actual results to differ materially from those described in the forward-looking statements, please refer to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, as updated by the Company’s Quarterly Report on Form 10-Q for the quarter ended September 30, 2020, and those set forth from time-to-time in other filings with the SEC. Readers are cautioned not to place undue reliance on forward-looking statements contained in this communication, which speak only as of the date of this communication. Except as required by applicable law, the Company undertakes no obligation to publicly update or revise any forward-looking statements after the date they are made, whether as a result of new information, future events, or otherwise.
25
PARTIES TO THE ACQUISITION
Cardtronics
Cardtronics provides convenient automated consumer financial services through its global network of ATMs. As of December 31, 2019, we were the world’s largest ATM owner/operator, providing various services to approximately 285,000 ATMs globally. Our website address is www.cardtronics.com. The information provided on our website is not part of this proxy statement and is not incorporated by reference in this proxy statement by this or any other reference to our website in this proxy statement. Additional information about the Company is contained in our public filings, which are incorporated by reference in this proxy statement. See the section entitled “Where You Can Find More Information,” beginning on page 125, for more information.
BidCo
BidCo is a private limited company incorporated in England and Wales that was formed on December 11, 2020, solely for the purpose of engaging in the transactions contemplated by the Acquisition Agreement. BidCo has not engaged in any business activities other than in connection with the transactions contemplated by the Acquisition Agreement.
BidCo is an affiliate of certain funds (which we refer to as the “Apollo Funds”) managed by affiliates of Apollo Global Management, Inc. (together with its subsidiaries, collectively referred to in this proxy statement as “AGM”). AGM is a leading global alternative investment manager with offices in New York, Los Angeles, San Diego, Houston, Bethesda, London, Frankfurt, Madrid, Luxembourg, Mumbai, Delhi, Singapore, Hong Kong, Shanghai and Tokyo. AGM had assets under management of approximately $433 billion as of September 30, 2020 in private equity, credit and real assets funds invested across a core group of nine industries where AGM has considerable knowledge and resources. AGM’s shares are listed on the NYSE under the symbol “APO”.
Business and Background of Natural Persons Related to the Apollo Filing Persons
AGM
Please refer to “Parties Involved in the Acquisition” for information regarding AGM.
Additional information regarding the names, business addresses and material occupations, positions, offices or employment of the directors and executive officers of AGM is contained in the proxy statement filed by AGM on August 20, 2020 and such information is incorporated herein by reference.
Apollo Funds
Apollo Investment Fund IX, L.P. is a Delaware limited partnership. The registered office of Apollo Investment Fund IX, L.P. is located at c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The general partner of Apollo Investment Fund IX, L.P. is Apollo Advisors IX, L.P., and the general partner of Apollo Advisors IX, L.P. is Apollo Capital Management IX, LLC. The sole member of Apollo Capital Management IX, LLC is APH Holdings, L.P, and the general partner of APH Holdings, L.P. is Apollo Principal Holdings III GP, Ltd. The name and material occupation, position, office or employment of the directors and officers of Apollo Principal Holdings III GP, Ltd. are listed below. The name and material occupation, position, office or employment of the officers of Apollo Capital Management IX, LLC are listed below.
Apollo Overseas Partners (Delaware) IX, L.P. is a Delaware limited partnership. The registered office of Apollo Overseas Partners (Delaware) IX, L.P is located at c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The general partner of Apollo Overseas Partners (Delaware) IX, L.P. is Apollo Advisors IX, L.P., and the general partner of Apollo Advisors IX, L.P. is Apollo Capital Management IX, LLC. The sole member of Apollo Capital Management IX, LLC is APH Holdings, L.P, and the general partner of APH Holdings, L.P. is Apollo Principal Holdings III GP, Ltd.
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Apollo Overseas Partners (Delaware 892) IX, L.P. is a Delaware limited partnership. The registered office of Apollo Overseas Partners (Delaware 892) IX, L.P. is located at c/o Corporation Service Company, 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The general partner of Apollo Overseas Partners (Delaware 892) IX, L.P. is Apollo Advisors IX, L.P., and the general partner of Apollo Advisors IX, L.P. is Apollo Capital Management IX, LLC. The sole member of Apollo Capital Management IX, LLC is APH Holdings, L.P, and the general partner of APH Holdings, L.P. is Apollo Principal Holdings III GP, Ltd.
Apollo Overseas Partners IX, L.P. is a Cayman Islands limited partnership. The registered office of Apollo Overseas Partners IX, L.P is located at c/o Walkers Corporate Limited, Cayman Corporate Centre, 27 Hospital Road, George Town, Grand Cayman KY1-9008, Cayman Islands. The general partner of Apollo Overseas Partners IX, L.P. is Apollo Advisors IX, L.P., and the general partner of Apollo Advisors IX, L.P. is Apollo Capital Management IX, LLC. The sole member of Apollo Capital Management IX, LLC is APH Holdings, L.P, and the general partner of APH Holdings, L.P. is Apollo Principal Holdings III GP, Ltd.
Apollo Overseas Partners (Lux) IX, SCSp is special limited partnership formed under the laws of Luxembourg. The registered office of Apollo Overseas Partners (Lux) IX, SCSp is located at c/o AMI (Luxembourg) S.a r.l., Le Dome 3rd Floor, 2-8, Avenue Charles de Gaulle, L-1653 Luxembourg, Grand Duchy of Luxembourg. The general partner of Apollo Overseas Partners (Lux) IX, SCSp is Apollo Overseas Partners (Lux) IX, S.à.r.l.
The business address of each of Apollo Overseas Partners (Lux) IX, S.à.r.l’s managers is: c/o AMI (Luxembourg) S.a r.l., Le Dome 3rd Floor, 2-8, Avenue Charles de Gaulle, L-1653 Luxembourg, Grand Duchy of Luxembourg.
The name and material occupation, position, office or employment of the managers of Apollo Overseas Partners (Lux) IX, S.à.r.l are listed below.
|
Name
|
| |
Title
|
|
| James R. Crossen | | | Manager | |
| Efisio Follesa | | | Manager | |
| Fabrice Jeusette | | | Manager | |
| Fabrien Morelli | | | Manager | |
| Katherine G. Newman | | | Manager | |
The business address of each of Apollo Principal Holdings III GP, Ltd.’s directors and officers is: 9 West 57th Street, 43rd Floor, New York, New York 10019.
The name and material occupation, position, office or employment of the directors and officers of Apollo Principal Holdings III GP, Ltd. are listed below.
|
Name
|
| |
Title
|
|
| Leon D. Black | | | Director & President | |
| Elise Boyle | | | Vice President | |
| Matthew Breitfelder | | | Vice President | |
| Anthony Civale | | | Vice President, Co-Chief Operating Officer | |
| John DeRosa | | | Vice President | |
| James Elworth | | | Vice President, Assistant Secretary | |
| Joseph D. Glatt | | | Vice President, Assistant Secretary | |
| Joshua J. Harris | | | Director & Vice President | |
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|
Name
|
| |
Title
|
|
| Martin B. Kelly | | | Vice President, Chief Financial Officer & Co-Chief Operating Officer | |
| Scott Kleinman | | | Vice President | |
| William B. Kuesel | | | Vice President, Assistant Secretary | |
| Maria Lennox | | | Vice President, Assistant Secretary | |
| Jessica L. Lomm | | | Vice President, Assistant Secretary | |
| Laurie D. Medley | | | Vice President, Assistant Secretary | |
| Katherine G. Newman | | | Vice President, Assistant Secretary | |
| Marc J. Rowan | | | Director & Vice President | |
| John J. Suydam | | | Vice President, Secretary | |
| Shari Verschell | | | Vice President, Assistant Secretary | |
| Christian Weideman | | | Vice President, Assistant Secretary | |
| James Zelter | | | Vice President | |
The business address of each of Apollo Capital Management IX, LLC’s officers is: 9 West 57th Street, 43rd Floor, New York, New York 10019.
The name and material occupation, position, office or employment of the officers of Apollo Capital Management IX, LLC are listed below.
|
Name
|
| |
Title
|
|
| Reinhold Asamoa-Frimpong | | | Vice President | |
| Robert Azerad | | | Vice President | |
| Marc Becker | | | Vice President | |
| Lawrence Berg | | | Vice President | |
| Leon D. Black | | | President | |
| John Bookout | | | Vice President | |
| Elise Boyle | | | Vice President | |
| Matthew Breitfelder | | | Vice President | |
| Jonathan Cancro | | | Vice President | |
| James R. Crossen | | | Vice President | |
| John DeRosa | | | Vice President | |
| Stephanie Drescher | | | Vice President | |
| Christopher Edson | | | Vice President | |
| James Elworth | | | Vice President, Assistant Secretary | |
| Samuel Feinstein | | | Vice President | |
| Joseph D. Glatt | | | Vice President, Assistant Secretary | |
| Isabelle Gold | | | Vice President, Assistant Secretary | |
| Wilson Handler | | | Vice President | |
| Joshua J. Harris | | | Vice President | |
| Christine Hommes | | | Vice President | |
| Andrew Jhawar | | | Vice President | |
| Julia Ji | | | Vice President | |
| Robert Kalsow-Ramos | | | Vice President | |
| Martin Kelly | | | Vice President | |
| Scott Kleinman | | | Vice President | |
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|
Name
|
| |
Title
|
|
| William B. Kuesel | | | Vice President, Assistant Secretary | |
| Theodore Kwon | | | Vice President | |
| Maria Lennox | | | Vice President, Assistant Secretary | |
| Jessica L. Lomm | | | Vice President, Assistant Secretary | |
| Steve Martinez | | | Vice President | |
| Laurie D. Medley | | | Vice President, Assistant Secretary | |
| Matthew Michelini | | | Vice President | |
| Trevor Mills | | | Vice President | |
| Antoine Munfakh | | | Vice President | |
| Pratik Mukhtiyar | | | Vice President | |
| Katherine G. Newman | | | Vice President, Assistant Secretary | |
| Matthew Nord | | | Vice President | |
| Robert Pasteelnick | | | Vice President | |
| Eric Press | | | Vice President | |
| Reed Rayman | | | Vice President | |
| Michael Reiss | | | Vice President | |
| Marc J. Rowan | | | Vice President | |
| Ephraim Rudman | | | Vice President | |
| David Sambur | | | Vice President | |
| Vishal Sheth | | | Vice President | |
| Joshua Simpson | | | Vice President | |
| Lee Solomon | | | Vice President | |
| Justin Stevens | | | Vice President | |
| Aaron Stone | | | Vice President | |
| Geoffrey D. Strong | | | Vice President | |
| John J. Suydam | | | Vice President, Secretary | |
| Gareth Turner | | | Vice President | |
| Shari Verschell | | | Vice President, Assistant Secretary | |
| Alex Van Hoek | | | Vice President | |
| Olivia Wassenaar | | | Vice President | |
| Christian Weideman | | | Vice President, Assistant Secretary | |
BidCo
Please refer to “Parties Involved in the Acquisition” for information regarding BidCo.
BidCo does not have any officers.
The business address of each of BidCo’s directors is: 9 West 57th Street, 43rd Floor, New York, New York 10019.
The name and material occupation, position, office or employment of the directors of BidCo are listed below.
Robert Kalsow-Ramos. Mr. Kalsow-Ramos is a director of BidCo. Mr. Kalsow-Ramos is a Partner in Private Equity at AGM primarily focused on investments in the technology and services sectors. Prior to joining AGM in 2010, Mr. Kalsow-Ramos was a member of the Investment Banking group at Morgan Stanley. Mr. Kalsow-Ramos serves on the boards of directors of Tech Data, Alorica, Intrado and The TEAK
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Fellowship, a non-profit organization. Mr. Kalsow-Ramos previously served on the boards of directors of Hexion Inc., Momentive Performance Materials and Noranda Aluminum and was involved with AGM’s investment in Evertec Inc.
Jonathan Williams. Mr. Williams is a director of BidCo. Mr. Williams is a Principal in Private Equity at AGM.
Business and Background of Persons Related to the HEC Filing Persons
The business address of each of the persons and entities described below is 570 Lexington Ave, New York, NY 10022. The business telephone number of each of the persons and entities described below is (212) 521-8495. During the past five years, none of the persons or entities described has been (i) convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.
Hudson Executive Capital LP is a Delaware limited partnership. Hudson Executive Capital LP’s principal business is to serve as investment advisor to certain affiliated investment funds.
HEC Management GP LLC is a Delaware limited liability company. HEC Management GP LLC’s principal business is to serve as the general partner of Hudson Executive Capital LP.
HEC Performance GP LLC is a Delaware limited liability company. HEC Performance GP LLC’s principal business is to serve as the general partner of HEC Master Fund LP.
HEC SPV I GP LLC is a Delaware limited liability company. HEC SPV I GP LLC’s principal business is to serve as the general partner of HEC SPV I LP.
HEC Master Fund LP is a Cayman Islands exempted limited partnership. The principal business of HEC Master Fund LP is investing in securities.
HEC SPV I LP is a Delaware limited partnership. The principal business of HEC SPV I LP is purchasing certain securities of the Company.
DGB Hudson, LLC is a Delaware limited liability company. The principal business of DGB Hudson, LLC is to serve as managing member of HEC Management GP LLC.
The general partner of HEC Master Fund LP is HEC Performance GP LLC. The general partner of HEC SPV I LP is HEC SPV I GP LLC. The managing member of each of HEC Performance GP LLC and HEC SPV I GP LLC is HEC Management GP LLC. Hudson Executive Capital LP is the investment adviser of HEC Master Fund LP and HEC SPV IV LP. The general partner of Hudson Executive Capital LP is HEC Management GP LLC. The managing members of HEC Management GP LLC are Douglas Braunstein and DGB Hudson, LLC. The managing member of DGB Hudson, LLC is Douglas Bergeron.
Mr. Braunstein has served as Managing Partner and Founder of HEC since 2015. Previously, Mr. Braunstein served at JPMorgan Chase & Co., from March 1997 to January 2015, with roles as CFO, Vice Chair, member of the Operating Committee, Head of Americas Investment Banking, and Global M&A, among others. Mr. Braunstein serves on the boards of directors of Cardtronics Plc and USA Technologies, Inc. Mr. Braunstein previously served on the boards of directors of Eagle Pharmaceuticals, Inc. and Corindus Vascular Robotics, Inc.
Douglas Bergeron has served as a Managing Partner of Hudson Executive and the CEO of Hudson Executive Investment Corp. since February 2020. Mr. Bergeron has served as the founder and sole shareholder of DGB Investment, Inc. since 2002. In 2001, he led the acquisition of VeriFone Systems, Inc. (Verifone) from Hewlett-Packard. In 2002, Mr. Bergeron, as Chief Executive Officer of Verifone, partnered with GTCR, and grew VeriFone into a multi-national company with an enterprise value exceeding $4 billion by 2013, when he left the company. Since 2013, Mr. Bergeron has served as Chairman of the Board of Opus. In 2016, Mr. Bergeron joined the Board of Directors of United Language Group. In 2017, Mr. Bergeron
30
became Chairman of the Board of the Directors of Nyotron. Mr. Bergeron has been a member of the Board of Directors of Pipeworks Studios since 2018 and of Renters Warehouse since 2015. Mr. Bergeron has served as the Chairman of the Board of Directors of USA Technologies, Inc. since 2020. Mr. Bergeron serves as an investor and advisor to Blend, Inc.
31
THE COURT MEETING AND THE GENERAL MEETING
The Court Meeting
Date, Time and Place of the Court Meeting
The Court Meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] [a.m.]/[p.m.] (London time).
Purpose of the Court Meeting
The Court Meeting is being held to allow the Company Shareholders to consider and, if thought fit, approve the Scheme. The purpose of the Scheme is to provide for BidCo to acquire all of the issued and to be issued Shares of Cardtronics. This is to be achieved by means of an automatic transfer of all of the outstanding Scheme Shares at the Scheme Record Time to BidCo or its subsidiary or a DR Nominee, in consideration for which BidCo will pay the Per Share Consideration on the basis set out in the Scheme. Before the Court’s sanction can be sought for the Scheme, the Scheme requires the approval of the Court Scheme Proposal by the Company Shareholders at the Court Meeting.
The General Meeting
Date, Time and Place of the General Meeting
The General Meeting will be held at Building 4, Trident Place, Mosquito Way, Hatfield, Hertfordshire, AL10 9UL, United Kingdom on [•], 2021 at [•] [a.m.]/[p.m.] (London time) (or as soon thereafter as the Court Meeting shall have concluded or been adjourned).
Purpose of the General Meeting
The General Meeting is being held to allow the Company Shareholders to consider and, if thought fit, approve the Articles Amendment Proposal and the Advisory Transaction-Related Compensation Proposal. The Articles Amendment Proposal will be proposed as a special resolution, and the Advisory Transaction-Related Compensation Proposal will be proposed as an ordinary resolution.
•
Articles Amendment Proposal: To give the Board the authority to take all necessary action to carry the Scheme into effect and to amend the Company’s articles of association as described in “Articles Amendment Proposal” below at the General Meeting.
•
Advisory Transaction-Related Compensation Proposal: To approve, in accordance with Section 14A of the Exchange Act, on an advisory, non-binding 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 Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable.
The approval of the Advisory Transaction-Related Compensation Proposal is not a condition to the consummation of the Acquisition. In addition, as the proposal is non-binding, the result of the vote will not require the Board to take any action. Subject to the satisfaction or waiver of the other conditions to the consummation of the Acquisition, the Scheme will become effective and the compensation may be paid or become payable whether or not the Advisory Transaction-Related Compensation Proposal is approved at the General Meeting.
Voting at the Court Meeting and the General Meeting
Each Shareholder of Record and each Beneficial Holder at the close of business on the Voting Record Time will receive notice of the Court Meeting and the General Meeting.
Each Shareholder of Record at the Voting Record Time will be entitled to vote on all resolutions to be put to the Company Shareholders at the Court Meeting and the General Meeting or they may appoint another person or persons, whether a shareholder of the Company or not, as their proxy or proxies, to exercise
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all or any of their rights to vote at the Court Meeting and the General Meeting. Due to the COVID-19 Restrictions, Shareholders of Record will not be permitted to attend the applicable meeting in person and it is therefore very important that they vote by appointing the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline.
If you are a Beneficial Holder, only your broker, bank, trust or other nominee that is a Shareholder of Record can vote your Shares, and the vote cannot be cast unless you either (i) provide instructions to your broker, bank, trust or other nominee or (ii) obtain a legal proxy by contacting your broker, bank, trust or other nominee, which entitles you to vote the Shares as proxy for the Shareholder of Record. Each Beneficial Holder on the Voting Record Time will be entitled to direct his or her broker, bank, trust or other nominee how to vote such Shares on all resolutions to be put to the shareholders at the Court Meeting and the General Meeting. You should follow the directions provided by your broker, bank, trust or other nominee regarding how to instruct such person to vote your Shares.
At the Court Meeting and the General Meeting, voting will be by way of poll and each Shareholder of Record present by proxy will be entitled to one vote for each Share held by such Shareholder of Record as of the Voting Record Time.
For the General Meeting, a quorum, which is the presence of qualifying persons who together are entitled to vote upon the business to be transacted in respect of a majority of the issued Shares, present by proxy for a shareholder or a duly authorized representative of a corporation or other entity that is a shareholder, must be present. If you are a Shareholder of Record, your shares held as of the Voting Record Time will be counted as being present at the meeting only if you submit a properly executed proxy. Abstentions and broker non-votes will be counted for the purpose of determining whether a quorum is present at the General Meeting. For the Court Meeting, the Court must be satisfied that the votes cast are a fair and reasonable representation of the opinion of the holders of the Scheme Shares.
It is important that, for the Court Meeting in particular, as many votes as possible are cast, so that the Court may be satisfied that there is a fair and reasonable representation of the opinion of the holders of the Scheme Shares. You are therefore strongly urged to sign and return your Court Meeting Proxy Card or voting instructions by appointing the chair of the Court Meeting as your proxy and your General Meeting Proxy Card or voting instructions by appointing the chair of the General Meeting as your proxy as soon as possible. Although the completion and return of the proxy cards would not ordinarily prevent a Shareholder of Record from attending, voting and speaking at either the Court Meeting or the General Meeting, or any adjournment thereof, in person if you are entitled to do so, due to the COVID-19 Restrictions, you will not be granted access to the Court Meeting or the General Meeting in person.
If you are a Beneficial Holder, as a matter of English law, your name will not be entered in the Company’s register of members. Accordingly, if you wish to vote directly (i.e., in your own name) at the Court Meeting and/or the General Meeting, you must arrange for the completion of a stock transfer form by the applicable Shareholder of Record in respect of such Shares that you wish to be transferred into your name, pay any related UK stamp duty, if applicable, and send the completed stock transfer form and related documentation to the Company’s transfer agent, Computershare Trust Company N.A., prior to the Voting Record Time. Beneficial Holders who wish to vote directly at the Court Meeting and/or General Meeting should take care to send such stock transfer form in respect of their Shares to permit processing to be completed by [•] prior to the Voting Record Time. Due to the COVID-19 Restrictions, Shareholders of Record will not be able to attend the Court Meeting or the General Meeting and, in order to vote their Shares, must appoint the chair of each of the Court Meeting and the General Meeting, as applicable, as their proxy before the relevant deadline.
Proxies
Each copy of this proxy statement mailed to Shareholders of Record is accompanied by two proxy cards with instructions for voting. The proxy card labeled “Court Meeting Proxy Card” corresponds to the Court Meeting, and the proxy card labeled “General Meeting Proxy Card” corresponds to the General Meeting. You should complete and return BOTH proxy cards accompanying this document to ensure that your vote is counted at both meetings, or at any adjournment or postponement of the meetings. You may also authorize a proxy to vote your Shares by telephone or through the Internet as instructed on the proxy cards.
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A space has been included in the proxy cards to allow Shareholders of Record to specify the number of shares in respect of which that proxy is to be appointed. A proxy need not be a Shareholder of Record, but such proxy must attend the relevant shareholder meeting to represent a Shareholder of Record. In light of the COVID-19 Restrictions, proxies (other than the chair of each of the Court Meeting and the General Meeting) will not be granted access to the Court Meeting or the General Meeting in person. Accordingly, Shareholders of Record are strongly encouraged to appoint the chair of each of the Court Meeting and the General Meeting as their proxy before the relevant deadline. A separate proxy card should be used for each proxy appointment. If you require additional proxy cards, please contact Georgeson LLC, Shareholders, Banks and Brokers Call Toll Free: 888-666-2594. If your Shares are held for you by a bank, broker, trust or other nominee, you should call your bank, broker, trust or other nominee.
If you are a Beneficial Holder as of the Voting Record Time, you must direct your broker, bank, trust or other nominee to vote, in accordance with the voting instructions you have received from your broker, bank, trust or other nominee.
If you are a Shareholder of Record as of the Voting Record Time, you can revoke your proxy or voting instructions or change your vote after you have delivered your proxy or voting instructions as follows:
•
by sending a written notice to the Secretary of the Company at the address set forth below in time to be received before the deadline for receipt of proxy cards for the Court Meeting and General Meeting, stating that you would like to revoke your proxy; or
•
by completing, signing and dating another proxy card and returning it by mail in time to be received before the deadline for receipt of proxy cards for the Court Meeting and General Meeting or by submitting a later dated proxy via the Internet or telephone, in which case your later-submitted proxy will be recorded and your earlier proxy revoked.
Please note that due to the COVID-19 Restrictions, Shareholders of Record will not be able to attend the Court Meeting or the General Meeting in person.
Written notices of revocation and other communications about revoking your proxy should be sent via e-mail to: [•].
If you are a Beneficial Holder as of the Voting Record Time, you should contact your broker, bank, trust or other nominee for instructions on how to revoke your voting instructions.
All Shares represented by valid proxies that the Company receives through this solicitation, and that are not revoked, will be voted in accordance with the instructions on the proxies.
If you are a Shareholder of Record and you fail to make a specification on your proxy cards as to how you want your shares voted before signing and returning it, your proxy will be voted in accordance with the Board’s recommendation, “FOR” the Court Scheme Proposal, “FOR” the Articles Amendment Proposal and “FOR” the Advisory Transaction-Related Compensation Proposal. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
Solicitation of Proxies
The Company will bear its own costs and expenses incurred in connection with the filing, printing and mailing of this proxy statement to shareholders and the retention of any information agent or other service provider in connection with the Acquisition. This proxy solicitation is being made by the Company on behalf of the Board. The Company has hired Georgeson LLC to assist in the solicitation of proxies. The Company has agreed to pay Georgeson LLC a fee of approximately $40,000 plus payment of certain fees and expenses for its services to solicit proxies. In addition to this mailing, proxies may be solicited by directors, officers or employees of the Company or its affiliates in person or by telephone or electronic transmission. None of the directors, officers or employees will be directly compensated for such services.
In accordance with applicable regulations, the Company also will reimburse brokerage firms and other custodians, nominees and fiduciaries for their expenses incurred in sending proxies and proxy materials to Beneficial Holders of Shares.
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COURT SCHEME PROPOSAL
The Scheme
The following section of this proxy statement explains, among other things, the effect of the Scheme and, together with the further information contained elsewhere in this proxy statement, constitutes the explanatory statement in respect of the Scheme as required by section 897 of the Companies Act. Accordingly, in addition to the information contained in the following section of this proxy statement, your attention is drawn to the further information contained elsewhere in this proxy statement and you are advised to read this proxy statement in full.
The Acquisition is to be implemented by means of a Court-sanctioned scheme of arrangement between the Company and the Scheme Shareholders, under Part 26 of the Companies Act. Implementation of the Scheme requires approval of the Scheme by the Company Shareholders at the Court Meeting (the Court Scheme Proposal). The Scheme also requires the sanction of the Court following this approval. The Scheme is set out in full in Annex B of this proxy statement.
The purpose of the Scheme is to provide for BidCo to acquire all of the issued and to be issued ordinary share capital of the Company. This is to be achieved by means of an automatic transfer of all Scheme Shares outstanding at the Scheme Record Time to BidCo or its subsidiary or a DR Nominee, in consideration for which BidCo will pay the Per Share Consideration on the basis set out in the Scheme.
Sanction of the Scheme by the Court
Under the Companies Act, the Scheme also requires the sanction of the Court. The hearing by the Court to sanction the Scheme is expected to be scheduled following the satisfaction or waiver of the other conditions to the Closing, which are summarized in the section of this proxy statement titled “The Acquisition Agreement — Conditions to the Acquisition” beginning on page 108, other than those that are by their terms to be satisfied at the consummation of the Acquisition. Scheme Shareholders are entitled to attend the Court Hearing, should they wish to do so, in person or through counsel.
Following sanction of the Scheme by the Court, the Scheme will become effective in accordance with its terms upon a copy of the Court order being delivered to the Registrar of Companies. This is presently expected to occur two (2) UK business days after the date the Court sanctions the Scheme.
Upon the Scheme becoming effective, it will be binding on all Scheme Shareholders holding Scheme Shares at the Scheme Record Time (including all Beneficial Holders at the Scheme Record Time), irrespective of whether or not they voted in favor of, or against, the Scheme at the Court Meeting or in favor of, or against, or abstained from voting on the special resolution at the General Meeting.
If the Scheme does not become effective on or prior to the End Date (or such later date as may be agreed by the Company and BidCo and as the Court may approve (if such approval is required)), the Scheme will not become effective.
Required Vote
The Court Scheme Proposal must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time, representing 75% or more in value of the Shares at the Voting Record Time, in each case, voting (and entitled to vote) by proxy.
Approval of the Court Scheme Proposal is required for the consummation of the Acquisition.
Recommendation of the Board
After careful consideration, on December 14, 2020, the Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined
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to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Accordingly, the Board recommends that the Company Shareholders vote “FOR” the Court Scheme Proposal. For a more complete discussion of the Board’s recommendation, see “The Acquisition — Recommendation of the Board” and “The Acquisition — Reasons for Recommending the Approval of the Acquisition; Fairness of the Acquisition” each beginning on page 50. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
When considering the recommendation of the Board that you vote “FOR” the Court Scheme Proposal, you should be aware that certain of the Company’s directors and executive officers have interests in the Acquisition that may be different from, or in addition to, your interests as a Company Shareholder generally. The members of the Board were also aware of these interests in, among other matters, recommending that you vote “FOR” the Court Scheme Proposal. These interests are described in more detail in “The Acquisition — Interests of the Directors and Executive Officers in the Acquisition” beginning on page 71.
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ARTICLES AMENDMENT PROPOSAL
Amendment to the Company’s Articles of Association
It is proposed, pursuant to the Articles Amendment Proposal, that the articles of association of the Company be amended to ensure that any Shares issued after the Voting Record Time in respect of the Court Meeting and on or prior to the Scheme Record Time will be subject to the Scheme. It is also proposed to amend the articles of association so that any Shares issued to any person other than BidCo or its nominees after the Scheme Record Time will be automatically acquired by BidCo on the same terms of the Acquisition (other than terms as to timings and formalities). These provisions will avoid any person (other than BidCo or its nominees) being left with Shares after the Scheme becomes effective.
Special Resolution to be Proposed at the General Meeting
For the reasons described above, the Company is requesting that the Company Shareholders adopt the following resolution at the General Meeting, which is a special resolution:
THAT for the purpose of giving effect to the scheme of arrangement dated [•], 2021 (as amended or supplemented) between the Company and the holders of Scheme Shares (as defined in such scheme of arrangement), a print of which has been produced at this meeting and for the purposes of identification signed by the chairman of this meeting, in its original form or subject to any modification, addition, or condition as may be agreed between the Company and BidCo and approved or imposed by the Court (the Scheme):
(A) the directors of the Company (or a duly authorized committee of the directors) be and are hereby authorized to take all such action as they may consider necessary or appropriate for carrying the Scheme into effect; and
(B) with effect from the passing of this resolution, the articles of association of the Company be and are hereby amended by the adoption and inclusion of the following new article 145:
“145. Scheme of Arrangement
145.1 In this article, references to the Scheme are to the Scheme of Arrangement under Part 26 of the Companies Act 2006 between the Company and the holders of Scheme Shares (as defined in the Scheme) dated [•] 2021 in its original form or with or subject to any modification, addition or condition approved or imposed by the Court and mutually acceptable to the Company and Catalyst Holdings Limited. (the “Buyer”), and save as defined in this article, expressions defined in the Scheme shall have the same meanings in this article.
145.2 Notwithstanding either any other provision of these articles or the terms of any resolution whether ordinary or special passed by the Company in general meeting, if the Company issues any shares (other than to the Buyer or its nominee(s)) on or after the adoption of this article but at or before the Scheme Record Time (as defined in the Scheme), such shares shall be issued subject to the terms of the Scheme (and shall be Scheme Shares for the purposes of the Scheme) and the original or any subsequent holder or holders of such shares shall be bound by the Scheme accordingly.
145.3 Notwithstanding any other provision of these articles, if any shares are issued to any person (other than to the Buyer or its nominee(s)) (the “New Member”) after the Scheme Record Time (the “Disposal Shares”), such Disposal Shares shall be issued on the terms that the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) will, subject to the Scheme becoming effective in accordance with its terms, upon the Scheme becoming effective or, if later, upon the issue of the Disposal Shares, be immediately transferred to the Buyer (or as the Buyer may otherwise direct in writing to the Company) who shall be obliged to acquire all such Disposal Shares in consideration of the payment by or on behalf of the Buyer to the New Member of an amount in cash for each Disposal Share equal to the consideration that the New Member would have been entitled to had each Disposal Share been a Scheme Share.
145.4 On any reorganization of, or material alteration to, the share capital of the Company (including, without limitation, any subdivision and/or consolidation) carried out after the Effective Time (as defined in
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the Scheme), the value of the consideration per Disposal Share to be paid under paragraph (145.3) above shall be adjusted by the directors of the Company in such manner as the auditors of the Company or an independent investment bank selected by the Company may determine to ensure (as nearly as may be) parity of treatment with that provided for by paragraph (145.3) above. References in this article to shares shall, following such adjustment, be construed accordingly.
145.5 To give effect to any transfer required by this article, the Company may appoint any person as attorney and/or agent for the New Member to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) in favor of the Buyer (or as the Buyer may otherwise direct in writing to the Company) and do all such other things and execute and deliver all such documents as may in the opinion of the attorney or agent be necessary or desirable to vest the Disposal Shares in the Buyer (or as the Buyer may otherwise direct in writing to the Company) and pending such vesting to exercise all such rights attaching to the Disposal Shares as the Buyer may direct. If an attorney or agent is so appointed, the New Member shall not thereafter (except to the extent that the attorney fails to act in accordance with the directions of the Buyer) be entitled to exercise any rights attaching to the Disposal Shares unless so agreed in writing by the Buyer. The Company may give good receipt for the purchase price of the Disposal Shares and may register the Buyer as holder of the Disposal Shares and issue to it certificate(s) for the same. The attorney or agent shall be empowered to execute and deliver as transferor a form of transfer or instructions of transfer on behalf of the New Member (or any subsequent holder). The Company shall not be obliged to issue a certificate to the New Member for any Disposal Shares. Unless otherwise set forth in the Scheme, the Buyer shall settle the consideration due to the New Member pursuant to paragraph 145.3 above by sending a check drawn on a US clearing bank (or shall procure that such a check is sent) in favor of the New Member (or any subsequent holder or any nominee of such New Member or any such subsequent holder) for the purchase price of such Disposal Shares, as described in paragraph 145.3 above (and adjusted pursuant to paragraph 145.4 above, as applicable), as soon as possible and in any event no later than 14 days after the date on which the Disposal Shares are issued to the New Member.
145.6 If the Scheme shall not have become effective by the date referred to in clause 6.2 of the Scheme (or such later date, if any, as the Buyer and the Company may agree and the Court may approve (if such approval is required)), this article 145 shall be of no effect.
145.7 Notwithstanding any other provision of these articles, both the Company and the directors may refuse to register the transfer of any Scheme Shares effected between the Scheme Record Time and the effective date of the Scheme other than to the Buyer and/or its nominees pursuant to the Scheme.”
Required Vote
The Articles Amendment Proposal will be proposed as a special resolution, which means, provided that a quorum is present, such proposal will be approved if at least 75% of the votes cast on the Articles Amendment Proposal are cast in favor thereof.
Recommendation of the Board
After careful consideration, on December 14, 2020, the Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Accordingly, the Board recommends that the Company Shareholders vote “FOR” the Articles Amendment Proposal. For a more complete discussion of the Board’s recommendation, see “The Acquisition — Reasons for Recommending the Approval of the Acquisition; Fairness of the Acquisition” and “The Acquisition — Recommendation of the Board” each beginning on page 50. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
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When considering the recommendation of the Board that you vote “FOR” the Articles Amendment Proposal, you should be aware that certain of the Company’s directors and executive officers have interests in the Acquisition that may be different from, or in addition to, your interests as a shareholder generally. The members of the Board were also aware of these interests in, among other matters, recommending that you vote “FOR” the Articles Amendment Proposal. These interests are described in more detail in “The Acquisition — Interests of the Company’s Directors and Executive Officers in the Acquisition” beginning on page 71.
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ADVISORY TRANSACTION-RELATED COMPENSATION PROPOSAL
In accordance with Section 14A of the Exchange Act, the Company is providing the Company Shareholders the opportunity to cast a vote, on a non-binding, advisory basis, to approve 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 Acquisition and the agreements and understandings pursuant to which such compensation may be paid or become payable, as disclosed in the section entitled “The Acquisition — Interests of Directors and Executive Officers in the Acquisition — Golden Parachute Compensation,” beginning on page 75, including the table entitled “Golden Parachute Payment” and accompanying footnotes. As an advisory vote, this proposal is not binding upon the Company or the Board, and approval of this proposal is not a condition to completion of the Acquisition. Accordingly, if the Court Scheme Proposal and the Articles Amendment Proposal are approved and the Acquisition is completed, the compensation that is based on or otherwise relates to the Acquisition will be payable to the Company’s named executive officers, subject only to the conditions applicable thereto, regardless of the outcome of the approval of this proposal.
Accordingly, you are asked to vote on the following resolution:
“RESOLVED, that the Company Shareholders approve, on an advisory, non-binding basis, the compensation that will or may be paid or become payable to the named executive officers of the Company that is based on or otherwise relates to the Acquisition, as disclosed pursuant to Item 402(t) of Regulation S-K under the heading “The Acquisition — Interests of Directors and Executive Officers in the Acquisition — Golden Parachute Compensation,” beginning on page 75 (which disclosure includes the Golden Parachute Compensation Table and accompanying footnotes required pursuant to Item 402(t) of Regulation S-K).”
The Board, unanimously of those directors voting, recommends that Company Shareholders vote “FOR” the Advisory Transaction-Related Compensation Proposal. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
If you return a properly executed proxy card, but do not indicate instructions on your proxy card, your Shares represented by such proxy card will be voted “FOR” the Advisory Transaction-Related Compensation Proposal.
The Advisory Transaction-Related Compensation Proposal will be proposed as an ordinary resolution, which means, provided that a quorum is present, such proposal will be approved if a simple majority of the votes cast are in favor thereof. In addition, as the proposal is non-binding, the result of the vote will not require the Board to take any action. Completion of the Acquisition is not conditioned on approval of the Transaction-Related Compensation Proposal. Because the vote on this compensation proposal is advisory in nature only, it will not be binding on the Board. Accordingly, if the Court Scheme Proposal and the Articles Amendment Proposal are approved and the Acquisition is completed, the compensation may become payable, subject only to the conditions applicable thereto, regardless of the outcome of the non-binding, advisory vote.
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THE ACQUISITION
Overview
The Company is seeking the approval by the Company Shareholders of the Acquisition pursuant and subject to the terms of the Acquisition Agreement that the Company entered into on December 15, 2020 with BidCo. Under the terms of the Acquisition Agreement, subject to the satisfaction or waiver of specified conditions, BidCo will acquire all of the issued and to be issued Shares for $35.00 per Share.
The Board has approved the Acquisition Agreement and, unanimously of those directors voting, recommends that the Company Shareholders vote “FOR” the proposal to approve the Acquisition. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
Upon completion of the Acquisition, each Share that is issued and outstanding immediately prior to the Effective Date (other than Excluded Shares) will be acquired by BidCo in exchange for $35.00 per Share, in cash, subject to deduction for any required withholding taxes and without interest.
Following the completion of the Acquisition, the Company will become a wholly-owned subsidiary of BidCo.
On December 15, 2020, the Company entered into the Acquisition Agreement with BidCo, pursuant to which BidCo has agreed to acquire the Company by means of the Scheme for the Per Share Consideration, subject to the terms and conditions of the Acquisition Agreement. With the exception of Douglas Braunstein, the Board has approved the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition. Mr. Braunstein is the Managing Partner and Founder of HEC, a 19.4% shareholder of the Company that has agreed to rollover certain of its Shares in connection with the Acquisition, and he did not participate in any discussions or deliberations with respect to the Acquisition, the review of strategic alternatives and related matters and recused himself from approvals in connection with the Acquisition.
Pursuant to the Scheme and subject to the terms and conditions of the Acquisition Agreement, on the effective date of the Acquisition, BidCo shall acquire all of the Company’s issued and to be issued Shares other than (a) Shares legally or beneficially held by BidCo or any of its subsidiaries (or any nominee on their behalf), (b) any Shares held in treasury or owned, directly or indirectly, by the Company or any of its subsidiaries and (c) any Shares acquired by BidCo or its designee(s) pursuant to a contribution agreement between HEC and BidCo, none of which will be covered by the Scheme.
Background of the Acquisition
The Board, together with senior management, regularly review and assess, and engage with the Company’s shareholders regarding the Company’s strategic direction, financial performance and business plans with a view towards strengthening the Company’s business and identifying opportunities to increase shareholder value, taking into account financial, industry, competitive and other considerations. As part of this process, from time to time, the Board and senior management have reviewed potential strategic alternatives available to the Company, including strategic acquisitions and divestitures, in order to enhance the value of the Company’s business and operations.
Given the increasing strategic activity in the broader payments industry, and the significant role mergers and acquisitions were continuing to have in driving growth and scale in the industry, during a regularly scheduled Board meeting on May 15-16, 2019 in London, the Board reviewed strategic alternatives with senior management and the Company’s legal and financial advisors. After discussion of alternatives at that meeting, including the continued execution of the Company’s strategic plan on a stand-alone basis, potential acquisitions and potential business combinations, the Board authorized the Company’s financial advisor, Goldman Sachs, to approach a limited number of financial sponsors and strategic parties to gauge their interest in a transaction involving the Company. Based on confidentiality concerns, the Board directed Goldman Sachs to start the process by gauging interest from financial sponsors before approaching any strategic parties.
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In late May 2019, Goldman Sachs reached out to seven financial sponsors. Following this outreach, the Company entered into non-disclosure agreements with six financial sponsors, including AGM. Senior management of the Company met with and made presentations to six financial sponsors, including representatives of AGM, which meetings took place on June 5 and June 6, 2019. Also in late May, at the request of senior management of the Company, Goldman Sachs introduced Edward H. West, chief executive officer of the Company, to the chief executive officer of another participant in the payment industry, which we refer to as “Party A.” The two executives met on May 30, 2019. During the course of June 2019, representatives of Goldman Sachs and the Company’s management held various telephonic and in-person meetings with the six financial sponsors, including with representatives of AGM, to discuss the Company’s business and financial performance.
On June 25, 2019, representatives of AGM submitted a preliminary non-binding indication of interest to the Company indicating a price per share of $34.00 to $38.00 based on its evaluation of the information provided in the management presentation and follow-up calls. HEC was not a party to AGM’s June 25th proposal. No other financial sponsors submitted an indication of interest in 2019.
At a meeting on June 27, 2019, Goldman Sachs updated the Board on the results of the process to date and its engagement with the parties contacted and summarized AGM’s indication of interest (a copy of which had been provided to the Board). In addition, Goldman Sachs reviewed with the Board certain alternatives for capital return to shareholders, including share repurchases or dividends. After detailed discussion, the Board determined that the indication of interest submitted by AGM was not compelling and continuing to execute on the Company’s strategic plan would likely lead to greater value creation for shareholders than pursuit of a business combination at that time. As a result, at that time, the Board decided not to pursue discussions with AGM in respect of a potential business combination and not to continue reviewing strategic alternatives further.
During the remainder of 2019, the Company continued to execute on its business and strategic plan. Beginning in February 2020, the global COVID-19 pandemic resulted in widespread global business disruption. Shelter-in-place orders, promotion of social distancing measures, restrictions to businesses deemed non-essential and travel restrictions implemented throughout the world had a material impact on the ability of people to conduct transactions at the Company’s ATM locations and use of cash more generally. During this time, management and the Board had numerous conversations on how the global COVID-19 pandemic was impacting and may continue to impact the Company’s business, including the potential negative longer-term impact on the use of cash, the Company’s strategic plan and its financial results. Due to the difficulty in predicting the implications of the global COVID-19 pandemic on the business, the Company withdrew its 2020 annual guidance on April 1, 2020. On that day, the Company’s stock was trading at a 52-week low of $15.93. On August 6, 2020, the Company delivered its second quarter of 2020 earnings summary, which reported revenues of $233 million, down 32% versus the second quarter of 2019, adjusted EBITDA of $47 million, down 42% (on a constant currency basis) versus the second quarter of 2019 and adjusted earnings per share of $0.13 versus $0.69 in the second quarter of 2019.
On May 14, 2020, Robert Kalsow-Ramos, a partner at AGM, reached out by telephone to a member of senior management of the Company to express AGM’s continued interest in the Company and sector.
In August 2020, Mr. Kalsow-Ramos contacted Douglas Braunstein, a member of the Board and Managing Partner and Founder of HEC, the Company’s largest shareholder, expressing an interest in potential transactions with the Company. Mr. Kalsow-Ramos raised with Mr. Braunstein the possibility of HEC working with AGM with respect to such potential transactions. During late August and early September 2020, the discussions of such potential transactions and the possibility of HEC’s involvement in the transactions continued between Mr. Kalsow-Ramos and Mr. Braunstein.
On September 17, 2020, Mr. West received a call from Mr. Braunstein. Mr. Braunstein informed Mr. West that he had been approached by and was having preliminary discussions with AGM regarding a range of potential transactions involving the Company, and that HEC and AGM intended to send a letter in respect of such potential transactions in the coming days. On the morning of September 18, 2020, Mark Rossi, Chairman of the Board, received a call from Mr. Braunstein, during which Mr. Braunstein conveyed to Mr. Rossi the same information that he had disclosed to Mr. West the prior day regarding discussions with AGM about potential transactions. On September 21, 2020, the Company received a letter from AGM
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and HEC indicating their interest in acquiring, investing equity in, providing other financing to or otherwise partnering with the Company (which we refer to as the “September 21 Letter”). The September 21 Letter proposed, among other things, an initial 30-day period of business and financial due diligence and indicated that AGM and HEC had engaged Paul, Weiss, Rifkind, Wharton & Garrison LLP (which we refer to as “Paul Weiss”) and Cadwalader, Wickersham & Taft LLP (which we refer to as “Cadwalader”), respectively, as legal advisors. On September 23, 2020, the September 21 Letter was shared with the Board (other than Mr. Braunstein). It was decided by Messrs. West and Rossi that a previously-scheduled meeting of the Board on September 24, 2020 would be used to discuss the September 21 Letter. On September 23, 2020, Mr. Kalsow-Ramos called Mr. West to express AGM’s serious interest in potential transactions with the Company. Mr. West informed Mr. Kalsow-Ramos that he had received the September 21 Letter and would be discussing it with the Board (other than Mr. Braunstein).
On September 24, 2020, the Board convened by telephone with members of senior management attending to discuss general Board matters and the September 21 Letter. Based on discussions in advance of the meeting with their respective outside counsel, Mr. Braunstein notified the Company that as a result of HEC’s possible role in a potential transaction involving the Company he would recuse himself from the portion of any meetings of the Board at which potential transactions with HEC and AGM, or other strategic alternatives, would be discussed, for as long as potential transactions with HEC and AGM were under consideration. Mr. Braunstein also noted that the role HEC would take in any potential transaction had not been determined at that time. Following Mr. Braunstein’s exit from the meeting, Mr. West confirmed that the Company had engaged Weil, Gotshal & Manges LLP (which we refer to as “Weil”) and Ashurst LLP (which we refer to as “Ashurst”) as legal advisors and Goldman Sachs as financial advisor in connection with the review of strategic alternatives and the indication of interest from AGM and HEC. The Board discussed the September 21 Letter and concluded that it would not provide AGM and HEC with the requested 30-day period for business and financial diligence, but directed Messrs. Rossi and West and Gary Ferrera, chief financial officer of the Company, to engage with AGM and Mr. Braunstein to understand the parameters of the potential transactions referenced in the September 21 Letter, including, among other things, HEC’s potential role in a transaction, transaction structure, transaction value, financing and timing.
On September 25, 2020, Messrs. West, Rossi, Kalsow-Ramos and Braunstein had a call to discuss next steps and the need to have AGM execute a new non-disclosure agreement. On that day, the Company and AGM executed a non-disclosure agreement in substantially the same form that AGM had previously executed with the Company on June 3, 2019 as part of the Company’s strategic review process, which, among other things, included a 12-month standstill. On October 1, 2020, Mr. West and Mr. Ferrera conducted a videoconference with representatives of AGM, HEC and Goldman Sachs to discuss AGM and HEC’s interest in potential transactions involving the Company, to understand AGM’s indication of interest and HEC’s potential involvement, as well as to provide AGM with a high-level review of the Company’s business and financial performance.
On October 7, 2020, the Board (other than Mr. Braunstein) convened by telephone with members of senior management attending for an update on the discussions engaged in by Messrs. Rossi, West and Ferrera with AGM and HEC and to consider, among other things, whether and how to engage further with AGM and HEC and whether the Company should undertake a review of all strategic alternatives. Following discussion, the Board determined that engaging with AGM and HEC to explore the potential for a transaction, including to understand the value being proposed, was best for the Company’s shareholders, given, among other things, the parameters of the indication of interest, the reputation of AGM as a significant investor in the financial services sector and the proposed involvement of HEC, the Company’s largest shareholder, which has a deep knowledge of the Company. In addition, at the October 7 meeting, members of senior management reviewed with the Board management’s updated view of the Company’s long-range plan, which reflected management’s preliminary view of the known impacts of the global COVID-19 pandemic on the Company and the industry in which it operates.
On October 13, 2020, Mr. West, Mr. Ferrera and representatives of Goldman Sachs attended a videoconference with representatives of AGM and HEC to review the Company’s business and financial performance and management’s view of the Company’s prospects.
On October 16, 2020, members of the Company’s senior management and representatives of Goldman Sachs attended a videoconference with representatives of AGM and HEC to further review the Company’s financial performance.
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In mid-October 2020, representatives of AGM and HEC continued their discussions of the potential transactions involving the Company. Among other potential transaction structures, the representatives of AGM and HEC discussed the possibility of an acquisition transaction and the potential terms thereof.
On October 22, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending. Mr. Rossi informed the Board that AGM and HEC had, through Goldman Sachs, orally indicated their interest in a potential acquisition of the Company at consideration of $30.00 to $32.00 per share (which we refer to as the “October 22 Indication of Interest”) as one of the transactions under consideration. Representatives of Goldman Sachs summarized the October 22 Indication of Interest compared to management’s long-range plan and the historical and projected performance of the Company. Representatives of Weil reviewed with the Board significant factors that the Board should consider in evaluating the October 22 Indication of Interest, as well as all of its strategic alternatives generally. Senior management of the Company again discussed with the Board their views on the long-range plan and the impact of the global COVID-19 pandemic and other macroeconomic factors that could impact performance, including the considerable uncertainty arising from consumer behavioral changes as a result of the pandemic, and ultimately the achievement of the long-range plan. Senior management of the Company reminded the Board that the current long-range plan only reflected the known impacts of the global COVID-19 pandemic on the Company’s business. After discussions with management and the Company’s external advisors, the Board determined that the Company should contact certain potential strategic partners to gauge interest in a potential transaction, as well as continue to engage with AGM and HEC. The Board and the Company’s advisors discussed the parties that should be contacted and the process.
Over the course of the next several weeks, the Company prepared a comprehensive virtual data room, which also included specific due diligence materials requested by AGM, HEC and their respective advisors (which we refer to as the “Data Room”). In addition, representatives of Goldman Sachs contacted parties as discussed with the Board concerning a potential acquisition of the Company, which we refer to as “Party B,” “Party C,” “Party D,” “Party E,” “Party F,” “Party H,” “Party I” and “Party J.” During this period, the Company entered into non-disclosure agreements with Party B, Party C, Party E, Party F and Party J.
On October 27, 2020, the Board had a scheduled monthly update call by telephone, the first part of which Mr. Braunstein attended for general Board-related matters. Once this business was concluded, Mr. Braunstein exited the call and members of senior management provided the remaining Board members in attendance with an update on the status of the calls being made by Goldman Sachs to potentially interested parties. Management reported that Party D, which had not signed a non-disclosure agreement or been furnished any confidential information, had confirmed to Goldman Sachs that it was not interested in pursuing a transaction with the Company, and Goldman Sachs was continuing to engage with five additional parties with respect to their potential interest, including Party E, Party F, an additional party with whom senior management of the Company had initiated contact, which we refer to as “Party G,” Party H and Party I.
On October 29, 2020, Party H, which had not signed a non-disclosure agreement or been furnished any confidential information confirmed to Goldman Sachs that it was not interested in pursuing a transaction with the Company.
On November 5, 2020, the Company executed a non-disclosure agreement with HEC specific to the potential transactions under consideration, including an acquisition transaction.
On November 6, 2020, Mr. West had a call with an executive at Party G to discuss Party G’s interest in a potential transaction with the Company, and the Party G representative noted that he would review the opportunity with other members of senior management at Party G. No detailed terms of a potential transaction were discussed on this call. Subsequent to this call, Party G confirmed it was not interested in pursuing a transaction with the Company at this time.
In addition, also on November 6, 2020, representatives of Goldman Sachs spoke to Party I, who indicated it was not interested in pursuing a transaction with the Company. Party I did not sign a non-disclosure agreement and no confidential information was provided to Party I.
Throughout November, representatives of the Company, Goldman Sachs, AGM, HEC and AGM’s advisors conducted numerous teleconferences and videoconferences in respect of AGM and HEC’s due
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diligence review of the Company. The Data Room was first made available to AGM on November 3, 2020 and to HEC on November 5, 2020.
During the weeks of November 9, 2020 and November 16, 2020, management met with five interested parties (Party B, Party C, Party E, Party F and Party J) to review the Company’s business and performance and the Company continued to respond to diligence requests from AGM. Certain parties submitted follow up questions about the Company’s business and financial performance to representatives of Goldman Sachs, who worked with senior management at the Company to respond. These responses were sent by representatives of Goldman Sachs to the requesting party. Following these meetings, representatives of Goldman Sachs also contacted these five parties to discuss their level of interest in pursuing a transaction with the Company at that time and to answer additional questions about the process and the Company’s business. Through these calls, Party B, Party C and Party F indicated they were not interested in pursuing a transaction with the Company at this time.
On November 13, 2020, Goldman Sachs sent a letter to Party C, Party F and Party J, which provided that indications of interest in a potential transaction involving the Company should be submitted by 5:00 p.m. ET on November 23, 2020.
Also on November 13, 2020, the Board (other than Mr. Braunstein) convened by telephone with Goldman Sachs and members of senior management attending at which, among other things, Goldman Sachs updated the Board with respect to engagement with third parties, including its outreach to a total of nine other parties, of which (i) Party D, Party G, Party H and Party I had confirmed they were not interested in pursuing a transaction with the Company, (ii) Party B, Party C, Party E, Party F and Party J had entered into non-disclosure agreements and (iii) management had held meetings with each of Party B and Party F. Goldman Sachs confirmed that the management presentation had been provided to Party E and they were coordinating a meeting between Party E and management of the Company. Goldman Sachs also provided the Board with an illustrative timeline for a potential transaction should the Board determine to proceed on any proposal. Representatives of management also provided the Board with an update on the status of AGM’s continuing due diligence.
Management met with Party B and Party F on November 10, 2020, Party J on November 17, 2020 and Party C on November 19, 2020 to review the Company’s business and performance and continued to respond to diligence requests from AGM throughout this period. On November 19, 2020, at the direction of the Board, Goldman Sachs sent a letter to Party E, which provided that indications of interest in a potential transaction involving the Company should be submitted by 5:00 p.m. ET on November 23, 2020. Also on November 19, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending at which, among other things, the Board received further updates on the status of the outreach made to third parties to date and the status of ongoing discussions with AGM and certain other parties. Representatives of Goldman Sachs reported that, following meetings with the Company’s management team, Party B and Party F had declined to pursue the opportunity further as they were focused on other strategic priorities at the time and of the remaining three parties, Party C and Party J remained interested, and a management presentation was scheduled, but had not yet been held, with Party E. Representatives of Goldman Sachs then reported that AGM had completed most of its business due diligence and that it was in discussions with potential financing sources in connection with a transaction with the Company and that it expected to submit a non-binding offer in approximately the next seven to ten days.
On November 20, 2020, members of the Company’s management met with representatives of Party E to review the Company’s business and performance.
On November 23, 2020, Party J submitted to Goldman Sachs a non-binding offer to acquire the Company at a price between $30.00 and $32.00 per share in cash (which we refer to as the “Party J Proposal”). The Party J Proposal was subject to, among other things, the satisfactory completion of due diligence, negotiation and execution of mutually agreed upon definitive transaction documents and obtaining any necessary contractual, creditor and regulatory consents and approvals. The Party J Proposal was not subject to any financing contingency and Party J indicated that it would be able to execute definitive transaction documents within three months. Representatives of Goldman Sachs contacted Party J to further discuss certain terms of the Party J Proposal, including its ability to proceed on a more expedited basis.
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On November 25, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending, at which the Party J Proposal was discussed. Goldman Sachs updated the Board on the status of the ongoing discussions with interested parties including confirmation that each of Party C and Party E had confirmed that they did not intend to pursue a transaction with the Company further. Following discussion, the Board determined that Party J should move forward into a subsequent round of diligence. Representatives of Goldman Sachs also provided the Board with an update regarding ongoing discussions with AGM, informing the Board that AGM had completed most of its business due diligence and that HEC would be required to file an amendment to its statement of beneficial ownership on Schedule 13D if and when AGM and HEC submitted an offer for a specific transaction with the Company, which would likely indicate, among other things, HEC and AGM’s intent to acquire the Company and their indicative price range. At this meeting, based on prior discussions with the Board regarding potential downside scenarios to the previously discussed long-range plan, and systemic and other risks that could impact execution of that plan, management discussed the potential impact on the Company’s long-range plan of a slower recovery from the global COVID-19 pandemic, a substantial decrease in U.S. same store growth, slower growth in the U.S. managed services business, extended depression of cross-border travel and a systemic acceleration away from cash in the Company’s most mature international markets.
On the evening of November 25, 2020, Goldman Sachs contacted Party J to inform them that the Board decided that Party J should move forward into a second round of due diligence. As part of this process, Goldman Sachs requested Party J submit various pieces of information, including, among other things, a request list of business and financial diligence and a detailed list of individuals at Party J that would be involved in the diligence process. During the period from November 25, 2020 to December 4, 2020, Goldman Sachs reached out to Party J several times for an update on the diligence process because Party J had not submitted the requested information from the call on November 25, 2020 with Goldman Sachs. On December 4, 2020, during a call with representatives of Goldman Sachs, a representative of Party J indicated that it did not believe Party J would be able to move expeditiously and be in a competitive position in the timeframe contemplated by the Board.
During the period from November 25, 2020 to December 6, 2020, AGM substantially completed its business, financial and legal due diligence, and members of management continued to meet with representatives of AGM.
On December 3, 2020, at the request of AGM and HEC, Mr. West met Mr. Kalsow-Ramos and Mr. Braunstein for dinner in Houston, Texas to discuss status and their respective thoughts with respect to a potential transaction. The meeting was designed to give Mr. Kalsow-Ramos and Mr. West an opportunity to become better acquainted, and a potential transaction was discussed at a high-level. Mr. Kalsow-Ramos and Mr. Braunstein also discussed certain questions that had arisen from their due diligence. No transaction terms were specifically discussed at this meeting.
In early December 2020, Mr. Kalsow-Ramos and Mr. Braunstein discussed the terms of a non-binding offer to purchase the Company, including the terms of the potential transaction and the consideration to be offered to the Company Shareholders.
On December 7, 2020, Mr. Kalsow-Ramos and Mr. Braunstein agreed upon terms to propose the non-binding offer to purchase the Company. AGM and HEC also agreed at that time that HEC would make a joint acquisition proposal exclusively with AGM.
On December 7, 2020, each of Goldman Sachs and Mr. West received requests for a call with Mr. Kalsow-Ramos and Mr. Braunstein. The information shared in the calls later that day was consistent in that the Company should expect to receive overnight a definitive offer from AGM and HEC to purchase the Company for $31.00 per share in cash, a draft definitive transaction agreement, a draft amendment to HEC’s Schedule 13D filing, debt commitment letters and a copy of HEC’s irrevocable undertaking with respect to a transaction with AGM should one be consummated. This information was shared with the Board (other than Mr. Braunstein).
On December 8, 2020, consistent with what was conveyed by Mr. Kalsow-Ramos and Mr. Braunstein, representatives of Paul Weiss submitted to Goldman Sachs AGM’s and HEC’s non-binding, written proposal
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to acquire 100% of the outstanding ordinary shares of the Company for $31.00 per share in cash (which we refer to as the “December 8 Proposal”). The December 8 Proposal included drafts of (i) HEC’s amendment to Schedule 13D, (ii) an acquisition agreement, (iii) a limited guarantee, (iv) an equity commitment letter, (v) debt commitment letters provided by each of Barclays, Mizuho and RBC and (vi) an exclusivity agreement. The December 8 Proposal required that the Company execute the proposed exclusivity agreement by 5:00 p.m. ET on December 8, which provided for a period of exclusivity until 5:00 p.m. ET on December 11 with a view towards signing and announcing a transaction by no later than 5:00 p.m. ET on December 11. The December 8 Proposal was shared with the Board (other than Mr. Braunstein) on December 8, 2020 and, notwithstanding the request for exclusivity made by AGM and HEC, a Board meeting was scheduled for December 9, 2020. The December 8 Proposal also specified that HEC, which beneficially owns approximately 19.4% of the Company’s ordinary shares, intended to deliver a voting commitment for the transaction in connection with the execution of definitive transaction documents. The draft acquisition agreement provided for, among other things, (i) a prohibition on the Company’s ability to “shop” the company or respond to unsolicited offers, (ii) an unspecified termination fee, (iii) a reverse termination fee, (iv) no acceleration of unvested equity awards but instead, a determination of the cash-out value as of the closing to be paid to the award holder when the award would have otherwise vested, and (v) completion of a marketing period related to AGM’s debt financing as a closing condition.
On the morning of December 9, 2020, HEC filed an amendment to its Schedule 13D, disclosing, among other things, that AGM and HEC had submitted the December 8 Proposal to the Company and that HEC agreed to make a joint acquisition proposal exclusively with AGM. The Company also issued a press release on the morning of December 9, 2020, confirming receipt of the December 8 Proposal.
Later in the afternoon of December 9, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending, at which the December 8 Proposal was discussed. Goldman Sachs noted that, at the close of business, the Company’s share price closed at $34.11 per share and had hovered around $34.00 per share throughout the day. Goldman Sachs also informed the Board that it had received inbound calls from each of Party M and Party N, both financial sponsors, each of which expressed an interest in exploring a potential transaction involving the Company. Goldman Sachs reviewed with the Board the process that previously had been conducted to review strategic alternatives (and Goldman Sachs’ engagement with third parties) and confirmed that Party J had confirmed it would not be pursuing a transaction with the Company any further. After reviewing the terms of the December 8 Proposal, the Board determined that the $31.00 per share price was not sufficient to warrant granting exclusivity, but that the Company should continue to engage with AGM to improve the terms of AGM’s proposal, including with respect to price. Management then reviewed with the Board a revised long-range plan, reflecting not just the known impacts of the global COVID-19 pandemic, but also the potential impact of a prolonged second-wave of the global COVID-19 pandemic, a slower recovery, extended depression of cross-border travel, slower growth in U.S. same store sales and in managed services and the acceleration of a trend away from cash usage in the Company’s mature international markets. The Board also directed Goldman Sachs to continue to engage with Party M and Party N in order to determine if they were interested in a transaction with the Company and, if so, on what basis and timeline.
On December 9, 2020, Goldman Sachs delivered to the Board a relationship disclosure letter.
On December 10, 2020, the Board (other than Mr. Braunstein) reconvened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending. Goldman Sachs updated the Board on (i) the market’s reaction throughout the day following the filing of HEC’s Schedule 13D amendment, (ii) its conversations with Party M and Party N, in which Goldman Sachs relayed to them that the Board was willing to give them an opportunity to be in a position to submit indications of interest on an expedited basis and (iii) its receipt of a call from an additional interested party, which we refer to as “Party K”, indicating that the Company was discussed at Party K’s recent board of directors meeting. Each of Party M and Party N executed non-disclosure agreements and committed to work through the weekend with a view towards providing non-binding indications of interest by December 14, 2020. Mr. West also informed the Board that the chief executive officer of Party K called Mr. West to notify him that Party K intended to submit a non-binding indication of interest. Following discussion, the Board instructed Goldman Sachs to inform AGM that the Company would be willing to transact at $35.00 per share as soon as Monday, December 14.
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On the evening of December 10, 2020, Mr. Rossi received a call from the chairman of Party K, which Mr. Rossi returned that evening. During that call, the chairman of Party K indicated that Party K was interested in the Company, and an indication of interest would be forthcoming.
On the morning of December 11, 2020, representatives of Goldman Sachs delivered the message that the Company would be willing to transact at $35.00 per share as soon as Monday, December 14 to AGM and HEC. Following Goldman Sachs’ call with AGM and HEC, at the request of AGM and on behalf of the Company, Weil sent a list of material issues raised by the acquisition agreement to AGM, including that: (i) the agreement included a “no-talk” provision and did not include a customary “no shop” with a fiduciary out; (ii) the termination fee (payable to AGM upon termination of the agreement if the Board changed its recommendation or exercised its fiduciary out) should be no more than 1% of the equity value with no provision for expense reimbursement; (iii) the reverse termination fee should be 8% of equity value; (iv) all equity awards should accelerate and be paid out at closing of the transaction based on the transaction consideration; (v) the interim operating covenants would need to be revised to provide the Company with additional flexibility to run the business between signing and closing of the transaction; and (vi) references to the marketing period related to AGM’s debt financing in the closing conditions should be deleted.
On December 11, 2020, the Company held management presentations with Party M and Party N to discuss the business and financial performance of the Company. Following these meetings, Party M submitted additional diligence requests through Goldman Sachs. Goldman Sachs worked with the Company to provide responses to those requests. On December 12, 2020, Mr. Ferrera and senior members of management spoke by telephone to Party M to discuss the financial performance of the Company.
Later on December 11, 2020, Mr. West received a call from the chief executive officer of an additional interested party, which we refer to as “Party L”. Party L’s chief executive officer indicated that Party L was very interested in the Company and would be discussing that interest at their next board meeting.
On the afternoon of December 12, 2020, AGM delivered a revised proposal to Goldman Sachs with the following terms (which we refer to as the “December 12 Proposal”): (i) $34.00 per share; (ii) a “no-shop” provision with a fiduciary out; (iii) a termination fee of four percent (4%); (iv) a reverse termination fee of 5.75%; (v) 2020 equity grants would be paid out at closing of the transaction, with the remaining equity grants to be paid out in accordance with the existing vesting schedule (with no acceleration); (vi) a reasonable compromise on interim operating covenants; (vii) retaining the concept of a marketing period related to AGM’s debt financing in the closing conditions; and (viii) signing and announcing prior to the opening of trading of the Company’s common stock on Nasdaq on Monday, December 14.
Also during the afternoon of December 12, 2020, Party K submitted to Messrs. West and Rossi an indication of interest to acquire 100% of the outstanding shares of the Company for $34.50 per share in cash (which we refer to as the “Party K Proposal”). The Party K Proposal was subject to the satisfactory completion of due diligence, which it estimated would require four weeks to complete, and the execution of customary and appropriate definitive transaction documents. The Party K Proposal was expressly not conditioned on financing and indicated that Party K had retained financial and legal advisors to assist with a transaction. The Party K Proposal did not include any information on contemplated financing. At the request of management, representatives of Goldman Sachs discussed Party K’s ability to finance the Party K Proposal with Party K’s financial advisor.
In addition, in the afternoon of December 12, 2020, Party M provided a preliminary non-binding oral indication to acquire the Company for approximately $37.00 per share in cash and Party N provided a preliminary non-binding oral indication to acquire the Company for a range of $32.00 to $33.00 per share in cash.
On December 12, 2020, Mr. Rossi called Messrs. Kalsow-Ramos and Braunstein to inform them that the Company had received offers at greater than $34.00 per share, and AGM would have to increase its offer in order to be superior on economic terms.
Later in the evening of December 12, 2020, representatives of Weil sent to Paul Weiss revised drafts of the acquisition agreement and related definitive transaction documents reflecting the Company’s positions.
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In addition, in the evening of December 12, 2020, representatives of Paul Weiss sent to Cadwalader a draft of the HEC Undertaking.
On December 13, 2020, Mr. West received a call from Party L, who indicated that the Party L board of directors had discussed the Company, and Party L would be submitting an indication of interest at a price of $35.00 to $37.00 per share in consideration comprised of cash and stock.
Also on December 13, 2020, representatives of Paul Weiss and Cadwalader drafted the Contribution Agreement, and representatives of AGM and HEC discussed the terms of the Contribution Agreement and the HEC Undertaking. Representatives from Paul Weiss and Cadwalader exchanged drafts of the documents as discussions continued.
On the afternoon of December 13, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs and Weil attending, at which Goldman Sachs and Mr. West provided the Board with an update on the Party K Proposal as well as conversations they had with Party K and Party L over the past 48 hours. Mr. West confirmed that the chief executive officer of Party L provided an oral offer to acquire the Company for a range of $35.00 to $37.00 per share to be paid with a mix of cash and stock of Party L and confirmed that a written proposal with the foregoing terms would be delivered to the Company in the next day after Party L’s board of directors had convened. Goldman Sachs then reviewed with the Board its discussions with AGM regarding the December 12 Proposal. Representatives of Weil also reviewed with the Board the status of the acquisition agreement, including the following outstanding issues: (i) the treatment of unvested equity awards; (ii) restrictions on operation of the Company during the pendency of the transaction; (iii) delay of closing for a marketing period related to AGM’s debt financing; (iv) the Company’s obligation to pay AGM’s expenses in the event the acquisition agreement were terminated due to the Company Shareholders failing to approve the proposed acquisition; (v) a reverse termination fee of 5.75% of equity value; and (vi) a termination fee of four percent (4%) of equity value. Following discussion, including consideration of the proposals received over the past 48 hours, the Board determined that it was in the best interests of the Company and the Company Shareholders to direct Goldman Sachs to request that AGM increase its offer to $36.00 per share and the Company would work towards executing a transaction overnight. The Board also instructed management and Weil to ensure that the termination fee agreed as part of the transaction documents not be prohibitive such that it would inhibit third parties from making proposals after execution of the Acquisition Agreement, if such an agreement with BidCo was ultimately agreed.
Later in the evening of December 13, 2020, the Board (other than Mr. Braunstein) reconvened by telephone with members of senior management and representatives of Goldman Sachs and Weil attending, at which Goldman Sachs reported that, in response to the $36.00 per share counteroffer, AGM delivered its “best and final” proposal of $35.00 per share (which we refer to as the “December 13 Proposal”). Given the Board’s prior deliberations, the Board determined that it was in the best interests of the Company and the Company Shareholders to move forward with the December 13 Proposal and grant exclusivity to AGM for a period of 24 hours with a view towards finalizing definitive transaction documents on terms acceptable to the Board. Following this meeting, representatives of Weil sent to Paul Weiss a revised draft of the exclusivity agreement, providing that, among other things, the Company would work in good faith to negotiate a sale transaction on terms acceptable to the Board exclusively with AGM at a per share price equal to $35.00 until 11:59 p.m. ET on December 14, 2020. The Company and AGM executed the exclusivity agreement early in the morning of December 14, 2020, and the parties continued to work throughout the day to negotiate and finalize the definitive transaction documents.
On December 14, 2020, Goldman Sachs delivered to the Board an updated relationship disclosure letter.
In the evening of December 14, 2020, the Board (other than Mr. Braunstein) convened by videoconference with members of senior management and representatives of Goldman Sachs, Weil and Ashurst attending, at which, among other things, the Board discussed the progress made with AGM with respect to the transaction terms. Representatives of Goldman Sachs reviewed with the Board Goldman Sachs’ updated financial analysis of AGM’s proposal, as well as the process to date, including that Goldman Sachs contacted, in total, 21 parties, including nine financial sponsors and 12 strategic parties since May 2019. Representatives of Goldman Sachs also informed the Board that, just prior to the meeting, Party L
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submitted a written non-binding indication of interest to acquire the Company for $36.00 per share to be paid with a mix of cash and stock of Party L.
Representatives of Goldman Sachs then rendered to the Board Goldman Sachs’ oral opinion, subsequently confirmed in Goldman Sachs’ written opinion dated as of December 15, 2020, 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 in Goldman Sachs’ written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders. For additional information, see the section entitled “The Acquisition — Opinion of Goldman Sachs & Co. LLC” beginning on page 64 and Annex C to this proxy statement. Representatives of Weil and Ashurst then reviewed with the Board certain matters in connection with their evaluation of the proposed transaction, and reviewed the transaction process implemented by the Board, the key aspects of the Acquisition Agreement and the other definitive transaction documents, including, among others, the provisions concerning the Board’s ability to change its recommendation and under appropriate circumstances terminate the Acquisition Agreement to accept a superior proposal, and the anticipated timeline of events between signing and closing, should the Board determine to approve the Acquisition Agreement. Following the presentations by Goldman Sachs, Weil and Ashurst and discussion of the December 13 Proposal, the Board discussed the potential reasons for and against the Acquisition Agreement (see below under the heading “— Recommendation of the Board of Directors and Reasons for the Acquisition — Reasons for the Acquisition”) and then approved the Acquisition Agreement upon the terms and subject to the conditions set forth in the Acquisition Agreement, subject to conclusion of several open issues with respect to which the Board delegated the authority to management to finalize within acceptable parameters, determined that the Acquisition and the other transactions provided for in the Acquisition Agreement on the terms and conditions set forth in the Acquisition Agreement were advisable, and in the best interests of, the Company and its shareholders, determined that the Board reasonably believed that the Acquisition is fair to the Company Shareholders not affiliated with BidCo or HEC, and recommended that the Company’s Shareholders approve the Acquisition. In addition, AGM and HEC executed the Contribution Agreement and HEC delivered the HEC Undertaking.
On the morning of December 15, 2020, prior to the opening of trading of the Company’s ordinary shares on Nasdaq, the Company issued a press release announcing the execution of the Acquisition Agreement. Also on December 15, 2020, the Company filed with the SEC a Form 8-K that summarized the Acquisition Agreement and included the Acquisition Agreement as an exhibit thereto.
On December 31, 2020, the Company, through Goldman Sachs, received an unsolicited proposal from Party L, through Party L’s financial advisor, to acquire the Company for $39.00 per share in cash (which we refer to as the “December 31 Proposal”). The December 31 Proposal was not subject to financing and included a highly confident letter with respect to the debt financing contemplated by Party L in connection with a proposed transaction, as well as a mark-up of the Acquisition Agreement reflecting limited changes to the Acquisition Agreement. The December 31 Proposal also contemplated that Party L would need to complete confirmatory due diligence. Later that day, the December 31 Proposal was shared with the Board.
On January 1, 2021, representatives of Weil, on behalf of the Company, notified AGM of the December 31 Proposal in accordance with the terms of the Acquisition Agreement, including providing AGM and its legal counsel with a copy of the December 31 Proposal.
In the afternoon of January 2, 2021, the Board (other than Mr. Braunstein) convened by telephone with members of senior management and representatives of Goldman Sachs, Weil and Ashurst attending to discuss the December 31 Proposal. Following discussion (including consultation with representatives of Goldman Sachs, Weil and Ashurst), the Board determined in good faith that (i) the December 31 Proposal either constitutes a Superior Proposal or would reasonably be expected to result in a Superior Proposal and (ii) the failure to engage or participate in discussions or negotiations with Party L with respect to the December 31 Proposal and provide material non-public information concerning the Company or its subsidiaries in response to a request therefor by Party L would violate the Board’s fiduciary duties under applicable law. The Board authorized management of the Company to enter into a non-disclosure agreement with Party L in accordance with the terms of the Acquisition Agreement to facilitate discussions and
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negotiations with Party L and the provision of material non-public information to Party L in connection with the December 31 Proposal and in accordance with the terms of the Acquisition Agreement. The Board also confirmed its support of and recommendation in favor of the Acquisition and instructed management of the Company and the Company’s advisors to continue to perform all of the Company’s obligations under the Acquisition Agreement.
On January 4, 2021, the Company entered into a non-disclosure agreement with Party L in connection with the December 31 Proposal and in accordance with the terms of the Acquisition Agreement.
Recommendation of the Board
After careful consideration, on December 14, 2020, the Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Accordingly, the Board recommends that the Company Shareholders vote “FOR” the Court Scheme Proposal, “FOR” the Articles Amendment Proposal and “FOR” the Advisory Transaction-Related Compensation Proposal. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
Reasons for Recommending the Approval of the Acquisition; Fairness of the Acquisition
At a meeting held on December 14, 2020, the Board, unanimously of those voting, (i) determined that it is in the best interests of the Company and the Company Shareholders for the Company to enter into the Acquisition Agreement and consummate the transactions contemplated thereby (including the Acquisition) in accordance with the Companies Act, (ii) approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby (including the Acquisition) and (iii) determined to recommend the Acquisition to the Company Shareholders. The Board also determined that the Acquisition Agreement and the transactions contemplated thereby (including the Acquisition) were fair to, and in the best interests of, the Company Shareholders not affiliated with BidCo or HEC. The Board recommends that the Company Shareholders approve the Acquisition. Mr. Braunstein, director of the Company and the Managing Partner and Founder of HEC, did not participate in the Board’s deliberations or determinations in respect of the Acquisition.
In arriving at this determination and recommendation and in evaluating the fairness and advisability of the Acquisition Agreement to the Company Shareholders not affiliated with BidCo or HEC, the Board (i) reviewed and discussed a significant amount of information with respect to the Company’s financial condition, results of operations, businesses, competitive position and business strategy, on a historical and prospective basis, as well as current industry, economic and market conditions and trends (including the substantial uncertainty as a result of the global COVID-19 pandemic) and strategic alternatives other than the Acquisition, (ii) consulted with the Company’s management, legal advisors and financial advisor and (iii) considered the involvement of HEC, an approximately 19.4% shareholder of the Company, in its joint proposal with the Apollo Funds to acquire the Company. The following are some of the significant factors that were considered by the Board and supported its decision in approving the Acquisition Agreement:
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Consideration. The Board considered that the Per Share Consideration represented:
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a 60% premium over the Company’s volume-weighted average share price over the 30 trading days prior to December 8, 2020, the day prior to the announcement of HEC’s disclosure of its joint proposal with AGM to acquire the Company;
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a 35% premium to the Company’s closing share price on December 8, 2020; and
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a price per Share that was unlikely to be achieved on a standalone basis in the near future given the current and prospective outlook for the Company’s industry.
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Prospects of the Company. The Board considered the Company’s standalone business plan, financial projections and the risks associated with the Company’s ability to meet such projections and to execute on its strategic plan.
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Potential Strategic Alternatives. The Board considered (1) the possible alternatives to the acquisition by BidCo, including the possibility of continuing to operate the Company as an independent publicly-traded entity and the desirability and perceived risks of that alternative and the possibility of alternative offers to acquire the Company, (2) the potential benefits to the Company Shareholders of these alternatives and the timing and likelihood of effecting such alternatives and (3) the Company’s assessment that none of these alternatives was reasonably likely to present superior opportunities for the Company to create greater value for the Company Shareholders, taking into account risks of execution as well as business, competitive, financial, industry, market and regulatory risks.
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Cash Consideration; Certainty of Value. The Board considered the fact that the Acquisition consideration is a fixed cash amount providing the Company shareholders with certainty of value and liquidity immediately upon the consummation of the Acquisition, in comparison to the risks and uncertainty that would be inherent in remaining a standalone company or pursuing a transaction in which all or a portion of the consideration may be payable in stock.
•
Goldman Sachs’ Fairness Opinion and Related Analyses. The Board considered the oral opinion of Goldman Sachs, subsequently confirmed in Goldman Sachs’ written opinion dated as of December 15, 2020, 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 in Goldman Sachs’ written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders, as more fully described below in the section “The Acquisition — Opinion of Goldman Sachs & Co. LLC” beginning on page 64 and Annex C to this proxy statement.
•
Potentially Interested Counterparties. The Board considered that, since September 2020, representatives of Goldman Sachs had communicated with thirteen potential acquirors, and that, during the course of the Company’s strategic review process, the Company had received indications of interest from three parties in addition to BidCo. The Board also considered the fact that, on December 9, 2020, HEC filed an amendment to its Schedule 13D, publicly disclosing, among other things, that the Apollo Funds and HEC had submitted a joint acquisition proposal to acquire the Company for $31.00 per Share in cash. The Board also considered the fact that no other counterparty had submitted a proposal that was more beneficial to Company Shareholders and had a level of certainty that was better than BidCo’s offer.
•
Negotiations with BidCo and the Acquisition Agreement. The Board considered the general terms and conditions of the Acquisition Agreement, including:
•
that the price of $35.00 per Share was stated by BidCo to be its best and final offer;
•
that the debt and equity commitments provided in favor of BidCo were for an aggregate amount sufficient to cover the aggregate Consideration and refinancing of the Company’s existing indebtedness, and that the Company is named a third party beneficiary of the equity commitment letter;
•
the ability of the parties to consummate the Acquisition, including the fact that BidCo’s obligations to complete the Acquisition are not conditioned upon the receipt of financing;
•
the Company’s ability, under certain circumstances, to furnish information to and conduct negotiations with third parties regarding unsolicited alternative acquisition proposals;
•
the Company’s ability, under certain circumstances, to change its recommendation that shareholders vote to approve the Acquisition in the event that the Company receives a superior proposal or certain other intervening events occur and to terminate the Acquisition in exchange for payment to BidCo of a termination fee equal to $32,600,000 in order to accept a superior proposal;
•
BidCo’s obligation to pay the Company a Closing failure payment of $93,800,000 and, in addition, reimbursement for any and all reasonable and documented out-of-pocket fees and expenses up to a maximum aggregate amount of $500,000 utilized to enforce such payment, if the Acquisition Agreement is terminated under certain circumstances;
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•
the Company’s general entitlement to specific performance to prevent breaches of the Acquisition Agreement;
•
the Company’s entitlement to specific performance to cause the equity financing contemplated by the equity commitment letters to be funded, subject to certain conditions;
•
that the Acquisition is subject to the approval of at least 75% in value of the Company Shareholders who are on the register of members of the Company (or the relevant class or classes thereof) at the Voting Record Time, present and voting (and who are entitled to vote), whether in person or by proxy, at the Court Meeting;
•
the fact that certain investors in BidCo provided the limited guarantee in favor of the Company in connection with the BidCo termination payment and reimbursement of certain Company expenses; and
•
the Board’s view that the Acquisition Agreement was the product of arms’-length negotiation and contained customary terms and conditions.
•
Irrevocable Undertaking of HEC. The Board considered the fact that HEC, a shareholder of the Company (representing approximately 19.4% of the outstanding Shares at the time of execution of the HEC Undertaking), signed the HEC Undertaking, under which such shareholder agreed to vote for the Acquisition so long as the Acquisition Agreement has not been terminated, regardless of whether the Board makes a Change in Recommendation.
•
Timing of Completion. The Board considered that the consummation of the transactions contemplated by the Acquisition Agreement could be achieved in a reasonable timeframe.
In the course of its deliberations, the Board also considered certain risks and other potentially negative factors concerning the transactions contemplated by the Acquisition Agreement and the Acquisition, including:
•
the fact that, following the Acquisition, the Company will no longer exist as an independent public company and the Company’s existing shareholders (other than HEC) will not participate in the Company’s or BidCo’s future earnings or growth;
•
the fact that the Acquisition Agreement precludes the Company from soliciting alternative proposals;
•
the fact that the Acquisition might not be consummated in a timely manner, or at all, as a result of a failure to satisfy certain conditions, including the approval by the Company’s shareholders;
•
the time it would take to consummate the Acquisition, and the restrictions on the conduct of the Company’s business prior to the consummation of the Acquisition, which may delay or prevent the Company from undertaking business opportunities that may arise or any other action that it might otherwise take with respect to the operations of the Company;
•
the risks and contingencies related to the announcement and pendency of the transactions contemplated by the Acquisition Agreement, including the impact on the Company’s employees and its relationships with existing and prospective customers, suppliers and other third parties;
•
the fact that, for U.S. federal income tax purposes, the Acquisition consideration will be taxable to the Company’s shareholders who are entitled to receive such consideration;
•
the significant costs involved in connection with entering into and completing the Acquisition and the substantial time and effort of management required to complete the transactions contemplated by the Acquisition Agreement, which may disrupt the Company’s business operations;
•
the requirement that the Company pay BidCo a termination fee equal to $32,600,000 or $16,300,000 if the Acquisition Agreement is terminated under certain circumstances;
•
the risk that, while the Acquisition transaction is expected to be completed, there can be no assurance that all conditions to the parties’ obligations to complete the Acquisition transaction will be satisfied, and as a result, it is possible that the Acquisition transaction may not be completed even if approved by the Company Shareholders;
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•
the fact that the Company’s directors and executive officers may receive certain benefits that are different from, and in addition to, those of the Company’s Shareholders (See “The Acquisition — Interests of Directors and Executive Officers in the Acquisition”); and
•
the other risks described in and incorporated by reference in this proxy statement, see “Risk Factors” in our annual report on Form 10-K for the fiscal year ended December 31, 2019 incorporated by reference herein and “Cautionary Information Regarding Forward-Looking Statements.”
The foregoing discussion of the information and factors considered by the Board is not intended to be exhaustive, but includes the material factors considered by the Board. In view of the wide variety of factors considered in connection with its evaluation of the Acquisition and the complexity of these matters, the Board did not find 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. The Board did not undertake 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 Board based its recommendation on the totality of the information presented, including the factors described above.
Position of the HEC Filing Persons as to the Fairness of the Acquisition
Under SEC rules governing “going-private” transactions, Hudson Executive Capital LP, HEC Management GP LLC, HEC Master Fund LP, HEC SPV I LP and Douglas Braunstein (which we refer to as, collectively, the “HEC Filing Persons”) are required to express their belief as to the fairness of the Acquisition to the Company’s unaffiliated shareholders. The HEC Filing Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the HEC Filing Persons as to the fairness of the Acquisition are not intended and should be not be construed as a recommendation to any Company Shareholder regarding how to vote on the proposals in this proxy statement. The HEC Filing Persons have interests in the Acquisition that are different from, and/or in addition to, those of the unaffiliated shareholders of the Company by virtue of their continuing interests in the indirect parent of BidCo after the completion of the Acquisition.
The HEC Filing Persons have not performed, or engaged a financial advisor to perform, any valuation or other analysis for the purposes of assessing the fairness of the Acquisition to the Company’s unaffiliated shareholders. The Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition. Douglas Braunstein, a member of the Board and Managing Partner and Founder of the HEC, did not participate in any discussions or deliberations of the Board with respect to the Acquisition, the review of strategic alternatives and related matters and recused himself from approvals in connection with the Acquisition. The other HEC Filing Persons did not otherwise participate in the deliberations of the Board in connection with the Acquisition. The HEC Filing Persons do not believe they have or had any fiduciary duty to the Company or its shareholders, including with respect to the Acquisition Agreement and its terms and conditions, except for Mr. Braunstein in his capacity as a director of the Company.
The HEC Filing Persons believe that the Acquisition is substantively and procedurally fair to the Company’s unaffiliated shareholders based on the following factors, among others:
•
the Per Share Consideration represented a 60% premium over the Company’s volume-weighted average share price over the 30 trading days prior to December 8, 2020, and a 35% premium to the Company’s closing share price on December 8, 2020, the day prior to HEC’s disclosure of its joint proposal with BidCo to acquire the Company;
•
notwithstanding that the opinion of Goldman Sachs was provided solely for the information and assistance of the Board and the HEC Filing Persons are not entitled to, nor did they, rely on such
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opinion, the Board received the opinion, dated December 15, 2020, of Goldman Sachs 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 in Goldman Sachs’ written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders, as more fully described below in the section “The Acquisition — Opinion of Goldman Sachs & Co. LLC” beginning on page 64 and Annex C to this proxy statement;
•
the belief that the value to the Company’s unaffiliated shareholders continuing as an independent public company would not be as great as the Per Share Consideration, due to the public market’s emphasis on short-term performance, and the potential risks and uncertainties associated with the near-term prospects of the Company;
•
the fact that the Per Share Consideration is a fixed cash amount providing the Company shareholders with certainty of value and liquidity immediately upon the consummation of the Acquisition, in comparison to the risks and uncertainty that would be inherent in remaining a standalone company or pursuing a transaction in which all or a portion of the consideration may be payable in stock, which include, among others, decline in stock prices resulting from loss of investor confidence or analyst recommendations and expectations, volatility as a result of developments beyond the Company’s control, including the COVID-19 pandemic, and exposure to market, economic and other risks arising from owning an equity interest in a public company;
•
none of the HEC Filing Persons or their affiliates, or BidCo, participated in the deliberative process of, or the conclusions reached by, the Board;
•
the Board retained independent, internationally recognized financial and legal advisors, each of which has extensive experience in transactions similar to the Acquisition;
•
the Per Share Consideration was AGM’s best and final offer, and the Per Share Consideration and other terms and conditions of the Acquisition Agreement were the product of arms’-length negotiation;
•
the debt and equity commitments provided in favor of BidCo were sufficient to cover the Acquisition consideration and refinancing of the Company’s existing indebtedness, the Company is named a third-party beneficiary of the equity commitment letter, and the completion of the Acquisition is not conditioned upon BidCo’s receipt of the debt financing;
•
the Company’s ability, under certain circumstances, to furnish information to and conduct negotiations with third parties regarding unsolicited alternative acquisition proposals;
•
the Company’s ability, under certain circumstances, to change its recommendation that Company Shareholders vote to approve the Acquisition in the event that the Company receives a superior proposal or certain other intervening events occur and to terminate the Acquisition in exchange for payment to BidCo of a termination fee equal to $32,600,000 in order to accept a superior proposal;
•
the fact that (i) BidCo will be required to pay to the Company a reverse termination fee of $93,800,000 if the Acquisition Agreement is terminated under certain circumstances, (ii) the Company will not need to prove damages as a condition to receiving such reverse termination fee and (iii) the Apollo Funds have guaranteed BidCo’s obligation to pay such reverse termination fee;
•
the recognition by the Board that it had no obligation to recommend the Acquisition;
•
the Board, unanimously of those directors voting, determined that it is in the best interests of the Company and the Company Shareholders to enter into the Acquisition Agreement and the transactions contemplated thereby, including the Acquisition, in accordance with the Companies Act, approved the execution, delivery and performance of the Acquisition Agreement and the consummation of the transactions contemplated thereby, including the Acquisition, and determined to recommend that the Company Shareholders vote in favor of the approval of the Acquisition; and
•
the Acquisition is structured such that it must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Shares at the Voting Record Time, in each case, present and voting (and entitled to vote).
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In reaching their position as to the fairness of the Acquisition to the unaffiliated Company Shareholders, the HEC Filing Persons also considered certain risks and other potentially negative factors concerning the transactions contemplated by the Acquisition Agreement and the Acquisition, including:
•
the risks and contingencies related to the announcement and pendency of the transactions contemplated by the Acquisition Agreement, including the impact on the Company’s employees and its relationships with existing and prospective customers, suppliers and other third parties;
•
the time it would take to consummate the Acquisition, and the restrictions on the conduct of the Company’s business prior to the consummation of the Acquisition, which may delay or prevent the Company from undertaking business opportunities that may arise or any other action that it might otherwise take with respect to the operations of the Company;
•
it is possible that the Acquisition and related integration process could result in the loss of key employees of the Company, the disruption of the Company’s on-going business and the loss of the Company’s customers and suppliers;
•
the fact that the Acquisition Agreement precludes the Company from soliciting alternative proposals;
•
the fact that an all cash transaction would generally be taxable to the Company Shareholders that are U.S. holders for U.S. federal income tax purposes;
•
the fact that certain of the Company’s directors and executive officers have interests in the transaction that are different from, or in addition to, those of the Company Shareholders (other than HEC), see “Interests of the Company’s Directors and Executive Officers in the Acquisition” beginning on page 71;
•
the fact that, following the Acquisition, the Company will no longer exist as an independent public company and the Company’s other existing shareholders will not participate in the Company’s or BidCo’s future earnings or growth;
•
the requirement that the Company pay BidCo a termination fee equal to $32,600,000 or $16,300,000 if the Acquisition Agreement is terminated under certain circumstances;
•
the fact that the Company’s remedy in the event of breach of the Acquisition Agreement by BidCo could be limited to receipt of the reverse termination fee of $93,800,000, and under certain circumstances, the Company would not be entitled to any reverse termination fee if the Acquisition Agreement was terminated;
•
the fact that the Company will be required, if the Acquisition is not completed, to pay its own expenses associated with the Acquisition Agreement, the Acquisition and the other transactions contemplated by the Acquisition Agreement; and
•
the risk that, while the Acquisition transaction is expected to be completed, there can be no assurance that all conditions to the parties’ obligations to complete the Acquisition transaction will be satisfied, and as a result, it is possible that the Acquisition transaction may not be completed even if approved by the Company Shareholders.
The HEC Filing Persons did not seek to establish a pre-Acquisition going concern value for the Shares to determine the fairness of the Per Share Consideration to the Company’s unaffiliated shareholders because following the Acquisition the Company will have a different capital structure. The HEC Filing Persons did not consider the Company’s net book value, which is an accounting concept, to be a factor in determining the substantive fairness of the transaction to the Company’s unaffiliated shareholders because they believed that net book value is not a material indicator of the value of the Company’s equity but rather an indicator of historical costs. The HEC Filing Persons also did not consider the liquidation value of the Company’s assets as indicative of the Company’s value primarily because of their belief that the liquidation value would be significantly lower than the Company’s value as an ongoing business and that, due to the fact that the Company is being sold as an ongoing business, the liquidation value is irrelevant to a determination as to whether the Acquisition is fair to the Company’s unaffiliated shareholders. In making its determination as to the fairness of the Acquisition to the Company’s unaffiliated shareholders, the HEC Filing Persons were not aware of any firm offer by any other person during the prior two years for a merger or consolidation
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of the Company with another company, the sale or transfer of all or substantially all of the Company’s assets or a purchase of the Company’s securities that would enable such person to exercise control of the Company.
The foregoing discussion of the information and factors considered by the HEC Filing Persons is not intended to be exhaustive, but includes the material factors considered by the HEC Filing Persons. In view of the wide variety of factors considered in connection with its evaluation of the Acquisition and the complexity of these matters, the HEC Filing Persons did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching their position as to the fairness of the Acquisition Agreement and the Acquisition. The HEC Filing Persons did not undertake 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 their ultimate determination. The HEC Filing Persons based their recommendation on the totality of the information presented, including the factors described above. The HEC Filing Persons believe that these factors provide a reasonable basis upon which to form their belief that the Acquisition is fair to the unaffiliated shareholders of the Company. This belief should not, however, be construed as a recommendation to any of the Company Shareholders to approve the proposals in this proxy statement. The HEC Filing Persons do not make any recommendation regarding how Company Shareholders should vote with respect to the proposals in this proxy statement.
Position of the Apollo Filing Persons as to the Fairness of the Acquisition
We refer to AGM, the Apollo Funds and BidCo collectively as the “Apollo Filing Persons.” The rules of the SEC governing “going-private” transactions require the Apollo Filing Persons, which may be deemed affiliates of the Company for purposes of the Acquisition, to express their belief as to the fairness of the Acquisition to the Company Shareholders (other than HEC). The Apollo Filing Persons are making the statements included in this section of this proxy statement solely for the purposes of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The Apollo Filing Persons’ views as to fairness of the Acquisition should not be construed as a recommendation to any Company Shareholder as to whether such Company Shareholder should vote his, her or its Shares in favor of the Acquisition.
The Apollo Filing Persons attempted to negotiate the terms of a transaction that would be most favorable to them, and not to the Company Shareholders, and, accordingly, did not negotiate the Acquisition Agreement with a goal of obtaining terms that were fair to the Company Shareholders. None of the Apollo Filing Persons believes that it has or had any fiduciary duty to the Company Shareholders, including with respect to the Acquisition and its terms. The Company Shareholders (other than HEC) were, as described elsewhere in this proxy statement, represented by the Board that negotiated with BidCo on their behalf, with the assistance of the Company’s legal and financial advisors.
The Apollo Filing Persons did not participate in the deliberations of the Board or receive advice from the Company, the Board or their respective legal or financial advisors relating to the fairness of the Acquisition or rely on the Board’s conclusions and analyses as to the fairness of the Acquisition or the Per Share Consideration. The Apollo Filing Persons did not receive an opinion with respect to the fairness of the Acquisition. The Apollo Filing Persons believe, however, that the Acquisition is substantively fair to the Company Shareholders based on the following factors, which are not listed in any relative order of importance:
•
the Per Share Consideration represents a 60% premium over the Company’s volume-weighted average share price over the 30 trading days prior to December 8, 2020, the day prior to the announcement of HEC’s disclosure of its joint proposal with AGM to acquire the Company;
•
the Per Share Consideration represents a 35% premium to the Company’s closing share price on December 8, 2020;
•
the Per Share Consideration represents a price per Share that was unlikely to be achieved on a standalone basis in the near future given the current and prospective outlook for the Company’s industry;
•
notwithstanding that the opinion of Goldman Sachs was provided for the information and assistance of the Board in connection with its consideration of the Acquisition and BidCo is not entitled to, nor did it, rely on such opinion, Goldman Sachs rendered to the Board its oral opinion, subsequently
57
confirmed in its written opinion dated December 15, 2020, 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 in Goldman Sachs written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders, as more fully described in the section “The Acquisition — Opinion of Goldman Sachs & Co. LLC” beginning on page 64 and Annex C to this proxy statement.
•
the Board determined that the Acquisition Agreement and the Acquisition are fair to and in the best interests of the Company Shareholders (other than HEC);
•
the Acquisition is structured such that it must be approved by a majority in number of the Shareholders of Record as of the Voting Record Time representing 75% or more in value of the Shares at the Voting Record Time, in each case, present and voting (and entitled to vote);
•
the Company has the ability, under certain circumstances, to seek specific performance to prevent breaches of the Acquisition Agreement and to specifically enforce the terms of the Acquisition Agreement;
•
the fact that (i) BidCo will be required to pay to the Company a reverse termination fee of $93,800,000 if the Acquisition Agreement is terminated under certain circumstances, (ii) the Company will not need to prove damages as a condition to receiving such reverse termination fee and (iii) the Apollo Funds have guaranteed BidCo’s obligation to pay such reverse termination fee;
•
the Acquisition will provide consideration to the Company Shareholders (other than HEC) entirely in cash, thus eliminating any uncertainty in valuing the Acquisition consideration and, as a result, no longer being exposed to the various risks and uncertainties related to continued ownership of the Shares, which include, among others, the following:
•
exposure to market, economic and other risks that arise from owning an equity interest in a public company;
•
a potential decline in market prices resulting from loss of investor confidence;
•
fluctuations in the value of the Shares based on general economic, business and industry conditions, both in the U.S. and internationally;
•
volatility in the price of the Shares as a result of developments beyond the Company’s control, including government or regulatory action, the global COVID-19 pandemic, changes in tax laws, interest rates and general market conditions; and
•
impacts to stock price and trading volume from analyst recommendations and expectations.
The Apollo Filing Persons believe that the Acquisition is procedurally fair to the Company Shareholders (other than HEC) based on the following factors, which are not listed in any relative order of importance:
•
the Board retained independent, internationally recognized financial and legal advisors, each of which has extensive experience in transactions similar to the Acquisition;
•
the terms and conditions of the Acquisition Agreement were the product of extensive negotiations between the Board and its advisors, on the one hand, and BidCo and its advisors, on the other hand;
•
the recognition by the Board that it had no obligation to recommend the Acquisition;
•
BidCo and HEC did not participate in or have any influence over the deliberative process of, or the conclusions reached by, the Board or the negotiating positions of the Board; and
•
the Company’s ability, subject to compliance with the terms and conditions of the Acquisition Agreement, to terminate the Acquisition Agreement prior to the receipt of shareholder approval in order to accept an alternative transaction proposed by a third party that is a superior proposal.
In considering the fairness of the Acquisition to the Company Shareholders (other than HEC), the Apollo Filing Persons also considered the following risks and other countervailing factors related to the Acquisition Agreement and the Acquisition:
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•
it is possible that the Acquisition and related integration process could result in the loss of key employees of the Company, the disruption of the Company’s on-going business and the loss of the Company’s customers and suppliers;
•
the risk that the Acquisition may not be completed despite the Apollo Filing Persons’ efforts due to the requisite Company Shareholder approval not being obtained or the Debt Financing described under “Financing of the Acquisition” not being obtained as BidCo on its own does not possess sufficient funds to complete the Acquisition;
•
the risk that all of the conditions to the parties’ obligations to effect the Acquisition will not be satisfied prior to the termination date set forth in the Acquisition Agreement;
•
the fact that Company Shareholders (other than HEC) will not have any equity in the Company following the Acquisition, meaning that the Company Shareholders (other than HEC) will cease to participate in the Company’s future earnings or growth, or to benefit from any increases in the value of the equity in the Company;
•
the restrictions on the conduct of the Company’s business prior to the completion of the Acquisition, which may delay or prevent the Company from pursuing business opportunities that may arise or taking any other action it would otherwise take with respect to its business operations;
•
the fact that the Company could be required to pay a termination fee of $32,600,000 or $16,300,000 if the Acquisition Agreement was terminated under certain circumstances;
•
the fact that the Company will be required, if the Acquisition is not completed, to pay its own expenses associated with the Acquisition Agreement, the Acquisition and the other transactions contemplated by the Acquisition Agreement;
•
the fact that (i) BidCo is a newly formed limited company with essentially no assets other than the equity commitments of the Apollo Funds and the rollover commitments of HEC; (ii) the Company’s remedy in the event of breach of the Acquisition Agreement by BidCo could be limited to receipt of the reverse termination fee of $93,800,000, and (iii) under certain circumstances, the Company would not be entitled to any reverse termination fee if the Acquisition Agreement was terminated;
•
the Apollo Filing Persons also understand that their and their affiliates’ respective directors, officers, and other employees will have expended considerable time and effort to negotiate, implement and complete the Acquisition, and their time may have been diverted from other important business opportunities and operational matters while working to implement the Acquisition;
•
the fact that HEC entered into the HEC Undertaking;
•
the fact that the Apollo Filing Persons have incurred and will continue to incur significant transaction costs and expenses in connection with the Acquisition, regardless of whether the Acquisition is completed;
•
the fact that an all cash transaction would generally be taxable to the Company Shareholders that are U.S. holders for U.S. federal income tax purposes;
•
the fact that (i) certain of the Company’s directors and executive officers and (ii) HEC have interests in the transaction that are different from, or in addition to, those of the Company Shareholders (other than HEC), see “Interests of the Company’s Directors and Executive Officers in the Acquisition” beginning on page 71; and
•
the risks and costs to the Company if the Acquisition is not consummated, including uncertainty about the effect of the proposed Acquisition on the Company’s employees, customers, suppliers and other parties, which may impair the Company’s ability to attract, retain and motivate key personnel, and could cause customers, suppliers and others to seek to change existing business relationships with the Company.
The Apollo Filing Persons did not seek to establish a pre-Acquisition going concern value for the Shares to determine the fairness of the Per Share Consideration to the Company’s Shareholders (other than HEC) because following the Acquisition the Company will have a different capital structure. The Apollo
59
Filing Persons did not consider the Company’s net book value, which is an accounting concept, to be a factor in determining the substantive fairness of the transaction to the Company’s unaffiliated shareholders because they believed that net book value is not a material indicator of the value of the Company’s equity but rather an indicator of historical costs. In its consideration of the fairness of the proposed Acquisition, the Apollo Filing Persons did not find it practicable to, and did not, appraise the assets of the Company to determine the liquidation value for the Company Shareholders because: (i) of the Apollo Filing Persons’ belief that liquidation sales generally result in proceeds substantially less than the sales of a going concern; (ii) of the impracticability of determining a liquidation value given the significant execution risk involved in any breakup; (iii) the Apollo Filing Persons considered the Company to be a viable going concern; and (iv) the Company will continue to operate its business following the Acquisition.
The foregoing discussion of the information and factors considered by the Apollo Filing Persons in connection with the fairness of the Acquisition is not intended to be exhaustive, but is believed to include all material factors considered by the Apollo Filing Persons. The Apollo Filing Persons did not find it practicable to, and it did not, quantify or otherwise attach relative weights to the foregoing factors in reaching its conclusion as to the fairness of the Acquisition. Rather, the fairness determinations were made by the Apollo Filing Persons after considering all of the foregoing factors as a whole. The Apollo Filing Persons believe these factors provide a reasonable basis upon which to form its belief that the Acquisition is fair to the Company Shareholders. This belief should not, however, be construed as a recommendation as to whether any Company Shareholder should vote his, her or its Shares in favor of the proposal to adopt the Acquisition Agreement. The Apollo Filing Persons do not make any recommendation as to whether Company Shareholders (other than HEC) should vote their Shares in favor of the Acquisition.
Purposes and Reasons of the HEC Filing Persons for the Acquisition
Under the SEC rules governing “going-private” transactions, the HEC Filing Persons are required to express their purposes and reasons for the Acquisition to the Company’s unaffiliated shareholders. The HEC Filing Persons are making the statements in this section solely for the purposes of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the HEC Filing Persons should not be construed as a recommendation to any of the Company Shareholders to approve the proposals in this proxy statement. The HEC Filing Persons do not make any recommendation regarding how Company Shareholders should vote with respect to the proposals in this proxy statement.
The HEC Filing Persons believe that it is in the best interests of the Company to operate as a privately-held entity. The HEC Filing Persons believe that, as a privately-held entity, the Company will have greater operational flexibility to pursue alternatives than it would have as a public company, and management will be able to concentrate on long-term growth, reducing the focus on the quarter-to-quarter performance often emphasized by the public equity market’s valuation of the Shares. The HEC Filing Persons also believe that the Acquisition will provide the Company with flexibility to pursue transactions with a risk profile that may be unacceptable to public shareholders, and that these transactions can be more effectively executed as a private company.
If the Acquisition is completed, the Company will become a wholly-owned subsidiary of BidCo, the Shares will no longer be traded on Nasdaq, and the Shares will cease to be registered under the Exchange Act. The HEC Filing Persons will receive benefits and be subject to obligations in connection with the Acquisition that are different from, or in addition to, the benefits and obligations of the Company’s unaffiliated shareholders generally. The incremental benefits will include the right of the HEC Filing Persons to make an equity investment in the indirect parent of BidCo in exchange for their contribution of Shares and/or cash equity financing. A detriment to the HEC Filing Persons is that their equity interests in the indirect parent of BidCo will not be listed on a securities exchange and will be highly illiquid without an active public trading market for such equity interests. The HEC Filing Persons’ equity interests in the indirect parent of BidCo will also be subject to agreements restricting the ability of certain of the HEC Filing Persons from selling or otherwise transferring such equity interests. Although the HEC Filing Persons believe that there will be significant opportunities associated with its contribution to BidCo of the Excluded Shares, the HEC Filing Persons recognize that there are also substantial risks, and that such opportunities may not ever be fully realized. For certain risks and potential negative factors considered by the HEC Filing Persons in the course of reaching their determination to pursue the Acquisition, see “Position of the HEC Filing Persons as to the Fairness of the Acquisition” on page 53.
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For the HEC Filing Persons, the purpose of the Acquisition is to effectuate the transactions contemplated by the Acquisition Agreement and the Contribution Agreement, which will allow the HEC Filing Persons to own equity interests in the indirect parent of Bidco and to bear the rewards and risks of such ownership after the Acquisition is completed and the Shares cease to be publicly traded. The HEC Filing Persons have undertaken to pursue the transaction at this time in light of the opportunities they perceive to strengthen the Company’s competitive position, strategy and financial performance under a new form of ownership. The HEC Filing Persons believe that structuring the transaction in such manner is preferable to other alternative transaction structures because: (i) it will enable BidCo to acquire all of the outstanding shares of the Company at the same time, (ii) it will allow the Company to cease to be a publicly-registered and reporting company, (iii) it represents an opportunity for the Company’s unaffiliated shareholders to immediately realize the value of their investment in the Company and (iv) it allows the HEC Filing Persons to continue to own indirect equity interests in the Company after the Acquisition,and to bear the rewards and risks of such ownership after the Acquisition. The HEC Filing Persons did not consider other alternative transaction structures or other alternative means to accomplish the purposes set forth above because no other alternatives would enable them to continue their investments in the Company and allow the Company to cease to be a publicly-registered and reporting company.
Purposes and Reasons of the Apollo Filing Persons for the Acquisition
Under the SEC rules governing “going-private” transactions, the Apollo Filing Persons may be deemed to be affiliates of the Company and, therefore, are required to express their purpose and reason for the Acquisition to the Company’s “unaffiliated security holders,” as such term is defined under Rule 13e-3 of the Exchange Act. The Apollo Filing Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the Apollo Filing Persons should not be construed as a recommendation to any Company Shareholder as to whether such Company Shareholder should vote his, her or its Shares in favor of the Acquisition.
The Apollo Filing Persons attempted to negotiate with the Board the terms of a transaction that would be most favorable to the Apollo Filing Persons and not necessarily to the Company Shareholders (other than HEC), and, accordingly, did not negotiate the Acquisition Agreement with a goal of obtaining terms that were fair to such Company Shareholders.
For the Apollo Filing Persons, the purpose of the Acquisition is to enable BidCo to acquire all outstanding equity of the Company (other than certain equity owned by HEC), so that BidCo can acquire control of the Company and operate it as a privately held company, which in turn will allow BidCo to bear the rewards and risk of the ownership of the Company after the Shares cease to be publicly traded.
The Apollo Filing Persons considered certain risks and potential negative factors associated in the course of reaching its determination to pursue the Acquisition, see “Position of the Apollo Filing Persons as to the Fairness of the Acquisition” on page 56.
The Apollo Filing Persons determined to undertake the Acquisition at this time based on their belief that with the Company’s shares privately held, the Company will have greater operating flexibility and will be able to allow its management to more effectively concentrate on long-term growth and reduce the short-term focus on quarter-to-quarter performance that is emphasized by the public equity market’s valuation of the Shares. Accordingly, the Apollo Filing Persons believe that the business of the Company can be conducted more effectively as a private company following the Acquisition. The Apollo Filing Persons’ plans for the Company following the Acquisition are to operate the Company substantially in the manner it operates today. As a result of the Company’s shares being privately held, the Company will also enjoy certain additional efficiencies, such as a reduction of the time devoted by its management and certain other employees to investor relations activities that a company that has publicly traded common stock would typically undertake. Although the Apollo Filing Persons believe that there will be significant opportunities associated with the Acquisition, the Apollo Filing Persons realize that there are also substantial risks (including the risks and uncertainties relating to the prospects of the Company and as described in the prior paragraph) and that such opportunities may not ever be fully realized.
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Certain Financial Projections Utilized in Connection with the Acquisition
In early October 2020, after receipt of the September 21 Letter from AGM and HEC, management of the Company determined that in connection with a strategic alternative review process, an update of its existing long-range plan would be required for review by the Board. Although there had been frequent engagement between the Board and management in relation to the ongoing business impacts of the global COVID-19 pandemic, the Company’s long-range plan had not previously been updated as the Company focused on mitigating the impact of the global COVID-19 pandemic to the business. As a result, the Company’s management prepared and presented to the Board, on October 7, 2020, certain non-public, unaudited prospective financial information for the fiscal years 2020 through 2025, which reflected the known impacts of the global COVID-19 pandemic on the Company to date and the industry in which it operates, for consideration in connection with discussions with AGM and HEC regarding a potential transaction. In addition to the known impacts of the global COVID-19 pandemic on the Company, the projections presented also reflected various assumptions, including regarding certain future events, all of which are difficult to predict (the “October 2020 Projections”). These financial projections were provided to AGM and HEC and other prospective bidders during the due diligence process, which forecasts did not take into account the Acquisition as set forth in the Acquisition Agreement.
In December 2020, after discussion with the Board regarding general business uncertainty and the potential impacts of a prolonged second-wave of the global COVID-19 pandemic, a slower recovery, extended depression of cross-border travel, slower growth in U.S. same store sales and in managed services and the acceleration of a trend away from cash usage in the Company’s mature international markets, the Company’s management prepared certain additional unaudited prospective financial information for fiscal years 2020 through 2025 in connection with the Board’s review of AGM and HEC’s acquisition proposal and evaluation of other strategic alternatives (the “December 2020 Projections” and together with the October 2020 Projections, the “Projections”)). The December 2020 Projections were presented to the Board during a meeting held on December 9, 2020. The Company’s management and the Board believed that the December 2020 Projections incorporated assumptions that appropriately reflected risk and uncertainty in the foreseeable operating conditions relative to the October 2020 Projections. The December 2020 Projections assumed a prolonged second-wave of the global COVID-19 pandemic, a slower recovery from the impacts of the pandemic, extended depression of cross-border travel, slower growth in U.S. same-store sales and in managed services and the acceleration of a trend away from cash usage in the Company’s mature international markets. The December 2020 Projections were also provided to AGM and HEC prior to execution of the Acquisition Agreement.
At the time the December 2020 Projections were prepared, the Company’s management believed that the prior assumptions underlying the October 2020 Projections no longer reflected the Company’s prospects, as they did not take into account the impact of a prolonged second-wave of the global COVID-19 pandemic, a slower recovery, extended depression of cross-border travel, slower growth in U.S. same store sales and in managed services and the acceleration of a trend away from cash usage in the Company’s mature international markets.
The December 2020 Projections prepared by the Company’s management and reviewed with the Board were provided to Goldman Sachs, and Goldman Sachs was directed by the Board to use the December 2020 Projections rather than the October 2020 Projections for purposes of performing its financial analyses and rendering its opinion to the Board as described in “Opinion of Goldman Sachs & Co. LLC”.
A summary of the October 2020 Projections and the December 2020 Projections is not being included in this proxy statement to influence your decision whether to vote in favor of the Court Scheme Proposal at the Court Meeting or in favor of the Articles Amendment Proposal and the Advisory Transaction-Related Compensation Proposal at the General Meeting or for any other purpose, but is included only to give the Company Shareholders access to certain non-public information previously made available to the Board, Goldman Sachs, AGM and HEC. The inclusion of the financial data excerpted from the October 2020 Projections and the December 2020 Projections should not be regarded as an indication that the Board, Goldman Sachs, AGM, HEC or any other recipient of this information considered, or now considers, it to be material, an assurance of the achievement of future results, or an accurate or reliable prediction of future results of the Company, and they should not be relied on as such.
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As described above, notwithstanding the fact that (i) the Board no longer believes the assumptions underlying the October 2020 Projections reflect the Company’s prospects and did not rely on the October 2020 Projections in approving the Acquisition Agreement and (ii) Goldman Sachs did not rely on the October 2020 Projections in rendering its fairness opinion, a summary of the October 2020 Projections is being included in this proxy statement only to give the Company Shareholders access to certain non-public information previously made available to the Board, Goldman Sachs, AGM and HEC.
The following table summarizes the October 2020 Projections prepared by the Company’s management as described above:
October 2020 Projections
|
(In millions)
|
| |
2019A
|
| |
2020E
|
| |
2021E
|
| |
2022E
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||||||||||||||
|
Revenue
|
| | | $ | 1,349 | | | | | $ | 1,116 | | | | | $ | 1,245 | | | | | $ | 1,331 | | | | | $ | 1,421 | | | | | $ | 1,491 | | | | | $ | 1,563 | | |
|
Adjusted EBITDA(1)
|
| | | $ | 308 | | | | | $ | 251 | | | | | $ | 280 | | | | | $ | 328 | | | | | $ | 363 | | | | | $ | 389 | | | | | $ | 426 | | |
|
Adjusted EPS(2)
|
| | | $ | 2.52 | | | | | $ | 1.53 | | | | | $ | 1.88 | | | | | $ | 2.85 | | | | | $ | 3.72 | | | | | $ | 4.33 | | | | | $ | 4.93 | | |
|
CapEx(3)
|
| | | $ | 125 | | | | | $ | 91 | | | | | $ | 91 | | | | | $ | 100 | | | | | $ | 100 | | | | | $ | 100 | | | | | $ | 100 | | |
|
Adjusted EBITDA – CapEx
|
| | | $ | 183 | | | | | $ | 160 | | | | | $ | 189 | | | | | $ | 228 | | | | | $ | 263 | | | | | $ | 289 | | | | | $ | 326 | | |
|
Unlevered Free Cash Flows(4)
|
| | | | — | | | | | | — | | | | | $ | 136 | | | | | $ | 161 | | | | | $ | 187 | | | | | $ | 198 | | | | | $ | 218 | | |
(1)
Adjusted EBITDA excludes the items excluded from EBITDA as well as share-based compensation expense, certain other income and expense amounts, acquisition related expenses, gains or losses on disposal and impairment of assets, certain non-operating expenses, (if applicable in a particular period), the obligation for the payment of income taxes, interest expense and other obligations such as capital expenditures, and includes an adjustment for noncontrolling interests. EBITDA adds interest, income tax expense (benefit), depreciation and accretion, amortization of deferred financing costs and note discounts, and amortization of intangible assets, and certain costs not anticipated to occur in future periods to net income.
(2)
Adjusted EPS is calculated by dividing Adjusted Net Income by weighted average diluted shares outstanding. Adjusted Net Income represents net income computed in accordance with GAAP, before amortization of intangible assets, deferred financing costs and note discount, gains or losses on disposal and impairment of assets, share-based compensation expense, certain other income and expense amounts, acquisition and divestiture-related expenses, certain non-operating expenses, and (if applicable in a particular period) certain costs not anticipated to occur in future periods. The non-GAAP tax rate used to calculate Adjusted Net Income represent the GAAP tax rate for the period as adjusted by the estimated tax impact of the items adjusted from the measure.
(3)
CapEx represents the Company’s annual capital investment that is primarily related to organic growth projects, including the purchase of ATMs for both new and existing ATM management agreements, technology and product development, investments in infrastructure, ongoing refreshment of ATMs and operational assets and other related type activities in the normal course of business.
(4)
Unlevered Free Cash Flow is a non-GAAP measure and is calculated as Adjusted EBITDA, unburdened for stock-based compensation expense and adjusted for capital expenditures, changes in net working capital and cash taxes.
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The following table summarizes the December 2020 Projections prepared by the Company’s management as described above:
December 2020 Projections
|
(In millions)
|
| |
2019A
|
| |
2020E
|
| |
2021E
|
| |
2022E
|
| |
2023E
|
| |
2024E
|
| |
2025E
|
| |||||||||||||||||||||
|
Revenue
|
| | | $ | 1,349 | | | | | $ | 1,110 | | | | | $ | 1,222 | | | | | $ | 1,271 | | | | | $ | 1,323 | | | | | $ | 1,364 | | | | | $ | 1,407 | | |
|
Adjusted EBITDA(1)
|
| | | $ | 308 | | | | | $ | 267 | | | | | $ | 281 | | | | | $ | 296 | | | | | $ | 311 | | | | | $ | 320 | | | | | $ | 339 | | |
|
Adjusted EPS(2)
|
| | | $ | 2.52 | | | | | $ | 1.73 | | | | | $ | 1.90 | | | | | $ | 2.29 | | | | | $ | 2.79 | | | | | $ | 3.14 | | | | | $ | 3.48 | | |
|
CapEx(3)
|
| | | $ | 125 | | | | | $ | 90 | | | | | $ | 98 | | | | | $ | 102 | | | | | $ | 106 | | | | | $ | 109 | | | | | $ | 113 | | |
|
Adjusted EBITDA – CapEx
|
| | | $ | 183 | | | | | $ | 176 | | | | | $ | 184 | | | | | $ | 194 | | | | | $ | 205 | | | | | $ | 211 | | | | | $ | 226 | | |
|
Unlevered Free Cash Flows(4)
|
| | | | — | | | | | | — | | | | | $ | 127 | | | | | $ | 147 | | | | | $ | 150 | | | | | $ | 149 | | | | | $ | 158 | | |
(1)
Adjusted EBITDA excludes the items excluded from EBITDA as well as share-based compensation expense, certain other income and expense amounts, acquisition related expenses, gains or losses on disposal and impairment of assets, certain non-operating expenses, (if applicable in a particular period), the obligation for the payment of income taxes, interest expense and other obligations such as capital expenditures, and includes an adjustment for noncontrolling interests. EBITDA adds interest, income tax expense (benefit), depreciation and accretion, amortization of deferred financing costs and note discounts, and amortization of intangible assets, and certain costs not anticipated to occur in future periods to net income.
(2)
Adjusted EPS is calculated by dividing Adjusted Net Income by weighted average diluted shares outstanding. Adjusted Net Income represents net income computed in accordance with GAAP, before amortization of intangible assets, deferred financing costs and note discount, gains or losses on disposal and impairment of assets, share-based compensation expense, certain other income and expense amounts, acquisition and divestiture-related expenses, certain non-operating expenses, and (if applicable in a particular period) certain costs not anticipated to occur in future periods. The non-GAAP tax rate used to calculate Adjusted Net Income represent the GAAP tax rate for the period as adjusted by the estimated tax impact of the items adjusted from the measure.
(3)
CapEx represents the Company’s annual capital investment that is primarily related to organic growth projects, including the purchase of ATMs for both new and existing ATM management agreements, technology and product development, investments in infrastructure, ongoing refreshment of ATMs and operational assets and other related type activities in the normal course of business.
(4)
Unlevered Free Cash Flow is a non-GAAP measure and is calculated as Adjusted EBITDA, unburdened for stock-based compensation expense and adjusted for capital expenditures, changes in net working capital and cash taxes.
The Projections are subjective in many respects and, thus, subject to interpretation. Although presented with numeric specificity, the Projections reflect numerous estimates and assumptions with respect to industry performance and competition, general business, economic, market and financial conditions and matters specific to the Company’s businesses, including the factors listed under “Cautionary Statement Regarding Forward-Looking Statements”, all of which are difficult to predict and many of which are beyond the Company’s control. The Company cannot provide any assurance that the assumptions underlying the Projections will be realized.
Many of the assumptions reflected in the Projections are subject to change and the Projections do not reflect revised prospects for the Company’s business, changes in general business or economic conditions or any other transaction or event that has occurred or that may occur and that was not anticipated at the time such financial information was prepared. The Company has not updated and does not intend to update or otherwise revise the Projections. There can be no assurance that the results reflected in the Projections will be realized or that actual results will not materially vary from the Projections. In addition, the Projections cover multiple years and such information by its nature becomes less predictive with each successive year. Therefore, the Projections included in this proxy statement should not be relied on as necessarily predictive of actual future events nor construed as financial guidance.
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Company shareholders are urged to review the Company’s most recent SEC filings for a description of risk factors with respect to the Company’s business. You should read “Cautionary Statement Regarding Forward-Looking Statements” for additional information regarding the risks inherent in forward-looking information such as the Projections and “Where You Can Find More Information”.
The Projections were not prepared with a view toward complying with U.S. Generally Accepted Accounting Principles (which we refer to as “GAAP”) (including because certain metrics are non-GAAP measures, and the forecasts contained therein do not include footnote disclosures as may be required by GAAP), the published guidelines of the SEC regarding projections or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. Neither the Company’s independent registered public accounting firm, nor any other independent accountants, have compiled, examined, or performed any procedures with respect to the Projections, nor have they expressed any opinion or any other form of assurance on the Projections or the achievability of the results reflected in the Projections, and they assume no responsibility for, and disclaim any association with, the Projections. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures such as those used in the Projections may not be comparable to similarly titled amounts used by other companies or persons.
The non-GAAP financial measures set forth above should not be considered a substitute for, or superior to, financial measures determined or calculated in accordance with GAAP. The Company is not providing a quantitative reconciliation of these forward-looking non-GAAP financial measures. In accordance with Item 10(e)(1)(i)(B) of Regulation S-K of the Securities Act of 1933, a quantitative reconciliation of a forward-looking non-GAAP financial measure is only required to the extent it is available without unreasonable efforts. The Company does not currently have sufficient data to accurately estimate the variables and individual adjustments for such reconciliation, or to quantify the probable significance of these items at this time. The adjustments required for any such reconciliation of the Company’s forward-looking non-GAAP financial measures cannot be accurately forecast by the Company, and therefore the reconciliation has been omitted. For the reasons described above, readers of this proxy statement are cautioned not to place undue, if any, reliance on the Projections. The Company has not made any representation to BidCo in the Acquisition Agreement concerning any of the Projections.
The information about the Projections set forth above does not give effect to the Acquisition and also does not take into account the effect of any failure of the Acquisition to be consummated.
THE COMPANY DOES NOT INTEND TO UPDATE OR OTHERWISE REVISE THE ABOVE PROJECTIONS TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE WHEN MADE OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS, EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING SUCH FORECASTS ARE NOT REALIZED.
Opinion of Goldman Sachs & Co. LLC
At a meeting of the Board, Goldman Sachs rendered to the Board its oral opinion, subsequently confirmed in its written opinion dated December 15, 2020, 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 in Goldman Sachs’ written opinion, the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement was fair from a financial point of view to such Company Shareholders.
The full text of the written opinion of Goldman Sachs, dated December 15, 2020, which sets forth the assumptions made, procedures followed, matters considered, qualifications and limitations on the review undertaken in connection with Goldman Sachs’ opinion, is attached to this proxy statement as Annex C. The summary of Goldman Sachs’ opinion contained in this proxy statement is qualified in its entirety by reference to the full text of Goldman Sachs’ written opinion. Goldman Sachs’ advisory services and opinion were provided for the information and assistance of the Board in connection with its consideration of the Acquisition and the opinion does not constitute a recommendation as to how any Company Shareholder should vote with respect to the Acquisition or any other matter.
65
In connection with rendering the opinion described above and performing its related financial analyses, Goldman Sachs reviewed, among other things:
•
the Acquisition Agreement;
•
annual reports to shareholders and Annual Reports on Form 10-K of the Company for the four years ended December 31, 2019 and the Company’s Registration Statement on Form S-4, including the proxy statement/prospectus contained therein dated May 19, 2016;
•
certain interim reports to shareholders and Quarterly Reports on Form 10-Q of the Company;
•
certain other communications from the Company to its shareholders;
•
certain publicly available research analyst reports for the Company; and
•
certain internal financial analyses and forecasts for the Company prepared by its management, as approved for Goldman Sachs’ use by the Company (referred to in this section as the “December 2020 Projections” and which are summarized in the section entitled “The Acquisition — Certain Financial Projections Utilized in Connection with the Acquisition” beginning on page 61).
Goldman Sachs also held discussions with members of the senior management of the Company regarding their assessment of the past and current business operations, financial condition and future prospects of the Company; reviewed the reported price and trading activity for the Shares; compared certain financial and stock market information for the Company 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 consumer and merchant financial services industry and in other industries; 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 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, Goldman Sachs, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with the consent of the Board that the December 2020 Projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company. 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 the Company or any of its subsidiaries and Goldman Sachs 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 Acquisition would be obtained without any adverse effect on the expected benefits of the Acquisition in any way meaningful to its analysis. Goldman Sachs assumed that the Acquisition would be consummated on the terms set forth in the Acquisition 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 the Company to engage in the Acquisition, or the relative merits of the Acquisition as compared to any strategic alternatives that may be available to the Company, including certain indications of interests provided by other parties for transactions at prices greater than the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement, which indications of interests, the Board advised Goldman Sachs, the Board determined not to pursue; 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 Company Shareholders (other than BidCo and its affiliates and HEC), as of the date of its opinion, of the $35.00 in cash per Share to be paid to such Company Shareholders pursuant to the Acquisition Agreement. Goldman Sachs did not express any view on, and its opinion does not address, any other term or aspect of the Acquisition Agreement or the Acquisition, or any term or aspect of the Contribution Agreement or any other agreement or instrument contemplated by the Acquisition Agreement or entered into or amended in connection with the Acquisition, including the fairness of the Acquisition to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of the Company; 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 the Company, or class of such persons, in connection with the Acquisition, whether relative to the $35.00 in cash per Share to be paid
66
to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement or otherwise. Goldman Sachs did not express any opinion as to the prices at which the Shares would trade at any time, or as to the potential effects of volatility in the credit, financial and stock markets on the Company, BidCo or the Acquisition, or as to the impact of the Acquisition on the solvency or viability of the Company or BidCo or the ability of the Company or BidCo to pay their respective obligations when they would come due. 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 the opinion. Goldman Sachs’ advisory services and its opinion were provided for the information and assistance of the Board in connection with its consideration of the Acquisition and such opinion does not constitute a recommendation as to how any Company Shareholder should vote with respect to the Acquisition or any other matter. Goldman Sachs’ opinion was approved by a fairness committee of Goldman Sachs.
Summary of Financial Analyses
The following is a summary of the material financial analyses presented by Goldman Sachs to the Board in connection with Goldman Sachs’ rendering to the Board of 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 December 14, 2020, and is not necessarily indicative of current market conditions.
Implied Premia and Multiples
Goldman Sachs calculated and compared the implied premia and implied multiples described below based on the $35.00 in cash per Share to be paid to the Company Shareholders (other than BidCo and its affiliates and HEC) pursuant to the Acquisition Agreement:
Goldman Sachs calculated the implied premia represented by the $35.00 in cash per Share relative to:
•
$25.87, the closing price of the Shares on December 8, 2020, the day before HEC filed an amendment to its Schedule 13D with respect to the submission, together with funds managed by affiliates of AGM, of a non-binding proposal to the Board of the Company concerning the Acquisition of all of the outstanding Shares not owned by HEC and funds managed by affiliates of AGM (which we refer to as the “Unaffected Share Price”);
•
$21.93, the volume weighted average price (which we refer to as the “VWAP”) of the Shares over the 30-trading-day period ended December 8, 2020 (which we refer to as the “30-Day VWAP”);
•
$21.51, the VWAP of the Shares over the 90-trading-day period ended December 8, 2020 (which we refer to as the “90-Day VWAP”);
•
$21.85, the VWAP of the Shares over the 180-trading-day period ended December 8, 2020 (which we refer to as the “180-Day VWAP”);
•
$23.62, the VWAP of the Shares over the period beginning on February 20, 2020 (pre-COVID S&P 500 high) and ended December 8, 2020 (which we refer to as the “Pre-COVID VWAP”);
•
$46.94, the highest closing trading price of the Shares over the 52-week period ended December 8, 2020 (which we refer to as the “52-Week High”); and
•
$15.93, the lowest closing trading price of the Shares over the 52-week period ended December 8, 2020 (which we refer to as the “52-Week Low”).
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The results of these calculations and comparisons are as follows:
| | | |
Implied Premium
Represented by $35.00 in cash per Share |
| |||
| Reference Price Per Share: | | | | | | | |
|
Unaffected Share Price of $25.87
|
| | | | 35.3% | | |
|
30-Day VWAP of $21.93
|
| | | | 59.6% | | |
|
90-Day VWAP of $21.51
|
| | | | 62.7% | | |
|
180-Day VWAP of $21.85
|
| | | | 60.2% | | |
|
Pre-COVID VWAP of $23.62
|
| | | | 48.2% | | |
|
52-Week High of $46.94
|
| | | | (25.4)% | | |
|
52-Week Low of $15.93
|
| | | | 119.7% | | |
In addition, Goldman Sachs calculated an implied equity value of the Company by multiplying the $35.00 in cash per Share by the total number of fully diluted Shares outstanding as of December 13, 2020, calculated using information provided by the Company’s management and the treasury stock method. Goldman Sachs then calculated an implied enterprise value of the Company by adding to the implied equity value it calculated as described above, the Company’s net debt (defined for this purpose as the Company’s debt less cash, including the value of non-controlling interest, and which we refer to as “Net Debt”) as of September 30, 2020, as reflected in the Company’s publicly available filings.
Using the foregoing, Goldman Sachs calculated the following multiples:
•
The implied enterprise value for the Company as a multiple of the estimated earnings before interest, taxes, depreciation and amortization (which we refer to as “Adjusted EBITDA”) of the Company for calendar years 2020, 2021 and 2022, as reflected in the December 2020 Projections.
•
The $35.00 in cash per Share as a multiple of estimated earnings per Share (which we refer to as “Adjusted EPS”) of the Company for calendar years 2020, 2021 and 2022, as reflected in the December 2020 Projections.
The results of these calculations and comparisons are as follows:
| | | |
Multiples
|
| |||
| Implied Enterprise Value as a Multiple of: | | | | | | | |
|
2020E Adjusted EBITDA
|
| | | | 8.6x | | |
|
2021E Adjusted EBITDA
|
| | | | 8.1x | | |
|
2022E Adjusted EBITDA
|
| | | | 7.7x | | |
| | | |
Multiples
|
| |||
| Implied Price as a Multiple of: | | | | | | | |
|
2020E Adjusted EPS
|
| | | | 20.2x | | |
|
2021E Adjusted EPS
|
| | | | 18.4x | | |
|
2022E Adjusted EPS
|
| | | | 15.3x | | |
Illustrative Discounted Cash Flow Analysis
Using the December 2020 Projections, Goldman Sachs performed an illustrative discounted cash flow analysis on the Company to derive a range of illustrative present values per Share.
Using discount rates ranging from 7.5% to 8.5%, reflecting estimates of the Company’s weighted average cost of capital, and a mid-year convention, Goldman Sachs derived a range of illustrative enterprise values for the Company, by discounting to present value as of September 30, 2020, (a) the estimates of the unlevered free cash flow to be generated by the Company for the period from January 1, 2021 to December 31,
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2025, as reflected in the December 2020 Projections, and (b) a range of illustrative terminal values for the Company as of December 31, 2025, calculated by applying a range of terminal year multiples of 6.0x to 7.5x to the Company’s estimated terminal year Adjusted EBITDA as reflected in the December 2020 Projections (which analysis implied perpetuity growth rates ranging from (0.2)% to 2.2%). Goldman Sachs derived such discount rates by application of the capital asset pricing model, which requires certain company-specific inputs, including the company’s target capital structure weightings, the cost of long-term debt, future applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The range of terminal year multiples of enterprise value to Adjusted EBITDA for the last 12 month period (which we refer to as “Adjusted LTM EBITDA”) was estimated by Goldman Sachs utilizing its professional judgment and experience, taking into account historical quarters’ Adjusted LTM EBITDA multiples for the Company for the last five years.
Goldman Sachs derived ranges of illustrative enterprise values for the Company by adding the ranges of present values it calculated for the unlevered free cash flow and illustrative terminal values, as described above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived the Company’s Net Debt as of September 30, 2020, as reflected in the Company’s publicly available filings, to derive a range of illustrative equity values for the Company. Goldman Sachs then divided the range of illustrative equity values by the implied total number of fully diluted Shares as of December 13, 2020, based on the derived range of illustrative equity values, and calculated using information provided by management and the treasury stock method, to derive a range of illustrative present values per Share of $27.06 to $36.20.
Illustrative Present Value of Future Share Price Analysis
Goldman Sachs performed an illustrative analysis to derive a range of illustrative present values per Share, based on theoretical future prices calculated by Goldman Sachs for the Shares.
Goldman Sachs derived a range of theoretical future values per Share for the Shares as of December 11 of each of 2020, 2021 and 2022 by applying illustrative next twelve months’ Adjusted P/E multiples ranging from 12.0x to 16.0x to estimates of the Adjusted EPS of the Company for each of fiscal years 2021, 2022 and 2023 as reflected in the December 2020 Projections. By applying a discount rate of 9.5%, reflecting an estimate of the Company’s cost of equity, Goldman Sachs discounted to present value, as of December 11, 2020, the theoretical future values per Share it derived for each applicable year to yield present values per Share ranging from $22.67 to $37.11.
The illustrative next twelve months’ Adjusted P/E multiples used in the foregoing analysis were derived by Goldman Sachs using its professional judgement and experience, taking into account historical next twelve months’ Adjusted P/E multiples for the Company over the past five years. Goldman Sachs derived the discount rate used in the foregoing analysis by application of the capital asset pricing model, 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.
Selected Precedent Transactions Analysis
Goldman Sachs analyzed certain publicly available information relating to certain acquisition transactions announced since November 1, 2015 involving target companies in the consumer and merchant financial services industry.
While none of the target companies in the selected transactions are directly comparable to the Company and none of the selected transactions are directly comparable to the proposed transaction, the target companies in the selected transactions are companies with certain operations that, for the purposes of analysis, may be considered similar to certain operations of the Company.
Using publicly available information, for each of the selected transactions, Goldman Sachs calculated the implied enterprise value of the applicable target company based on the consideration paid in the applicable transaction, as a multiple of the target company’s estimated LTM EBITDA for the period ended prior to announcement of each applicable transaction, as disclosed in public company filings and other
69
publicly available information. The selected transactions and the implied enterprise value to LTM EBITDA multiples calculated for the transactions are set forth below.
|
Announced
|
| |
Acquiror
|
| |
Target
|
| |
EV / LTM EBITDA
|
|
| Nov-15 | | |
Diebold, Incorporated
|
| | Wincor Nixdorf Aktiengesellschaft | | |
11.0x
|
|
| Jul-16 | | | AGM | | | Outerwall, Inc. | | |
3.5x
|
|
| Oct-16 | | | Cardtronics plc | | | DirectCash Payments Inc. | | |
7.7x
|
|
| Jul-17 | | | Blackstone, CVC | | | Paysafe Group | | |
12.7x
|
|
| Apr-18 | | | Francisco Partners | | | Verifone Systems, Inc. | | |
12.5x
|
|
| Feb-20 | | |
The Brink’s Company
|
| | G4S plc | | |
5.5x
|
|
Based on the results of the foregoing calculations and Goldman Sachs’ analyses of the various transactions and its professional judgment and experience, Goldman Sachs applied a reference range of enterprise value to LTM EBITDA multiples of 3.5x to 12.7x to the Company’s estimated Adjusted EBITDA for the Company’s fiscal year 2020, as reflected in the December 2020 Projections, to derive a range of implied enterprise values for the Company. Goldman Sachs subtracted from this range of implied enterprise values the Company’s Net Debt as of September 30, 2020, as reflected in the Company’s publicly available filings, and divided the result by the implied total number of fully diluted Shares outstanding as of December 13, 2020, based on the derived range of illustrative equity values, and calculated using information provided by management and the treasury stock method, to derive a range of implied values per Share of $6.01 to $58.74.
Premia Paid Analysis
Goldman Sachs reviewed and analyzed, using publicly available data obtained from FactSet, the premia paid in 242 acquisitions of publicly traded companies in the United States announced during the period from January 1, 2015 through December 11, 2020 in which the target company had an implied enterprise value of $1 billion to $10 billion. For each calendar year through December 11, 2020, Goldman Sachs calculated the median premia of the price paid in acquisitions announced during such period relative to the target company’s closing share price at each of the 1-trading day, 30-trading day, 90-trading day and the 52-week high prior to the original announcement of the transaction. For the entire period from January 1, 2015 through December 11, 2020, Goldman Sachs calculated the 25th percentile and 75th percentile of the premia paid in acquisitions announced during such period relative to the target company’s closing share price at each of the 1-trading day, 30-trading day, 90-trading day, and 52-week high prior to the original announcement of the transaction. The following shows a summary of the results of the review:
| | | |
Premium to
1-Trading Day |
| |
Premium to
30-Trading Day |
| |
Premium to
90-Trading Day |
| |
Premium/(Discount)
to 52-Week High |
| ||||||||||||
| Entire Period | | | | | | | | | | | | | | | | | | | | | | | | | |
|
25th Percentile
|
| | | | 9.9% | | | | | | 20.5% | | | | | | 23.8% | | | | | | (2.5)% | | |
|
75th Percentile
|
| | | | 37.9% | | | | | | 50.1% | | | | | | 61.0% | | | | | | 16.6% | | |
| Calendar Years | | | | | | | | | | | | | | | | | | | | | | | | | |
|
2015 median
|
| | | | 17.4% | | | | | | 34.9% | | | | | | 35.2% | | | | | | 10.2% | | |
|
2016 median
|
| | | | 21.2% | | | | | | 39.2% | | | | | | 49.0% | | | | | | 3.5% | | |
|
2017 median
|
| | | | 14.4% | | | | | | 29.7% | | | | | | 32.5% | | | | | | 8.0% | | |
|
2018 median
|
| | | | 17.2% | | | | | | 25.1% | | | | | | 35.5% | | | | | | 5.6% | | |
|
2019 median
|
| | | | 20.1% | | | | | | 37.2% | | | | | | 42.8% | | | | | | 6.9% | | |
|
2020 year to date median
|
| | | | 26.8% | | | | | | 47.9% | | | | | | 64.1% | | | | | | 12.2% | | |
Based on its review of the foregoing data and its professional judgment and experience, Goldman Sachs applied a reference range of illustrative premia of 10%-38% (based on the average premia paid in the 25th percentile and 75th percentile of acquisitions announced in the entire period relative to the target
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company’s share price over the 1-trading day prior to the original announcement of the transaction) to the Unaffected Share Price. This analysis resulted in a range of implied values per Share of $28.46 to $35.70.
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 the Company or BidCo or the Acquisition.
Goldman Sachs prepared these analyses for purposes of providing its opinion to the Board as to the fairness from a financial point of view to the Company Shareholders (other than BidCo and its affiliates and HEC), as of the date of the opinion, of the $35.00 in cash per Share to be paid to such Company Shareholders pursuant to the Acquisition Agreement. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon projections 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 the Company, BidCo, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecast.
The consideration of $35.00 in cash per Share was determined through arm’s-length negotiations between the Company and BidCo and was approved by the Board. Goldman Sachs provided advice to the Board during the Company’s negotiations with BidCo in connection with the Acquisition Agreement. Goldman Sachs did not, however, recommend any specific amount of consideration to the Company or that any specific amount of consideration constituted the only appropriate consideration for the Acquisition.
As described above, Goldman Sachs’ opinion to the Board was one of many factors taken into consideration by the Board in making its determination to approve the Acquisition. The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the delivery of its fairness opinion to the Board and is qualified in its entirety by reference to the written opinion of Goldman Sachs, attached as Annex C to this proxy statement.
Goldman Sachs and its affiliates are engaged in advisory, underwriting 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 the Company, BidCo and any of their respective affiliates and third parties, including HEC, a significant shareholder of the Company that is party to the Contribution Agreement with BidCo pursuant to which, in connection with the Acquisition, HEC will contribute a portion of its Shares to Bidco in exchange for equity interest in BidCo, and AGM, an affiliate of BidCo, and their respective affiliates and portfolio companies, or any currency or commodity that may be involved in the Acquisition. Goldman Sachs has acted as financial advisor to the Company in connection with, and has participated in certain of the negotiations leading to, the Acquisition. Goldman Sachs expects to receive fees for its services in connection with the Acquisition, the principal portion of which is contingent upon consummation of the Acquisition, and the Company 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 the Company and/or its affiliates from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as joint bookrunner in connection with the Company’s Senior Secured Term Loan B Facility due 2027 (aggregate principal amount $500 million) in June 2020. During the two year period ended December 15, 2020, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services
71
provided by its Investment Banking Division to the Company and/or its affiliates of approximately $0.5 million. Goldman Sachs also has provided certain financial advisory and/or underwriting services to AGM and/or its affiliates and portfolio companies from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as joint bookrunner in connection with the initial public offering of Aurum Holding Limited, a portfolio company of AGM, in May 2019; as financial advisor to Momentive Performance Materials Inc., a former portfolio company of AGM, in connection with its sale in May 2019; as financial advisor to Altamira Asset Management SL, an affiliate of AGM, in connection with its sale of its 85 percent interest in Altamira Asset Management S.A., in June 2019; as financial advisor to AGM in connection with the acquisition by an affiliate of AGM of the power and energy business of SPX Flow Inc. in March 2020; as financial advisor to AGM in connection with the purchase by affiliates of AGM and Silver Lake Group L.L.C. of 1,200,000 shares of Series A preferred stock and warrants to purchase 8,400,000 shares of common stock of Expedia Group Inc. in May 2020; as left lead bookrunner in connection with the initial public offering of Rackspace Technology, Inc., a portfolio company of AGM, in August 2020; as joint bookrunner with respect to a public offering by Albertsons Companies, Inc., a portfolio company of AGM, of its 3.50% Senior Notes due 2029 and its 3.25% Senior Notes due 2026 (aggregate principal amount $1,500 million) in August 2020; as financial advisor to Intrado Corporation, a portfolio company of AGM, in connection with its pending divestiture of its Health Advocate business announced in October 2020; as financial advisor to AMAG Pharmaceuticals, Inc., a former portfolio company of AGM, in connection with its sale in November 2020; as joint bookrunner with respect to a private placement by DoublePoint Energy, LLC, a portfolio company of AGM, of its 7.75% Senior Notes due 2025 (aggregate principal amount $650 million) in November 2020; and as joint bookrunner with respect to a private placement by Rackspace Technology, Inc., a portfolio company of AGM, of its 5.375% Senior Notes due 2028 (aggregate principal amount $550 million) in November 2020. During the two year period ended December 15, 2020, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division to AGM and/or its affiliates and portfolio companies of approximately $86.7 million. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to the Company, BidCo, HEC, AGM and their respective affiliates and, as applicable, portfolio companies for which the Investment Banking Division of Goldman Sachs may receive compensation. Affiliates of Goldman Sachs also may have co-invested with AGM and/or HEC and their respective affiliates from time to time and may have invested in limited partnership units of affiliates of AGM and/or HEC from time to time and may do so in the future.
The Company 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 Acquisition. Pursuant to an engagement letter between the Company and Goldman Sachs, dated December 10, 2020, the Company engaged Goldman Sachs to act as one of its financial advisors in connection with the Acquisition. The engagement letter provides for a transaction fee that is estimated, based on the information available as of the date of announcement, at approximately $25 million, $5 million of which was payable upon announcement of the proposed acquisition and the remainder of which is contingent upon completion of the acquisition, plus a potential discretionary fee of $2.5 million. In addition, the Company agreed to reimburse Goldman Sachs for certain of its expenses, including reasonable attorneys’ fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.
Interests of Directors and Executive Officers in the Acquisition
Our directors and executive officers have various interests in the Acquisition described in this section that may be in addition to, or different from, the interests of Company Shareholders generally. You should keep this in mind when considering the recommendation of the Board for the approval of the Acquisition. The Board was aware of these interests and considered them at the time they approved the Acquisition Agreement and in making their recommendation that the Company Shareholders approve the Acquisition. These interests are described below and there is no different impact on the interests of our directors when compared to the interests of the Company Shareholders generally. Mr. Braunstein, as a director of the Company and the Managing Partner and Founder of HEC, has not participated in the decision to make the recommendation as set out above.
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Treatment of Options, Time-Based Restricted Stock Units and Performance-Based Restricted Stock Units
The Acquisition Agreement provides for the following treatment of Options, Company RSUs and Company PSUs in connection with the Acquisition:
Options
Immediately prior to the Effective Date, each Option granted under any Company Share Plan prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the excess, if any, of the Per Share Consideration over the applicable exercise price per Share of such Option and (ii) the number of Shares subject to such Option, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date. Each 2021 Option will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the excess, if any, of the Per Share Consideration over the applicable exercise price per Share of such 2021 Option and (ii) the number of Shares subject to such 2021 Option, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Option would have otherwise vested and become exercisable in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date. Any Option which has a per Share exercise price that is greater than or equal to the Per Share Consideration shall be cancelled on the Effective Date for no consideration or payment.
Company RSUs
Immediately prior to the Effective Date, each Company RSU granted under any Company Share Plan prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such Company RSU award, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Internal Revenue Code). Each 2021 Company RSU will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such award of 2021 Company RSUs, payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Company RSU would have otherwise vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date.
Company PSUs
Immediately prior to the Effective Date, each Company PSU granted under any Company Share Plan prior to calendar year 2021, whether or not vested, will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such Company PSU award (with such number of Shares based on the greater of the target level of achievement and the actual level of achievement of any performance goals as determined by the Board immediately prior to the Effective Date based on pro-rated performance goals to account for any shortened performance period), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after the Effective Date (or at such later date as required under Section 409A of the Code). Each 2021 Company PSU will be cancelled and converted into the right to receive an amount in cash equal to the product of (i) the Per Share Consideration and (ii) the number of Shares subject to such 2021 Company PSU (with such number of Shares based on the target level of achievement), payable (without any crediting of interest for the period from the Effective Date through the date of payment) as soon as reasonably practicable (but no later than the first payroll date) after each date that such 2021 Company PSU would have otherwise vested in accordance with its terms but only if such conditions to vesting are satisfied prior to each such vesting date (excluding any performance conditions).
See the section below entitled “Golden Parachute Compensation” for an estimate of the amounts that would become payable to each of the Company’s named executive officers in respect of their equity awards
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in connection with the consummation of the Acquisition. Based on the assumptions described below in the section entitled “Golden Parachute Compensation”, and assuming that the Company PSUs would be paid based on target achievement of the applicable performance goals, the estimated aggregate amounts that would become payable to executive officers and directors in respect of their equity awards is as follows: Options — $6,449,938; Company RSUs — $7,476,105; and Company PSUs — $27,161,750. The figures include the value of equity awards scheduled to vest in January 2021 in the ordinary course of business, with an aggregate target value of $20,157,359, but do not include the value of any equity awards that may be granted in calendar year 2021. Directors (excluding Mr. West, listed separately below, and Michelle Moore, who resigned from the Board effective December 31, 2020 and forfeited all Company RSUs) hold 41,501 unvested Company RSUs in the aggregate and do not hold any Options or Company PSUs.
Employment Agreements for Executive Officers
The Company entered into employment agreements (each such agreement we refer to as an “Employment Agreement” and, collectively, the “Employment Agreements”) with Messrs. West, Antilley, Ferrera, Gullo, Hunt, Mackinnon, Terry, Wilmore, and Mses. House and Killeen.
Under the employment agreement with Mr. West, upon (1) a termination by the Company other than due to disability or death or for “cause” (including due to the Company’s election not to renew the initial term or any renewal term of the agreement), or (2) a resignation by the executive for “good reason” (as such terms are defined in the executive’s employment agreement), the executive is entitled to the following severance payments and benefits (i) two times the sum of the executive’s base salary and the executive’s average annual bonus paid for the two calendar years prior to termination date; (ii) a prorated annual bonus for the year of termination based on the Company’s performance for such year, payable in a lump sum between January 1 and March 15 of the following calendar year; (iii) 18 multiplied by the monthly cost of the executive’s COBRA premiums; (iv) if such termination of employment occurs within 24 months following a “change in control” (as defined in the executive’s employment agreement), the unvested portion of any annual long-term incentive program awards (which we refer to as “LTIPs”) will vest, with any applicable performance goals deemed achieved at the greater of target or actual levels; and (v) earned but unpaid base salary, earned but unpaid bonus for the year prior to the year of termination and business expense reimbursement. The payments and benefits in clauses (i) through (iv) are subject to the executive’s execution and non-revocation of a general release of claims and compliance with the surviving provisions of the employment agreement. Any payments under the executive’s employment agreement or any another agreement or arrangement applicable to the executive that would constitute “parachute payments” under Section 280G of the Code will either be reduced to the extent necessary to avoid penalty taxes, or will be paid in full, whichever would result in net greater payments to the executive on an after-tax basis.
Under the employment agreement with Mr. Ferrera, upon (1) a termination by the Company other than for “cause”, “impairment” or death (including due to the Company’s election not to renew the initial term or any renewal term of the agreement), or (2) resignation by the executive for “good reason” (as such terms are defined in Mr. Ferrera’s employment agreement)), the executive is entitled to the following severance payments and benefits: (i) two times the sum of the executive’s base salary and the executive’s average annual bonus paid (or payable) for the prior two calendar years, payable in 24 equal consecutive semi-monthly installments on the 15th and last day of each month, measuring from the termination date; (ii) a prorated annual bonus for the year of termination based on the Company’s performance for such year, payable in a lump sum between January 1 and March 15 of the following calendar year; (iii) reimbursement on a monthly basis for 18 months of COBRA premiums for executive and executive’s eligible dependents under the Company’s group health plans; (iv) if such termination is within 24 months following a “change in control” (as defined in Mr. Ferrera’s employment agreement) (A) any sign-on or one-time special equity awards granted under the Company’s stock incentive plan that were not awarded to the executive as part of the Company’s annual equity award program, and any annual equity awards that were granted under the Company’s stock incentive plan that vest solely based on continued employment or service, will fully vest as of the termination date, (B) any annual equity awards granted under the Company’s stock incentive plan that vest solely or in part based on performance goals, (1) for a termination of employment during the performance period applicable to an award, will be deemed earned at the greater of actual or target level of performance and any time-vesting condition will be deemed satisfied as of termination date and (2) for a termination of employment following the end of the performance period applicable to an award, if such
74
award was earned during the performance period, such award will fully vest as of termination date; and (v) earned but unpaid base salary, earned but unpaid bonus for the year prior to the year of termination and business expense reimbursement. The payments and benefits in clauses (i) through (iv) are subject to the executive’s execution and non-revocation of a general release of claims and compliance with the surviving provisions of the employment agreement. Any payments under Mr. Ferrera’s employment agreement or any another agreement or arrangement applicable to the executive that would constitute “parachute payments” under Section 280G of the Code will either be reduced to the extent necessary to avoid penalty taxes, or will be paid in full, whichever would result in net greater payments to the executive on an after-tax basis.
Under the employment agreement with Mr. Gullo, upon (1) a termination by the Company without “cause” or due to non-renewal of the term of the agreement, or (2) resignation by the executive for “good reason” (as such terms are defined in the executive’s employment agreement), the executive is entitled to the following severance payments and benefits: (i) an amount equal to one times the sum of (1) the executive’s base salary and (2) the executive’s target bonus, payable over the 12 months following the termination date in substantially equal installments; (ii) payment of 12 months of the employer portion of premiums for coverage under the Company’s group health at the same level of coverage as the executive had on the termination date, payable in a lump sum on the first payroll date following the 60th day after the termination date; (iii) any outstanding equity award that was granted subject solely to time- based vesting will fully vest on the termination date; and (iv) earned but unpaid base salary, earned but unpaid bonus for the year prior to the year of termination, and business expense reimbursement. The payments and benefits in clauses (i) through (iii) are subject to the executive’s execution and non-revocation of a general release of claims and compliance with the restrictive covenants in his employment agreement.
Under the employment agreement with Mr. Terry, upon (1) a termination of the executive’s employment by the Company other than for cause or (2) resignation by the executive for “good reason” in either case within 24 months following a “change in control” (as such terms are defined in the executive’s employment agreement), the executive is entitled to the following severance payments and benefits: (i) two times the executive’s annual salary and target annual bonus, payable in a lump sum on the first payroll date that falls on or immediately following the 60th day after the termination date; (ii) a prorated annual bonus based on the target bonus payable under the Company’s annual incentive plan for the year of termination, payable in a lump sum on the first payroll date that falls on or immediately following the 60th day after the termination date; (iii) (A) any sign-on or one-time special equity awards that were not awarded to the executive as part of the Company’s annual LTIP, and any equity awards granted as part of the annual LTIP that vest solely based on continued employment or service, will fully vest as of the termination date; and (B) any equity awards granted as part of the annual LTIP that vest solely or in part based on performance goals: (1) for a termination of employment during the performance period applicable to an award, will be deemed earned at the greater of actual or target level of performance and any time-vesting condition will be satisfied as of the termination date; and (2) for a termination of employment following the end of the performance period applicable to an award, any such award earned during the performance period will fully vest as of the termination date; and (iv) earned but unpaid base salary and business expense reimbursement. The payments and benefits in clauses (i) through (iii) are subject to the executive’s execution and non-revocation of a general release of claims and compliance with the surviving provisions of the employment agreement.
Under the employment agreements with Messrs. Antilley, Hunt, Mackinnon, Wilmore, and Mses. House and Killeen, if the executive’s employment is terminated (1) by the Company other than for “cause”, death or “impairment” (including the Company’s election not to renew the initial term or any renewal term) or (2) resignation by the executive for “good reason” in each case, within 24 months following a “change in control” (in each case, as defined in the Employment Agreements, and which along with the aforementioned terminations of employment for Messrs. West, Ferrera, Gullo and Terry, we refer to as a “qualifying termination”), then each executive is entitled to the following severance payments and benefits: (i) two times the sum of the executive’s base salary and target annual bonus; (ii) a prorated annual bonus for the year of termination assuming target achievement of the applicable performance goals; (iii) an amount equal to 18 times the monthly premium for coverage under the Company’s group health plans under COBRA; (iv) (A) any sign-on or one-time special equity awards that were not awarded to the executive as part of the Company’s annual LTIP, and any equity awards that were granted as part of the Company’s annual LTIP that vest solely based on continued employment or service, will fully vest as of the termination date, (B) any equity awards granted as part of the Company’s annual LTIP that vest solely or in part based on performance
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goals, (1) for a termination of employment during the performance period applicable to an award, such award will be deemed earned at the greater of actual or target level of performance and any time-vesting condition will be deemed satisfied as of termination date and (2) for a termination of employment following the end of the performance period applicable to an award, if such award was earned during the performance period, such award will fully vest as of termination date; and (v) earned but unpaid base salary, earned but unpaid bonus for the year prior to the year of termination and business expense reimbursement. The payments and benefits in clauses (i) through (iv) are subject to the executive’s execution and non-revocation of a general release of claims and compliance with the surviving provisions of the employment agreement.
See the section below entitled “Golden Parachute Compensation” for an estimate of the payments and benefits to which each of the Company’s named executive officers would be entitled under his Employment Agreement upon a qualifying termination occurring immediately following the effective date of the Acquisition.
Transaction Bonuses
Pursuant to the Acquisition Agreement, the Company or any subsidiary thereof may grant cash bonuses in respect of the transaction up to an aggregate amount of $500,000, payable on the Effective Date, some of which may be paid to the Company’s executive officers other than named executive officers.
Retention Awards
Pursuant to the Acquisition Agreement, the Company or any subsidiary thereof may grant cash retention awards up to an aggregate amount of $1,500,000, payable 50% nine months following the Effective Date and 50% eighteen months following the Effective Date, in each case, subject to continued employment; provided that if a recipient’s employment is terminated by the Company or any subsidiary without Cause or as a result of death or Disability (each as defined in the 2020 form of option award agreement under the Fourth Amended and Restated 2007 Stock Incentive Plan), any unpaid portion of the retention award will be paid within thirty (30) days following such termination. The Company will allocate these retention awards in consultation with BidCo, and some of these retention awards may be paid to the Company’s executive officers.
Golden Parachute Compensation
In accordance with Item 402(t) of Regulation S-K, the tables below present the estimated amounts of compensation that each named executive officer could receive that are based on or otherwise related to the Acquisition. This compensation is referred to as “golden parachute” compensation by the applicable SEC disclosure rules, and in this section we use such term to describe the transaction-related compensation payable to the Company’s named executive officers. This transaction-related compensation is subject to a non-binding advisory vote of the Company Shareholders. See the section entitled “Advisory Transaction-Related Compensation Proposal,” on page 39.
The amounts indicated below are estimates of amounts that would be payable to the named executive officers, and the estimates are based on multiple assumptions that may or may not actually occur. Except as otherwise specifically noted, the following assumptions were used solely for purposes of quantifying the potential payments and benefits described in this section:
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The relevant price per Share of $35.00, which is the price per Share to be paid in connection with the Acquisition;
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The effective date of the Acquisition is December 31, 2020, the latest practicable date prior to the filing of the preliminary proxy statement, assumed solely for purposes of the disclosure in this section, unless noted otherwise; and
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Each of the executive officers experienced a “qualifying termination” (as defined below) immediately following the assumed effective date.
The amounts indicated below are estimates based on multiple assumptions that may or may not actually occur or be accurate as of the date referenced; therefore, the actual amounts, if any, that may be paid or become payable may materially differ from the amounts set forth below.
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Some of the assumptions, including those identified above, are based on information not currently available, and as a result, the actual amounts to be received by a named executive officer may differ in material respects from the amounts set forth below. All dollar amounts set forth below have been rounded to the nearest whole number.
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