DEFM14A 1 ny20020120x10_defm14a.htm DEFM14A

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of the
Securities Exchange Act of 1934
(Amendment No. __)
Filed by the Registrant ☒
Filed by a Party other than the Registrant
Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

Definitive Proxy Statement

Definitive Additional Materials

Soliciting Material Pursuant to §240.14a-12
Via Renewables, Inc.
(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 all boxes that apply):

No fee required.

Fee paid previously with preliminary materials.

Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11.

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VIA RENEWABLES, INC.
12140 Wickchester Ln., Suite 100
Houston, Texas 77079
To the shareholders of Via Renewables, Inc.:
You are cordially invited to attend a special meeting (the “Special Meeting”) of the shareholders of Via Renewables, Inc. (the “Company”). The Special Meeting will be held at 10:00 AM, Central Time, on Thursday, May 23, 2024. You will be able to attend the Special Meeting, vote, and submit your questions during the Special Meeting via live webcast by visiting www.virtualshareholdermeeting.com/VIA2024SM. To attend the Special Meeting via live webcast, you must have your sixteen-digit control number that is shown on the proxy card accompanying the enclosed proxy statement. You will not be able to attend the Special Meeting in person. Formal notice of the Special Meeting, a proxy statement, and a proxy card and voting instruction card accompany this letter.
At the Special Meeting, holders of shares of the Company’s Class A common stock, par value $0.01 per share (the “Class A Common Stock”) and Class B common stock, par value $0.01 per share (the “Class B common Stock” and, together with the Class A Common Stock, the “Common Stock”), voting together as a single class, will be asked to consider and vote upon a proposal to adopt the Agreement and Plan of Merger, dated as December 29, 2023 (the “Merger Agreement”), by and among the Company, Retailco, LLC, a Texas limited liability company (“Parent”), and NuRetailco LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent (“Merger Sub”).
Pursuant to the terms of the Merger Agreement, Merger Sub will merge with and into the Company and the Company will become a subsidiary of Parent (the “Merger”), at which time the separate corporate existence of Merger Sub will cease and the Company will continue its corporate existence under Delaware law as the “Surviving Corporation” of the Merger, with all of its property, rights, privileges, powers and franchises continuing unaffected by the Merger. If the Merger is consummated, each (a) share of Class A Common Stock (other than certain excluded shares as set forth in the Merger Agreement and described in the accompanying proxy statement) will be canceled and converted into the right to receive $11.00 in cash, without interest and (b) Company restricted stock unit (a “Company RSU” and collectively, the “Company RSUs”) outstanding immediately prior to the effective time of the Merger and issued pursuant to the Company’s Second Amended and Restated Long Term Incentive Plan, other than any restricted stock units held by William Keith Maxwell, III will by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Company RSU, be canceled, extinguished and converted into the right to receive from the Surviving Corporation an amount in cash, without interest, equal to the product of (i) $11.00 multiplied by (ii) the total number of shares of Common Stock underlying the Company RSU (the “Merger Consideration”). Upon completion of the Merger, Mr. Maxwell will be the beneficial owner of 100% of the common stock of the Surviving Corporation.
The proposed Merger is a “going private” transaction with respect to the Class A Common Stock under the rules of the Securities and Exchange Commission (the “SEC”).
Following the completion of the Merger, the (i) the Class A Common Stock will no longer be listed on the Nasdaq Global Select Market (“NASDAQ”), and (ii) Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”) will remain outstanding and continue to be listed on the NASDAQ. The Company will continue to file periodic and other reports with the SEC with respect to the Series A Preferred Stock. Following completion of the Merger, holders of Class A Common Stock will no longer have an equity interest in the Company and will not participate in any potential future earnings of the Company.
Upon receipt of a proposal from Mr. Maxwell, on September 5, 2023 (the “September Proposal”) (which was later withdrawn and resubmitted on November 15, 2023 (the “November Proposal” and, together with the September Proposal, the “Proposals”)) in which Mr. Maxwell expressed an interest in purchasing all of the

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Class A Common Stock not held by him, the board of directors of the Company (the “Board”) established a Special Transaction Committee (the “Special Committee”), excluding Mr. Maxwell and consisting solely of independent and disinterested directors of the Company, to evaluate the Proposals. The Special Committee was broadly empowered to engage in discussions and negotiations concerning the terms and provisions of any transaction resulting from the Proposals, to consider any alternative transactions, to engage legal and financial advisors to assist the Special Committee in deliberations and to recommend or reject the Proposals. After a series of negotiations discussed in further detail herein, at a meeting held on December 29, 2023, the Special Committee determined that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the transactions contemplated by the Merger Agreement (the “Transactions”), were fair to, and in the best interests of the Company and its shareholders (other than certain excluded shares and shares held by insiders as described in the Merger Agreement and accompanying proxy statement), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than certain excluded shares and shares held by insiders as described in the Merger Agreement and accompanying proxy statement), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). At a meeting on December 29, 2023, the Board (excluding Mr. Maxwell, who abstained and did not attend or participate in the Board meeting), accepted the unanimous recommendation of the Special Committee, and determined that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than certain excluded shares and shares held by insiders as described in the Merger Agreement and accompanying proxy statement), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than certain excluded shares and shares held by insiders as described in the Merger Agreement and accompanying proxy statement), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). In making its determination regarding the fairness of the Merger Agreement and the Transactions, the Board adopted the fairness analysis and conclusions of the Special Committee.
The Board (other than Mr. Maxwell) unanimously recommends that you vote FOR the adoption of the Merger Agreement.
Your vote is very important, regardless of the number of shares of Common Stock you own. The affirmative vote of the holders of at least a majority of the issued and outstanding shares of Common Stock is required to approve the Merger Agreement. In addition, the Merger Agreement has a non-waivable condition to the parties’ obligations to consummate the Merger that holders of a majority of the issued and outstanding shares of Common Stock (excluding shares of Common Stock (a) held by the Company or any subsidiary of the Company, (b) held or beneficially owned by William Keith Maxwell, III and any person or entity controlled by William Keith Maxwell, III, including Parent and Merger Sub, and (c) held by any member of the Board, any “officer” of the Company (as defined by Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended) and any immediate family members of any of the foregoing individuals) approve the Merger Agreement. If you fail to vote on the adoption of the Merger Agreement, the effect will be the same as a vote “AGAINST” the adoption of the Merger Agreement.
Pursuant to rules of the SEC, you will also be asked to vote at the Special Meeting on (i) a non-binding, advisory proposal to approve certain compensation arrangements for the Company’s named executive officers in connection with the Merger, which requires the affirmative vote of a majority of the shares of Common Stock present or represented by proxy at the Special Meeting and entitled to vote thereon, and (ii) one or more proposals to adjourn the Special Meeting, if necessary or appropriate, including adjournments to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Merger Agreement.

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The Board unanimously recommends that you vote (i) FOR the non-binding, advisory proposal to approve certain compensation arrangements for the Company’s named executive officers in connection with the Merger, and (ii) FOR the proposal to adjourn the Special Meeting, if necessary or appropriate, including an adjournment to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Merger Agreement.
For our shareholders of record, we have enclosed a proxy and voting instruction card and an envelope in which to return the card. Whether or not you plan to attend the Special Meeting, please sign, date and return your enclosed proxy and voting instruction card, or vote over the phone or Internet, as soon as possible so that your shares of Common Stock can be voted at the Special Meeting in accordance with your instructions. You can revoke your proxy before the Special Meeting and issue a new proxy as you deem appropriate. You will find the procedures to follow if you wish to revoke your proxy on page 13 of the enclosed proxy statement.
If you hold your shares of Common Stock in “street name” through a broker, bank or other nominee, you should follow the directions provided by your broker, bank or other nominee regarding how to instruct your broker, bank or other nominee to vote your shares of Common Stock. Without those instructions, your shares of Common Stock will not be voted, which will have the same effect as voting “AGAINST” the adoption of the Merger Agreement.
The accompanying proxy statement provides you with more detailed information about the Special Meeting and the Transactions, including the Merger. A copy of the Merger Agreement is attached as Appendix A to the accompanying proxy statement. We encourage you to carefully read the entire proxy statement and its appendices, including the Merger Agreement and the documents referred to or incorporated by reference in the accompanying proxy statement in their entirety. You may also obtain additional information about the Company from other documents filed with the SEC.
If you have any questions or need assistance voting your shares of Common Stock, please contact the Company’s proxy solicitor in connection with the Special Meeting:
Alliance Advisors, LLC
200 Broadacres Drive, Suite 300
Bloomfield, NJ 07003
Toll-Free: (800) 612-8434
Email: VIA@AllianceAdvisors.com
We look forward to your attendance at the Special Meeting.
Sincerely yours,

Viktoria Aksionava
Acting Secretary
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THE TRANSACTIONS, INCLUDING THE MERGER, PASSED UPON THE MERITS OR FAIRNESS OF THE MERGER AGREEMENT OR THE TRANSACTIONS, INCLUDING THE MERGER, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT OR THE ACCOMPANYING PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The accompanying proxy statement is dated March 28, 2024 and, together with the enclosed form of proxy, and voting instruction card, is first being mailed to holders of shares of Common Stock on March 28, 2024. The enclosed proxy statement is first being mailed to holders of shares of Series A Preferred Stock on March 28, 2024.

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VIA RENEWABLES, INC.
12140 Wickchester Ln., Suite 100
Houston, Texas 77079

NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
NOTICE IS HEREBY GIVEN that a special meeting (the “Special Meeting”) of shareholders of Via Renewables, Inc. (the “Company”) will be held at 10:00 AM, Central Time, on Thursday, May 23, 2024, via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM for the following purposes:
(1)
to consider and vote on a proposal (the “Merger Proposal”) to approve the Agreement and Plan of Merger, dated as of December 29, 2023 (the “Merger Agreement”), by and among the Company, Retailco, LLC, a Texas limited liability company (“Parent”), and NuRetailco LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent (“Merger Sub”);
(2)
to consider and vote on the proposal (the “Compensation Proposal”) to approve, by non-binding, advisory vote, compensation that may become payable to the Company’s named executive officers in connection with the Merger; and
(3)
to consider and vote on a proposal (the “Adjournment Proposal”) to adjourn the Special Meeting from time to time, if necessary or appropriate (as determined in good faith by the Company), to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to obtain the Requisite Company Vote (as defined in the accompanying proxy statement).
William Keith Maxwell, III, the Company’s Chief Executive Officer and Chairman of the Board of Directors (the “Board”), is the owner of Parent and the indirect owner of Merger Sub.
Pursuant to Section 251(c) of the General Corporation Law of the State of Delaware (“DGCL”), all shareholders of record of the Company, whether voting or nonvoting, at the close of business on March 25, 2024 (the “Record Date”), are entitled to notice of the Special Meeting. Only the holders of the Company’s Class A common stock, par value $0.01 per share (the “Class A Common Stock”) and Class B common stock, par value $0.01 per share (the “Class B common Stock” and, together with the Class A Common Stock, the “Common Stock”), as of the close of business on the Record Date, are entitled to vote at the Special Meeting and at any adjournment thereof. All holders of the Common Stock as of the close of business on the Record Date, including holders of record and beneficial owners of Common Stock registered in the “street name” of a bank, broker or other nominee, are invited to attend the Special Meeting via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM. Holders of shares of the Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”) generally have no voting rights and, accordingly, are not entitled to vote on any matters at the Special Meeting, but may attend the Special Meeting via live webcast.
The Board (other than Mr. Maxwell, who abstained and did not attend or participate in the Board meeting), having received the unanimous recommendation of the Board’s Special Transaction Committee (the “Special Committee”) (which excluded Mr. Maxwell and was comprised entirely of independent and disinterested directors), has approved the Merger Agreement and recommends that the shareholders of the Company vote “FOR” the Merger Proposal. Additionally, the Board recommends that the shareholders of the Company vote “FOR” the Compensation Proposal and “FOR” the Adjournment Proposal.
Your vote is very important, regardless of the number of shares of Common Stock you own. The affirmative vote of the holders of at least a majority of the issued and outstanding shares of Common Stock is required to approve the Merger Proposal. In addition, the Merger Agreement has a non-waivable condition to the parties’ obligations to consummate the Merger that holders of a majority of the issued and outstanding shares of Common Stock (excluding shares of Common Stock (a) held by the Company or any subsidiary of the Company,

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(b) held or beneficially owned by William Keith Maxwell, III and any person or entity controlled by William Keith Maxwell, III, including Parent and Merger Sub, and (c) held by any member of the Board, any “officer” of the Company (as defined by Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and any immediate family members of any of the foregoing individuals) approve the Merger Proposal. If you fail to vote on the adoption of the Merger Proposal, the effect will be the same as a vote “AGAINST” the adoption of the Merger Proposal.
Each of the Compensation Proposal and the Adjournment Proposal requires the affirmative vote of the holders of a majority of the shares of Common Stock present, in person or by proxy, and entitled to vote on the matter at the Special Meeting.
If you sign, date and return your proxy and voting instruction card without indicating how you wish to vote, your proxy will be voted in favor of the Merger Proposal, the Compensation Proposal and the Adjournment Proposal. If you fail to attend the Special Meeting or submit your proxy, the effect will be that your shares of Common Stock will not be counted for purposes of determining whether a quorum is present at the Special Meeting and will have the same effect as a vote “AGAINST” the Merger Proposal. However, assuming a quorum is present, failure to attend the Special Meeting or submit your proxy will not affect the Compensation Proposal or the Adjournment Proposal.
You may revoke your proxy at any time before the vote at the Special Meeting by following the procedures outlined in the enclosed proxy statement. If you are a holder of record of Common Stock and wish to attend the Special Meeting and vote at the Special Meeting, you may revoke your proxy and vote at the Special Meeting.
The Merger is described in the accompanying proxy statement, which the Company urges you to read carefully and in its entirety. A copy of the Merger Agreement is included as Appendix A to the accompanying proxy statement.
Even if you plan to attend the Special Meeting, the Company requests that you complete, sign, date and return the enclosed proxy and thus ensure that your shares of Common Stock will be represented at the Special Meeting if you are unable to attend. You also may submit your proxy by using a toll-free telephone number or the Internet. We have provided instructions in the enclosed proxy statement and on the proxy and voting instruction card for using these convenient services.
We will be hosting the Special Meeting via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM. A summary of the information you need to attend the Special Meeting online is provided below:
Any Company shareholder can attend the Special Meeting via live webcast at www.virtualshareholdermeeting.com/VIA2024SM.
Webcast starts at 10:00 AM, Central Time, on Thursday, May 23, 2024;
Company shareholders may vote and submit questions while attending the Special Meeting via live webcast on the Internet; and
Company shareholders need the sixteen-digit control number included on your proxy card to join the Special Meeting.
The enclosed proxy statement is dated March 28, 2024 and, together with the enclosed form of proxy, and voting instruction card, is first being mailed to holders of shares of Common Stock on March 28, 2024. The enclosed proxy statement is first being mailed to holders of shares of Series A Preferred Stock on March 28, 2024.
By order of the Board
Viktoria Aksionava
Acting Secretary

Houston, Texas
March 28, 2024

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APPENDICES
 
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SUMMARY TERM SHEET
This summary highlights selected information from this proxy statement (“Proxy Statement”), related to the merger of Merger Sub with and into Via Renewables, Inc. (the “Merger”) that will result in Mr. Maxwell acquiring all of the Company’s Class A common stock (the “Class A Common Stock”) and Class B common stock (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”). This summary may not contain all of the information that is important to you. To understand the Merger more fully and for a more complete description of the legal terms of the Merger Agreement (as defined below) and the transactions contemplated thereby (the “Transactions”), including the Merger, you should carefully read this Proxy Statement, the appendices to this Proxy Statement and the documents that the Company refers to in this Proxy Statement in their entirety. You may obtain any additional information referred to in this Proxy Statement without charge by following the instructions under the caption “Where Shareholders Can Find More Information.” The Merger Agreement is attached as Appendix A to this Proxy Statement. We encourage you to read the Merger Agreement, which is the legal document that governs the Merger, carefully and in its entirety.
Except as otherwise specifically noted in this Proxy Statement, the “Company,” “we,” “our,” “us” and similar words refer to Via Renewables, Inc., including, in certain cases, the Company’s subsidiaries. Throughout this Proxy Statement, the Company refers to Retailco, LLC as “Parent” and NuRetailco LLC as “Merger Sub” and the Agreement and Plan of Merger, dated December 29, 2023, by and among the Company, Parent and Merger Sub, as it may be amended, supplemented or modified from time to time, as the “Merger Agreement.”
Mr. Maxwell, the owner of Parent and indirect owner of Merger Sub, who is also the Company’s Chief Executive Officer and the Chairman of the board of directors of the Company (the “Board”), Parent, Merger Sub, NuDevco Retail, LLC (“NuDevco Retail”), TxEx Energy Investments, LLC (“TxEx”), Electric HoldCo, LLC (“Electric Holdco”), and NuDevco Retail Holdings, LLC (“NuDevco Retail Holdings”) are collectively referred to throughout this Proxy Statement as the “Maxwell Filing Persons.”
Because the Merger is a “going private” transaction with respect to the Company’s Class A Common Stock, the Company and the Maxwell Filing Persons have filed a transaction statement on Schedule 13E-3 with respect to the Merger (as amended from time to time, the “Schedule 13E-3”) with the Securities and Exchange Commission (the “SEC”). You may obtain additional information about the Schedule 13E-3 under the caption “Where Shareholders Can Find More Information.”
We completed a 1 for 5 reverse stock split on March 21, 2023. All historical share amounts and share prices included herein have been adjusted to reflect this reverse stock split.
The Special Meeting
The special meeting (“Special Meeting”) will be held at 10:00 AM, Central Time, on Thursday, May 23, 2024 via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM.
The Parties to the Merger
Via Renewables, Inc.
The Company is an independent retail energy services company founded in 1999 that provides residential and commercial customers in competitive markets across the United States with an alternative choice for their natural gas and electricity under well-established and well-regarded brands, including Spark Energy, Major Energy, Provider Power, and Verde Energy. Headquartered in Houston, Texas, the Company operated in 20 states and served 103 utility territories as of December 31, 2023.
The Company’s address is 12140 Wickchester Ln, Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
Parent
Parent is a Texas limited liability company formed in 2005. Parent is a holding company and directly and indirectly holds 3,945,000 shares of Class B Common Stock of the Company. Merger Sub is a wholly owned subsidiary of Parent. Mr. Maxwell is the indirect sole owner of Parent.
Parent’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079, and its telephone number is (713) 600-2600.
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Merger Sub
Merger Sub is a newly formed Delaware limited liability company. Merger Sub was formed by Parent solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Mr. Maxwell, through his ownership of Parent, is the sole beneficial owner of Merger Sub.
Merger Sub’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
William Keith Maxwell, III
Although not a direct party to the Merger Agreement, Mr. Maxwell is the Company’s Chief Executive Officer and Chairman of the Board, is the owner and Chief Executive Officer of Parent and the President, Secretary and indirect owner of Merger Sub. Mr. Maxwell also owns approximately 23.2% of the issued and outstanding Class A Common Stock and is the beneficial owner of all the issued and outstanding Class B Common Stock, comprising approximately 65.7% of the issued and outstanding Common Stock. Upon completion of the Merger, Mr. Maxwell will be the beneficial owner of 100% of the common stock of the Surviving Corporation.
Mr. Maxwell’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and his telephone number is (713) 600-2600.
Additionally, although not parties to the Merger Agreement, each of TxEx, Electric Holdco, NuDevco Retail Holdings and NuDevco Retail are affiliates of Mr. Maxwell, Parent and Merger Sub. The address and phone number for each of TxEx, Electric Holdco, NuDevco Retail Holdings and NuDevco Retail is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and the telephone number for each is (713) 600-2600. For additional information regarding TxEx, Electric Holdco, NuDevco Retail Holdings and NuDevco Retail’s ownership of the Company’s securities and relationship with Mr. Maxwell, Parent and Merger Sub and to the Transactions, including the Merger, see “Financing the Merger; Source of Funds” beginning on page 92 of this Proxy Statement and “The Parties to the Merger—Other Maxwell Filing Persons” beginning on page 65 of this Proxy Statement.
The Merger Proposal
You are being asked to consider and vote upon a proposal to approve the Merger Agreement (the “Merger Proposal”). The Merger Agreement provides that, at the Effective Time (as defined in the Merger Agreement and in this Proxy Statement), Merger Sub will be merged with and into the Company, at which time the separate corporate existence of Merger Sub will cease and the Company will continue its corporate existence under Delaware law as the surviving corporation of the Merger, with all of its property, rights, privileges, powers and franchises continuing unaffected by the Merger. The Company, following the Merger, is referred to in this Proxy Statement as the “Surviving Corporation”.
The Merger will become effective (the “Effective Time”) when a certificate of merger with respect to the Merger (the “Certificate of Merger”) has been duly filed with and accepted by the Secretary of State of the State of Delaware or at such other subsequent date or time as Parent and the Company may agree and specify in the Certificate of Merger in accordance with the General Corporation Law of the State of Delaware (“DGCL”).
Merger Consideration
At the Effective Time:
each outstanding share of the Company’s Class A Common Stock will be canceled and converted into the right to receive $11.00 in cash per share, without interest (the “Merger Consideration”) other than: (i) shares of Class A Common Stock held (a) by the Company or any subsidiary of the Company, or (b) held or beneficially owned by Mr. Maxwell and any person or entity controlled by Mr. Maxwell, including Parent, Merger Sub and NuDevco Retail (such shares in (a) and (b), the “Excluded Shares”), and (ii) shares of Class A Common Stock held by any holder of record of Class A Common Stock who did not vote in favor of the Merger Proposal and is entitled to demand and validly demands appraisal of such shares of Class A Common Stock pursuant to, and complies in all respects with, Section 262 of the DGCL (the “Dissenting Shares”);
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all Excluded Shares (other than the shares of Class A Common Stock held or beneficially owned by Mr. Maxwell and any person or entity controlled by Mr. Maxwell, including Parent, Merger Sub and NuDevco Retail (the “Maxwell Shares”)) will be canceled without payment of any consideration thereof;
each Dissenting Share will be canceled and converted into the right to receive payment of such amounts that are payable in accordance with Section 262 of the DGCL and will not have the right to receive the Merger Consideration, unless and until such shareholder loses, waives or withdraws its rights as a dissenting Company shareholder;
each Maxwell Share issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation;
each share of Class B Common Stock issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class B Common Stock of the Surviving Corporation;
all of the (i) the outstanding restricted stock units of the Company (the “Company RSUs”), other than the restricted stock units of the Company held by Mr. Maxwell (the “Maxwell RSUs”), all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs, and (ii) Maxwell RSUs will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Maxwell RSUs, be canceled and extinguished, and no consideration will be delivered or deliverable therefor;
each share of the Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”) issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as preferred stock of the Surviving Corporation; and
each share of capital stock of Merger Sub will be converted into and represent one fully-paid and nonassessable share of Class A Common Stock, so that, after the Effective Time, Parent will be the holder of all of the issued and outstanding shares of Class A Common Stock.
Conditions to the Merger
The obligations of the Company, Parent and Merger Sub to effect the Merger are subject to the fulfillment or waiver (except as noted below), at or before the Effective Time, of certain conditions including, among others, that:
the holders of a majority of the issued and outstanding shares of Common Stock vote in favor of the Merger Proposal (the “Company Shareholder Approval”); and
as a non-waivable condition, the holders of a majority of the issued and outstanding shares of Common Stock, other than (a) the Excluded Shares and (b) any shares held by any (i) member of the Board, (ii) any “officer” of the Company (as defined by Rule 16a-1(f) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)) and (iii) any immediate family members of any of the foregoing individuals (such shares in (b) being referred to as the “Insider Shares”) (the “Majority of the Minority Shareholder Approval”).
The foregoing voting requirements are collectively referred to as the “Requisite Company Vote.” Additional conditions to the Merger are listed in the section entitled “The Merger Agreement—Conditions to the Merger” beginning on page 92.
Financing the Merger; Source of Funds
The Merger is not subject to any financing condition, and the Maxwell Filing Persons intend to fund the amount needed for the Merger Consideration from a Credit Agreement and Guaranty dated as of August 15, 2023 (the “Credit Facility”) by and among Parent, TxEx, and NuDevco Retail, as Borrowers (the “Borrowers”); and
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Mr. Maxwell, Electric Holdco, and NuDevco Retail Holdings, as Guarantors (the “Guarantors”); Woodforest National Bank, a national banking association, as administrative agent, lead arranger and sole bookrunner; and Origin Bank, as syndication agent.
The Credit Facility provides for one or more secured term loan borrowings until August 15, 2025. The Borrowers may not borrow, repay, and reborrow term loans under the Credit Facility. Borrowings under the Credit Facility are secured by substantially all property of the Borrowers and the Guarantors, including, among others, (i) any properties encumbered by mortgages in favor of the administrative agent, and (ii) all of TxEx’s equity interests in Parent and Electric Holdco, all of the shares of Class B Common Stock of the Company owned by Parent and NuDevco Retail, all of Electric Holdco’s equity interests in NuDevco Retail Holdings, and all of NuDevco Retail Holdings’ equity interests in NuDevco Retail. All shares of Class B Common Stock of the Company held by Parent and NuDevco Retail are pledged as collateral under the Credit Facility.
Borrowings under the Credit Facility bear interest at varying rates, depending on the type of loan and the rates of designated benchmarks and the applicable Borrower’s election. For all borrowings under the Credit Facility, the applicable Borrower may choose among the following interest rates: (i) for any day, an interest rate equal to the highest of (1) the prime rate in effect on that day, (2) the federal funds effective rate in effect on that day plus 0.5%, and (3) adjusted term SOFR for a one-month interest period plus 1.00%, in each case plus an applicable margin of 3.0%; or (ii) an interest rate equal to adjusted term SOFR plus an applicable margin of 4.0%.
The Credit Facility contains customary covenants relating to the Borrowers and the Guarantors concerning, among other things, investments, dispositions of assets, indebtedness, liens on assets, and dividends and other distributions. The Credit Facility contains customary events of default. If an event of default occurs and is continuing, the lenders may, among other things, terminate their obligations under the Credit Facility and require the Borrowers to repay all amounts thereunder. In addition, in the case of an event of default arising from certain events of bankruptcy, insolvency or reorganization, the lenders’ obligations under the Credit Facility will automatically terminate and all amounts outstanding under the Credit Facility will automatically become due and payable. The Credit Facility will expire on August 15, 2026.
The Borrowers intend to repay the borrowings under the Credit Facility pursuant to its terms. There are no current plans or arrangements to repay the loan aside from those terms and conditions as set forth in the Credit Facility agreement. The Maxwell Filing Persons have no other current alternative financing plans or arrangements in the event the Maxwell Filing Persons are unable to obtain the funds necessary to pay the Merger Consideration from the Credit Facility.
For additional information, see the section entitled “The Merger Agreement—Financing the Merger; Source of Funds” beginning on page 92.
Support Agreement
Parent, Merger Sub, Mr. Maxwell and four other affiliated entities, TxEx, Electric Holdco, NuDevco Retail Holdings, and NuDevco Retail (collectively, the “Subject Shareholders”), are party to a Support Agreement, dated December 29, 2023 (the “Support Agreement”). Among other things, the Support Agreement reflects the Subject Shareholders’ agreement to (i) vote their shares of Common Stock in favor of the approval and adoption of the Merger Agreement and the Transactions, including the Merger, (ii) not exchange their units in Spark HoldCo and shares of Class B Common Stock for shares of Class A Common Stock other than following the closing of the Merger, and (iii) NuDevco Retail will sell its Class B Common Stock to Parent simultaneously with the consummation of the Merger. It also reflects the Subject Shareholders’ agreement to vote against any proposal, offer or submission with respect to a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement). A copy of the Support Agreement is attached as Appendix B to this Proxy Statement.
When the Merger Becomes Effective
The closing of the Merger will take place at the Company’s offices no later than the second business day after the satisfaction or waiver of the conditions to closing provided for in the Merger Agreement (other than any condition that by its nature can only be satisfied by action taken at or immediately prior to the closing of the Merger, but subject to satisfaction of any such condition). The Merger will become effective at the date and time when the Certificate of Merger is duly filed with and accepted by the Secretary of State of the State of Delaware or at such later date and time as may be agreed by the parties to the Merger Agreement in writing and specified in the Certificate of Merger in accordance with the relevant provisions of the DGCL.
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Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger
The purpose of the Merger is to enable the holders of Class A Common Stock (other than the Excluded Shares) to realize the value of their investment in the Company through their receipt of the Merger Consideration, representing a 17.0% premium to the Company’s closing share price on December 29, 2023, the last trading day prior to the announcement of the execution of the Merger Agreement. The Merger Consideration also represents a 19.7% premium to the 30 trading-day volume-weighted average price as of December 29, 2023, and a 36.5% premium to the 60 trading-day volume-weighted average price as of December 29, 2023.
At a meeting held on December 29, 2023, the Special Transaction Committee (the “Special Committee”) determined that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than other than holders of the Excluded Shares and Insider Shares), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions).
At a meeting on December 29, 2023, the Board (excluding Mr. Maxwell, who abstained and did not attend or participate in the Board meeting), accepted the unanimous recommendation of the Special Committee, and determined that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). In making its determination regarding the fairness of the Merger Agreement and the Transactions, the Board adopted the fairness analysis and conclusions of the Special Committee.
The Board (other than Mr. Maxwell, who abstained and did not attend or participate in the Board meeting) recommends that the holders of the Common Stock vote “FOR” the Merger Proposal. For a description of the reasons considered by the Special Committee and the Board for their recommendations, see “Special Factors—Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger” beginning on page 24 of this Proxy Statement. For descriptions of the fairness determinations made by the Special Committee, the Board, Parent, Merger Sub and Mr. Maxwell, see “Special Factors—Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger” beginning on page 24 of this Proxy Statement and “Special Factors—Position of the Maxwell Filing Persons as to Fairness of the Merger” beginning on page 44 of this Proxy Statement.
Opinion of the Special Committee’s Financial Advisor
On December 29, 2023, B. Riley Securities, Inc. (“B. Riley”) rendered to the Special Committee its oral opinion (which was subsequently confirmed in writing by delivery of B. Riley’s written opinion dated December 29, 2023), to the effect that, as of December 29, 2023, and based upon and subject to the qualifications, limitations, assumptions and other matters considered by B. Riley in connection with the preparation of the opinion, the Merger Consideration to be received by the holders of the Class A Common Stock, other than holders of Excluded Shares or Insider Shares, in the Merger pursuant to the Merger Agreement was fair to such holders (other than holders of Excluded Shares or Insider Shares) from a financial point of view.
B. Riley’s opinion was directed to the Special Committee (in its capacity as such) and only addressed the fairness, from a financial point of view, to the holders of Class A Common Stock, other than holders of Excluded Shares or Insider Shares, of the Merger Consideration to be received by such holders in the Merger pursuant to the Merger Agreement and did not address any other aspect or implication of the Merger, the Merger Agreement or any other agreement or understanding entered into in connection with
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the Merger or otherwise. The summary of B. Riley’s opinion in this Proxy Statement is qualified in its entirety by reference to the full text of its written opinion, which is included as Appendix C to this Proxy Statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by B. Riley in preparing its opinion. However, neither B. Riley’s written opinion nor the summary of its opinion and the related analyses set forth in this Proxy Statement is intended to be, and they do not constitute, a recommendation to the Special Committee, the Board, the Company, any security holder of the Company or any other person as to how to act or vote on any matter relating to the Merger or otherwise. See “Special Factors—Opinion of the Special Committee’s Financial Advisor” beginning on page 36.
The Maxwell Filing Persons’ Purposes and Reasons for the Merger; Position of the Maxwell Filing Persons as to Fairness of the Merger
Under the SEC rules governing “going-private” transactions, the Maxwell Filing Persons are affiliates of the Company and, therefore, are required to express their purposes and reasons for the merger and their beliefs as to the fairness of the merger to the unaffiliated shareholders. For a description of the purposes and reasons of the Maxwell Filing Persons for the Merger, and their beliefs as to the fairness of the Merger to the unaffiliated shareholders, see “Special Factors—The Maxwell Filing Persons’ Purposes and Reasons for the Merger” beginning on page 42 of this Proxy Statement and “Special Factors—Position of the Maxwell Filing Persons as to Fairness of the Merger” beginning on page 44 of this Proxy Statement.
Certain Effects of the Merger
If the Merger Agreement is approved by the Requisite Company Vote and the other conditions to the closing of the Merger are either satisfied or waived, Merger Sub will be merged with and into the Company, at which time the separate corporate existence of Merger Sub will cease and the Company will continue its corporate existence under Delaware law as the “Surviving Corporation” of the Merger, with all of the property, rights, privileges, powers and franchises of each of the Company and Merger Sub vesting in the Surviving Corporation, and all debts, liabilities and duties of each of the Company and Merger Sub becoming the debts, liabilities and duties of the Surviving Corporation.
Following the consummation of the Merger, the (a) holders of the Class A Common Stock (other than Parent) will cease to have any ownership interest in the Company, (b) the registration of the Class A Common Stock and the Company’s reporting obligations with respect to the Class A Common Stock under the Exchange Act will be terminated upon application to the SEC and (c) the Class A Common Stock will no longer be listed on any stock exchange or quotation system, including the Nasdaq Global Select Market (“NASDAQ”). The Merger will not have any impact on the registration of the Series A Preferred Stock under the Exchange Act or the continued listing of the Series A Preferred Stock on NASDAQ. Accordingly, the Company expects that it will continue to be subject to the Exchange Act and continue to file reports with the SEC under the Exchange Act.
Interests of the Company’s Directors and Executive Officers in the Merger
In considering the recommendations of the Special Committee and of the Board with respect to the Merger Proposal, you should be aware that, aside from their interests as shareholders of the Company, the Company’s directors and executive officers have interests in the Merger that are different from, or in addition to, those of other shareholders of the Company generally.
Interests of directors (other than Mr. Maxwell) that may be different from or in addition to the interests of the Company’s shareholders generally include:
They (other than Mr. Maxwell) will receive cash payments in exchange for their Company RSUs pursuant to the terms of the Merger Agreement.
The Company’s directors are entitled to continued indemnification and insurance coverage pursuant to the terms of the Merger Agreement, and under existing indemnification agreements.
Parent intends that, in addition to Mr. Maxwell, Amanda Bush, Kenneth Hartwick and Stephen Kennedy will become directors of the Surviving Corporation immediately following consummation of the Merger.
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Interests of executive officers that may be different from or in addition to the interests of the Company’s shareholders generally include:
They (other than Mr. Maxwell) will receive cash payments in exchange for their Company RSUs pursuant to the terms of the Merger Agreement.
The Company’s executive officers as of the Effective Time will continue as executive officers of the Surviving Corporation; and
The Company’s executive officers are entitled to continuing indemnification and insurance coverage pursuant to the terms of the Merger Agreement.
These interests are discussed in more detail in the section entitled “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 49. The Special Committee and the Board were aware of the different or additional interests described herein and considered those interests along with other matters in recommending and/or approving, as applicable, the Merger Agreement and Transactions, including the Merger.
The Go-Shop Period
During the period between the date of the Merger Agreement and January 28, 2024 (the “Go-Shop Period End Date”), the Company and its representatives, acting at the direction and under the supervision of the Special Committee, were permitted to, subject to certain conditions, and did (i) solicit, initiate, propose, encourage and facilitate any discussion or offer that constitutes, or would reasonably be expected to lead to, a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) and (ii) engage in discussions and negotiations with, and furnish certain information regarding the Company and its subsidiaries to, third parties in connection with any Competing Transaction or any inquiry, discussion, offer or request that may lead to a Competing Transaction.
During this period, at the request of the Special Committee, B. Riley contacted 31 strategic buyers and 21 potential financial buyers that the Special Committee, based on the advice of B. Riley, believed could have an interest in reviewing the opportunity and had the financial ability to pursue a potential transaction.
On January 10, 2024, January 18, 2024 and January 26, 2024, the Special Committee held meetings, together with representatives from Jones Walker LLP (“Jones Walker”), outside corporate counsel for the Company, and B. Riley. During these meetings, representatives from B. Riley reported on the status of the go-shop process. During this period, three parties entered into confidentiality agreements with the Company to explore potential Competing Transactions, and were provided access to confidential materials and conducted calls with Company management and representatives of B. Riley. Ultimately, no party submitted a proposal prior to the expiration of the go-shop period on January 28, 2024 (i.e., the Go-Shop Period End Date).
The go-shop covenant provisions are described in more detail in the section entitled “The Merger Agreement—Other Covenants and Agreements—Go-Shop” beginning on page 84. The actions taken during this period and the results thereof are described in more detail in the section entitled “Special Factors—Background of the Merger—The Go-Shop Period” beginning on page 23.
No Solicitation Covenant
Pursuant to the terms of the Merger Agreement, the Company agreed to be subject to certain customary non-solicitation provisions, whereby, among other things, the Company and its subsidiaries have agreed from and after the Go-Shop Period End Date through the end of the Merger Agreement’s term, not to solicit, initiate or knowingly encourage or facilitate, any inquiries or the making of any Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement). However, the Company will be able to (i) engage in negotiations or discussions with (a) any Excluded Party (as defined in the Merger Agreement and in this Proxy Statement) and its representatives or (b) any third party (which may include a third party that the Company engaged with during the Go-Shop Period (as defined in the Merger Agreement and in this Proxy Statement)) and its representatives that, in each case of this clause (b), has, after the Go-Shop Period End Date, made a written proposal for a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) that did not result from a breach of the no solicitation covenant in the Merger Agreement (provided that, the Company may engage in such discussions if and only to the extent that the Special Committee determines, after
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consultation with outside legal counsel and B. Riley, that such Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) constitutes or could reasonably likely to lead to a Superior Proposal (as defined in the Merger Agreement and in this Proxy Statement)) or to clarify and understand the terms of such Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) or as the Special Committee otherwise determines is necessary to satisfy its fiduciary duties or applicable law and (ii) furnish to any such Excluded Party or third party and their representatives non-public information relating to the Company or any of its subsidiaries with such Excluded Party (as defined in the Merger Agreement and in this Proxy Statement) or third party (provided that all such information (to the extent that such information has not been previously provided or made available to Parent) is provided or made available to Parent, as the case may be, promptly (and in any event within two business days) following the time it is provided or made available to such Excluded Party (as defined in the Merger Agreement and in this Proxy Statement) or third party and/or any of their respective representatives).
The non-solicitation provisions are described in more detail in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation Covenant” beginning on page 85.
Termination
The Company (following approval by the Special Committee) and Parent may terminate the Merger Agreement by mutual written consent at any time before the Effective Time, whether prior to or after receipt of the Requisite Company Vote.
In addition, among other situations:
either the Company (following approval by the Special Committee) or Parent may terminate the Merger Agreement if:
any governmental entity having jurisdiction over any party has issued any order, decree, ruling or injunction or taken any other action permanently restraining, enjoining or otherwise prohibiting the consummation of the Merger and/or the other Transactions and such order, decree, ruling or injunction or other action has become final and non-appealable or if there is adopted any law that makes consummation of the Merger and/or the other Transactions illegal or otherwise prohibited;
the Merger has not been consummated by 5:00 PM, Houston time, on July 31, 2024 (the End Date”), provided that this termination right is not available to any party whose breach of any of its obligations under the Merger Agreement has been the primary cause of the failure to consummate the Merger by the End Date;
in the event of a breach by the other party of any representation, warranty, covenant or other agreement contained in the Merger Agreement that (a) would give rise to the failure of a closing condition if it was continuing as of the closing date and (b) cannot be cured by the breaching party or, if capable of being cured, has not have been cured by the breaching party by the earlier of two business days prior to the End Date and thirty calendar days following receipt of written notice to the breaching party stating the non-breaching party’s intention to terminate the Merger Agreement (a “Terminable Breach”); provided, however, that the terminating party is not itself then in Terminable Breach of any representation, warranty, covenant or other agreement contained in the Merger Agreement; or
if the Requisite Company Vote has not been obtained upon a vote at a duly held meeting of the Company’s shareholders, or at any adjournment or postponement thereof; provided, however, that Parent is not permitted to terminate the Merger Agreement if such vote has not been obtained as a result of any of Parent, NuDevco Retail or Mr. Maxwell (or any shares over which they have voting control) failing to vote in favor of the Merger and Transactions.
the Company also may terminate the Merger Agreement (acting upon the unanimous recommendation of the Special Committee) if:
prior to the receipt of the Requisite Company Vote, the Special Committee has made a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement) in connection with a Superior Proposal that Parent has not agreed in writing to participate in;
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prior to the receipt of the Requisite Company Vote, in order to accept a Superior Proposal that Parent, NuDevco Retail or Mr. Maxwell (or their successors) are a party to, and concurrently therewith or promptly thereafter enters into a binding, definitive agreement for such transaction with such parties for the consummation of such Superior Proposal; or
prior to the receipt of the Requisite Company Vote, if the Special Committee has made a Change in Company Recommendation in connection with an Intervening Event (as defined in the Merger Agreement and in this Proxy Statement).
Parent may also terminate the Merger Agreement if:
prior to the receipt of the Requisite Company Vote, and within five business days after the date on which the Special Committee of the Company makes a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement).
For additional information, see “The Merger Agreement—Termination” beginning on page 93.
Termination Fees and Expenses
Except as explicitly provided for in the Merger Agreement, each party is required to pay its own expenses incident to preparing for, entering into and carrying out the Merger Agreement and the consummation of Transactions, whether or not the Merger is consummated. If (i) Parent terminates the Merger Agreement pursuant to a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement) or (ii) the Company terminates the Merger Agreement following its receipt of a proposal the Special Committee determines to be a Superior Proposal (as defined in the Merger Agreement and in this Proxy Statement) or the occurrence of an Intervening Event (as defined in the Merger Agreement and in this Proxy Statement), then the Company is required pay Parent cash in amount equal to the reasonable and documented third party expenses of Parent and Merger Sub incurred in connection with the Merger Agreement, not to exceed $300,000.00 (the “Company Termination Fee”). If (i) Parent or Company terminates the Merger Agreement pursuant to a failure to obtain the Requisite Company Vote, (ii) on or before the date of any such termination a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) has been publicly disclosed and not withdrawn, and (iii) within twelve months after the date of such termination, the Company enters into a definitive agreement with respect to a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement), then the Company is required to pay Parent the Company Termination Fee. In no event will Parent be entitled to receive more than one payment of a Company Termination Fee. For additional information, see “The Merger Agreement—Termination Fees and Expenses” beginning on page 94.
Specific Performance
Under certain circumstances, the Company, Parent and Merger Sub are entitled to specific performance of the terms of the Merger Agreement, in addition to any other remedy at law or equity.
Material U.S. Federal Income Tax Consequences of the Merger
If you are a U.S. holder, the receipt of cash in exchange for the Class A Common Stock pursuant to the terms of the Merger Agreement will generally be a taxable transaction for U.S. federal income tax purposes. You should consult your own tax advisors regarding the particular tax consequences to you of the exchange of Class A Common Stock for the Merger Consideration pursuant to the terms of the Merger Agreement in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws).
Record Date and Quorum
Pursuant to Section 251(c) of the DGCL, all shareholders of record of the Company, whether voting or nonvoting, at the close of business on March 25, 2024 (the “Record Date”), are entitled to notice of the Special Meeting. Only the holders of the Common Stock as of the close of business on the Record Date are additionally entitled to receive notice of and to vote at the Special Meeting. Holders of shares of Series A Preferred Stock generally have no voting rights and, accordingly, are not entitled to vote on any matters at the Special Meeting.
The presence at the Special Meeting via the Internet or by proxy of the holders of a majority of the issued and outstanding shares of Common Stock entitled to vote on the Record Date will constitute a quorum, permitting the Company to conduct its business at the Special Meeting.
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As of the Record Date, 3,232,701 shares of Class A Common Stock were outstanding and entitled to be voted at the Special Meeting and 4,000,000 shares of Class B Common Stock were outstanding and entitled to be voted at the Special Meeting.
Required Votes
Merger Agreement
The parties obligation to consummate the Merger is subject to a non-waivable condition that the Merger Agreement be approved by the Requisite Company Vote, which includes both (i) the approval of the holders of at least a majority of the issued and outstanding shares of Common Stock and (ii) the Majority of the Minority Shareholder Approval. A failure to vote your shares of Common Stock or an abstention from voting or a broker non-vote will have the same effect as a vote “AGAINST” the Merger Proposal.
Compensation Payable to Named Executive Officers in Connection with the Merger; Adjournment
The proposal (which the Company refers to as the “Compensation Proposal”) to approve, by non-binding, advisory vote, compensation that may become payable to the Company’s named executive officers in connection with the Merger and the proposal (the “Adjournment Proposal”) to adjourn the Special Meeting from time to time, if necessary or appropriate (as determined in good faith by the Company), to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to obtain the Requisite Company Vote, requires the affirmative vote of the holders of a majority of the issued and outstanding Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote thereon.
Rights of Appraisal
Under Delaware law, holders of the Class A Common Stock who do not vote in favor of the Merger Proposal, who properly demand appraisal of their shares of Common Stock and who otherwise comply with all of the requirements of Section 262 of the DGCL, will be entitled to seek appraisal for, and obtain payment in cash for the judicially determined fair value of, their shares of Class A Common Stock in lieu of receiving the Merger Consideration if the Merger is consummated (the “appraisal rights”). This value could be more than, the same as, or less than the Merger Consideration. Any holder of Class A Common Stock intending to exercise appraisal rights, among other things, must submit a written demand for appraisal to the Company prior to the vote on the Merger Proposal, must not vote in favor of the Merger Proposal and must otherwise strictly comply with all of the procedures required by Delaware law. The relevant provisions of the DGCL are included as Appendix D to this Proxy Statement. You are encouraged to read these provisions carefully and in their entirety. If you hold your shares of Class A Common Stock through a bank, brokerage firm or other nominee and you wish to exercise appraisal rights, you should consult with your bank, brokerage firm or other nominee to determine the appropriate procedures for the making of a demand by such bank, brokerage firm or nominee for appraisal. The procedures for exercising the right to seek appraisal are complex, and holders of the Class A Common Stock who are considering exercising such rights are encouraged to seek the advice of legal counsel. Failure to strictly comply with these provisions will result in loss of the appraisal rights.
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER
The following questions and answers address briefly some questions you may have regarding the Special Meeting, the Merger Agreement and the Merger. These questions and answers may not address all questions that may be important to you as a shareholder of the Company. Please refer to the more detailed information contained elsewhere in this Proxy Statement, the appendices to this Proxy Statement and the documents referred to or incorporated by reference in this Proxy Statement.
Q:
What will I receive in the Merger?
A:
If the Merger is consummated and assuming you do not elect and properly exercise your appraisal rights in accordance with Section 262 of the DGCL, you will be entitled to receive $11.00 in cash, without interest, for each share of Class A Common Stock that you own. You will not be entitled to receive shares in the Surviving Corporation or in any of Parent or Merger Sub.
Q:
What matters will be voted on at the Special Meeting?
A:
You will be asked to vote on the following proposals:
the Merger Proposal – to approve the Merger Agreement;
the Compensation Proposal – to approve, by non-binding, advisory vote, compensation that may become payable to the Company’s named executive officers in connection with the Merger; and
the Adjournment Proposal – to approve the adjournment of the Special Meeting from time to time, if necessary or appropriate (as determined in good faith by the Company), to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to obtain the Requisite Company Vote.
Q:
How does the Board recommend that I vote?
A:
Following the unanimous recommendation of the Special Committee, the Board recommends that the shareholders of the Company vote “FOR” the Merger Proposal.
The Board also recommends that the shareholders of the Company vote:
“FOR” the Compensation Proposal; and
“FOR” the Adjournment Proposal.
You should read “Special Factors—Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger” beginning on page 24 for a discussion of the factors that the Special Committee and the Board considered in deciding to recommend and/or approve, as applicable, the Merger Proposal. See also “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 49.
Q:
How do I attend the Special Meeting?
A:
The Special Meeting is being held on a virtual-only basis in order to reach the broadest number of shareholders possible and to save costs relative to holding an in-person meeting. You can attend the Special Meeting via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM. The webcast will start at 10:00 AM, Central Time, on Thursday, May 23, 2024. You may vote and submit questions while attending the Special Meeting via live webcast on the Internet. You will need the sixteen-digit control number included on your proxy card in order to be able to enter the Special Meeting.
Q:
What effects will the Merger have on the Company’s Class A Common Stock and Series A Preferred Stock?
A:
The Class A Common Stock is currently registered under the Exchange Act, and is listed on NASDAQ under the symbol “VIA.” If the Merger is consummated, the Class A Common Stock will cease to be publicly traded and will become 100% beneficially owned by Mr. Maxwell.
Following the consummation of the Merger, the registration of the Class A Common Stock and the Company’s reporting obligations with respect to the Class A Common Stock under the Exchange Act will be terminated upon application to the SEC. In addition, upon the consummation of the Merger, the Class A Common Stock will no longer be listed on any stock exchange or quotation system, including the NASDAQ.
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In addition to the Class A Common Stock, the Company’s Series A Preferred Stock is also registered under the Exchange Act, and is listed on the NASDAQ under the symbol “VIASP”. The Merger will not have any impact on the registration of the Series A Preferred Stock under the Exchange Act or the continued listing of the Series A Preferred Stock on NASDAQ. Accordingly, the Company expects that it will continue to be subject to the Exchange Act and continue to file reports with the SEC under the Exchange Act.
Q:
What will happen if the Merger is not consummated?
A:
If the Merger is not consummated for any reason, the holders of the Class A Common Stock will not receive any payment for their shares of Class A Common Stock in connection with the Merger. Instead, the Class A Common Stock will continue to be listed and traded on the NASDAQ.
Q:
What will happen if shareholders do not approve the Compensation Proposal?
A:
The approval of the Compensation Proposal is not a condition to the completion of the Merger. The SEC rules require the Company to seek approval on a non-binding, advisory basis of certain payments that may be made to the Company’s named executive officers in connection with the Merger. The vote on this proposal is an advisory vote and will not be binding on the Company or Parent. If the Merger Proposal is approved by the shareholders of the Company and the Merger is consummated, the Merger-related compensation may be paid to the Company’s named executive officers even if the Compensation Proposal is not approved by the shareholders of the Company.
Q:
What do I need to do now?
A:
We urge you to read this Proxy Statement carefully and, in its entirety, including its appendices and the documents referred to and incorporated by reference in this Proxy Statement, as well as the related Schedule 13E-3, including the exhibits thereto, filed with the SEC, and to consider how the Merger affects you.
If you are a holder of record of Common Stock, you can ensure that your shares of Common Stock are voted at the Special Meeting by submitting your proxy via:
telephone, using the toll-free number listed on your proxy and voting instruction card;
the Internet, at the address provided on your proxy and voting instruction card; or
mail, by completing, signing, dating and mailing your proxy and voting instruction card and returning it in the pre-paid envelope provided.
Most of our shareholders hold their shares through a broker, bank or other nominee rather than directly in their own name. As summarized below, there are some distinctions between shares held of record and shares owned beneficially.
Shareholders of Record. If your shares are registered directly in your name with our transfer agent, you are considered the shareholder of record with respect to those shares, and the notice and any requested proxy materials, including a proxy and voting instruction card, are being sent directly to you.
Beneficial Owners. If your shares are held in a brokerage account or by a bank or other nominee, you are considered the beneficial owner of shares held in “street name,” and the notice will be forwarded to you by your broker or nominee. The broker or nominee is considered the shareholder of record with respect to those shares. If you are a beneficial owner of Common Stock held in street name, you must either direct your broker or other nominee how to vote your Common Stock, or obtain a “legal” proxy from your broker or other nominee to vote in person at the Special Meeting. As the beneficial owner, you have the right to direct your broker how to vote. Beneficial owners that receive the proxy materials by mail should follow the instructions included in the proxy materials to transmit voting instructions. Without those instructions to your broker, bank or other nominee, your shares of Common Stock will not be voted, which will have the same effect as a vote “AGAINST” the Merger Proposal.
Q:
Should I send in my stock certificates or other evidence of ownership now?
A:
No. After the Merger is consummated, you will be sent a letter of transmittal with detailed written instructions for exchanging your shares of Common Stock for the Merger Consideration. If your shares of
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Common Stock are held in “street name” by your broker, bank or other nominee, you may receive instructions from your broker, bank or other nominee as to what action, if any, you need to take to effect the surrender of your “street name” shares of Common Stock in exchange for the per share Merger Consideration. Do not send in your stock certificates now.
Q:
Can I revoke my proxy and voting instructions?
A:
Yes. You can revoke your proxy and voting instructions at any time before your proxy is voted at the Special Meeting. If you are a shareholder of record, you may revoke your proxy by notifying the Company’s Secretary in writing at Via Renewables, Inc., 12140 Wickchester Ln, Ste 100, Houston, Texas 77079, by telephone, the Internet or mail, in each case, dated after the date of the proxy being revoked, or by attending the Special Meeting via live webcast on the Internet and voting at the Special Meeting (but simply attending the Special Meeting will not cause your proxy to be revoked).
Please note that if you hold your shares of Common Stock in “street name” and you have instructed a broker, bank or other nominee to vote your shares of Common Stock, the above-described options for revoking your voting instructions do not apply, and instead you must follow the instructions received from your broker, bank or other nominee to revoke your voting instructions.
Q:
What happens if I sell my shares of Class A Common Stock before completion of the Merger?
A:
If you transfer your shares of Class A Common Stock, you will have transferred your right to receive the Merger Consideration in the Merger. In order to receive the Merger Consideration, you must hold your shares of Class A Common Stock through completion of the Merger.
The Record Date for shareholders entitled to vote at the Special Meeting is earlier than the date on which the Merger will be consummated. So, if you transfer your shares of Class A Common Stock after the Record Date but before the Special Meeting, you will have transferred your right to receive the Merger Consideration pursuant to the terms of the Merger Agreement, but retained the right to vote at the Special Meeting.
Q:
What is householding and how does it affect me?
A:
The SEC permits companies to send a single set of proxy materials to any household where two or more shareholders reside, unless contrary instructions have been received, but only if the applicable company provides advance notice and follows certain procedures. In such cases, each shareholder continues to receive a separate notice of the Special Meeting and proxy card. Certain brokerage firms may have instituted householding for beneficial owners of shares of Common Stock held through brokerage firms. If your family has multiple accounts holding shares of Class A Common Stock, you may have already received a householding notification from your broker. 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:
Who can help answer my other questions?
A:
If you have more questions about the Merger, or require assistance in submitting your proxy or voting your shares of Common Stock or need additional copies of this Proxy Statement or the enclosed proxy and voting instruction card, please contact Alliance Advisors, LLC, who is acting as the proxy solicitation agent and information agent in connection with the Merger.
Alliance Advisors, LLC
200 Broadacres Drive, Suite 300
Bloomfield, NJ 07003
Toll-Free: (800) 612-8434
Email: VIA@AllianceAdvisors.com
If your broker, bank or other nominee holds your shares of Common Stock, you can also call your broker, bank or other nominee for additional information.
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SPECIAL FACTORS
Background of the Merger
The Merger Agreement is the result of negotiations between the Company’s Special Committee, Mr. Maxwell, and their respective legal and financial advisors. The following is a summary description of the background, including principal meetings and deliberations leading up to the announcement of the Merger and the Transactions, and the related “go-shop” process provided by the Merger Agreement. It does not catalogue every meeting of the Special Committee, or every conversation of or among the Special Committee, the Company, Mr. Maxwell and their respective representatives or other parties.
September 2023 Proposal
On September 5, 2023, the Company’s Board received an unsolicited letter (the “September Proposal”) from Mr. Maxwell and the Maxwell Filing Persons proposing to acquire for cash all of the outstanding shares of Class A Common Stock of the Company not then owned by Mr. Maxwell for $10.50 per share in a merger transaction. The September Proposal indicated that the offer price represented a 22% premium to the volume-weighted average price of the Class A Common Stock over the last sixty days of $8.58. Mr. Maxwell and the other Maxwell Filing Persons had no material contacts with the Company or the Company’s Board concerning a merger or acquisition during the two-year period prior to the September Proposal.
The September Proposal indicated an expectation that the Board of Directors of Via Renewables would establish and empower a special committee, consisting solely of disinterested and independent directors, and delegate to the special committee the authority to evaluate and negotiate the September Proposal, including the authority to accept or reject the September Proposal. The September Proposal also indicated an expectation that the special committee would engage independent legal and financial advisors, selected by the special committee, to advise it in connection with evaluating the September Proposal. The September Proposal indicated that it did not create any legally binding or enforceable obligations unless and until a definitive merger agreement was signed, and that Mr. Maxwell’s proposal was subject to obtaining the necessary financing. The September Proposal also indicated that Mr. Maxwell had retained Cokinos Young (“Cokinos”) as it its legal advisors.
On the evening of September 5, 2023, Barbara Clay, an outside attorney for the Company who was copied on the September Proposal, forwarded the September Proposal to Jones Walker. On the evening of September 5, 2023, Ms. Clay and a representative of Jones Walker discussed the need for having a call with Mike Barajas, the Company’s Chief Financial Officer, and Paul Konikowski, the Company’s Chief Operating Officer, to discuss the September Proposal and the overall process for reviewing and responding to Mr. Maxwell.
On the morning of September 6, 2023, Ms. Clay, and Messrs. Barajas and Konikowski, and a representative of Jones Walker had a teleconference call to discuss the September Proposal and the process for responding to Mr. Maxwell, including the formation of a special committee of the Board with the power to review and respond to the September Proposal. The participants on the call agreed to coordinate a call with the three independent members of the Board as soon as their availability permitted.
On September 11, 2023, a call was held with Amanda Bush, Kenneth Hartwick and Stephen Kennedy, representatives of Jones Walker, and Ms. Clay, Mr. Barajas and Mr. Konikowski, to discuss the formation of a special committee and the process to review and respond to the September Proposal. At the meeting, Jones Walker presented an overview of Delaware law applicable when a board receives an acquisition proposal from a controlling stockholder. During that presentation, Jones Walker stressed the importance of obtaining judicial review that would evaluate board decision-making under the business judgment rule, and noted the factors in Kahn v. M&F Worldwide (“Kahn”) needed to obtain business judgment review (including, among other things, that any transaction be conditioned upon approval by a majority of the shares not held by the controlling stockholder (the “majority of the minority voting requirement”)). Jones Walker noted that the September Proposal did not explicitly contain, as a precondition, a majority of the minority vote requirement. Jones Walker noted that any special committee formed to review the September Proposal should understand the risks of, and avoid, economic negotiations with Mr. Maxwell and his representatives prior to resolution of the majority of the minority voting requirement. Jones Walker also provided an overview of the factors needed to ensure a properly constituted and functioning special committee, including that its members be disinterested and independent, the ability to reject any proposal, the ability to independently hire independent legal and financial advisors, the exercise of care in negotiations, and other matters such as cooperation, confidentiality and the role of management in the process. Jones Walker advised that the next step would be for the
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Board to formally establish a special committee, and then for the special committee to engage legal counsel and financial advisors of its choice. Jones Walker noted that it could facilitate the formation of the special committee and engagement of legal and financial advisors, including recommendations of names for potential legal and financial advisors. At the conclusion of the meeting, Jones Walker recommended that the Board should establish a formal special committee, and that the special committee should select independent legal and financial advisors as soon as practicable to assist in the review and response of the proposal.
Following the September 11, 2023 call, independence questionnaires were prepared by Jones Walker and completed by Ms. Bush and Messrs. Hartwick and Kennedy.
By unanimous written consent effective September 11, 2023, the Board established the Special Committee, consisting of Ms. Bush and Messrs. Hartwick and Kennedy, with Ms. Bush serving as Chair of the Special Committee. The Board, based upon questionnaires completed by each of Ms. Bush and Messrs. Hartwick and Kennedy, determined that each of the members had the requisite familiarity with the Company, its business, and the industry in which it operates to analyze the September Proposal or similar transactions with Mr. Maxwell (the “Reviewed Transactions”); had no interest in or connection to the Reviewed Transactions that is different from or in addition to the interests of the Company shareholders generally (other than interests that the Board deems to be not material); satisfied the applicable guidelines for independence under the Nasdaq Stock Market Rules; and would be unbiased in their exploration and review of the Reviewed Transactions. The resolutions specified that the Special Committee had the power and authority to, among other things:
make such exploration and investigation of Reviewed Transactions as the Special Committee deemed appropriate or advisable;
establish, approve, modify, monitor and direct the process and procedures related to the exploration, review and evaluation of Reviewed Transactions and consider whether or not it was fair to and in the best interests of the Company and its shareholders (or any subset of the shareholders of the Company that the Special Committee determined to be appropriate) to proceed with a Reviewed Transaction;
negotiate with counterparties and their respective representatives any element of a Reviewed Transaction;
negotiate the terms of any definitive agreements with respect to a Reviewed Transaction;
if the Special Committee determined that a Reviewed Transaction was fair, advisable and in the best interests of the Company and its shareholders (or any subset of the shareholders of the Company that the Special Committee determines to be appropriate), approve of the Reviewed Transaction;
consider whether there were alternatives to a Reviewed Transaction that would be in the best interests of the Company and its shareholders and explore, review, determine the advisability, evaluate and, if desired, approve the terms and conditions of any such alternatives;
participate in, and/or consult with and advise management with respect to, discussions and negotiations regarding the terms and conditions of a Reviewed Transaction and other communications regarding a Reviewed Transaction; and
consider such other matters as might be requested by the Board, or as the Special Committee deemed necessary or appropriate in order for the Special Committee to fulfill its authorized duties and functions, and make any recommendations to the Board with respect thereto that the Special Committee deemed appropriate.
The resolutions establishing the Special Committee further provided, among other things:
that the Board would not recommend, authorize, approve or otherwise endorse a Reviewed Transaction unless such Reviewed Transaction had been recommended and approved by the Special Committee;
that the Special Committee had the right to consult with such officers or employees of the Company, with such attorneys, and such investment bankers, financial advisors, accountants, auditors or other advisors or providers of services to the Company or its affiliates to the extent that the Special Committee deemed appropriate; and
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that the Special Committee was authorized and empowered to enter into such contracts providing for the retention, compensation, and reimbursement of expenses of such legal and financial advisors and other agents or advisors as the Special Committee deemed necessary or appropriate, and that the Company was authorized and directed to pay all reasonable fees, expenses, and disbursements of such legal counsel and other agents or advisors.
On September 13, 2023, the Special Committee had a meeting to discuss the appointment of legal and financial advisors to the Special Committee. In attendance were the three members of the Special Committee, as well as Viktoria Aksionava, as Acting Secretary. The Special Committee determined to request that Jones Walker represent the Special Committee. The Special Committee also discussed identifying potential financial advisors, and determined to request meeting with KPMG, as well as other financial advisors that may be recommended by Jones Walker.
On September 13, 2023, Ms. Bush, Chair of the Special Committee, made a telephone call to Jones Walker, requesting that Jones Walker represent the Special Committee. Jones Walker agreed, pending finalization of the formal engagement.
On September 14, 2023, the Special Committee held a meeting with representatives of Jones Walker in attendance. At the meeting, the Special Committee and Jones Walker discussed, among other things, the draft engagement letter provided by Jones Walker and Jones Walker’s prior limited representation of Mr. Maxwell in respect of his SEC beneficial ownership filings, which the Special Committee concluded did not preclude Jones Walker from providing objective legal advice to the Special Committee. The Special Committee and Jones Walker also discussed the need and timing of engaging a financial advisor, and the timing and content of an initial outreach to Mr. Maxwell’s counsel, including discussing with such counsel the majority of the minority voting requirement expressed in the Kahn decision. At the conclusion of the meeting, the Special Committee determined to move forward with initial interviews with potential financial advisors KPMG, Stephens, Inc. (“Stephens”) and B. Riley.
On September 19, 2023, a representative of Jones Walker had a telephone call with a representative of Cokinos regarding the September Proposal. On the call, the representative of Jones Walker noted the receipt of the proposal, the formation of the Special Committee and its steps taken towards the engagement of financial advisors. The Jones Walker representative sought clarification on certain items noted in the September Proposal, such as the general merger structure contemplated and the potential impact of the proposed transaction on the Company’s Series A Preferred Stock. The Jones Walker representative also noted that the September Proposal did not contain language conditioning the transaction on a majority of the minority voting requirement, and that Kahn requires the majority of the minority voting requirement prior to engaging in substantive economic negotiations to obtain the benefit of the business judgment standard of review. The Cokinos representative responded that he would revisit the majority of the minority voting requirement with the Maxwell Filing Persons.
On September 20, 2023, Ms. Bush and Mr. Kennedy of the Special Committee held a meeting with representatives of Jones Walker and Stephens present, and Mr. Barajas and Ms. Clay present by invitation. The purpose was to interview Stephens as a potential financial advisor. In advance of the call, Stephens prepared presentation materials highlighting its experience in representing special committees of board of directors.
On September 20, 2023, Ms. Bush and Mr. Kennedy of the Special Committee held a second meeting with representatives of Jones Walker and KPMG present, and Mr. Barajas and Ms. Clay present by invitation. The purpose of the meeting was to interview KPMG as a potential financial advisor.
On September 21 and 22, 2023, a representative of Jones Walker emailed a representative of Cokinos to follow up on the conversation on September 19, 2023, specifically seeking further clarification as to whether Mr. Maxwell would be amenable to revising the September Proposal to include as a mandatory condition the majority of the minority voting requirement. On September 22, 2023, the Cokinos representative replied by email stating that they were still discussing the majority of the minority voting requirement of Kahn, but that they would have an update the following week.
On September 26, 2023, the Special Committee held a meeting with representatives of Jones Walker and B. Riley present, and Mr. Barajas and Ms. Clay present by invitation. The purpose of the meeting was to interview B. Riley as a potential financial advisor. In advance of the meeting, B. Riley prepared materials highlighting its experience in the retail electricity and natural gas industry, as well as its experience in
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representing special committees of boards of directors. The Special Committee noted B. Riley’s prior experience in the retail electricity and natural gas industry compared to the other potential financial advisors involved. The Special Committee directed Jones Walker to contact B. Riley and Stephens to confirm that they did not have any material business relationships with the Company or Mr. Maxwell that would preclude them from providing objective financial advice to the Special Committee, and to obtain information on the costs of engaging B. Riley and Stephens.
On September 26, October 2 and 3, 2023, a representative of Jones Walker emailed a representative of Cokinos to follow up on the conversation on September 19, 2023, continuing to seek clarification as to whether Mr. Maxwell would be amenable to revising the September Proposal to include as a mandatory condition the majority of the minority voting requirement. On October 3, 2023, the Cokinos representative indicated that they did not yet have an update.
On October 4, 2023, Ms. Bush, Chair of the Special Committee, met with Michael Tsang, a representative of Mr. Maxwell, to obtain clarification of the majority of the minority voting requirement and to share the Special Committee’s views on why the condition needed to be included in the September Proposal.
On October 6 and 9, 2023, a representative of Jones Walker emailed a representative of Cokinos to follow up on the conversation on September 19, 2023, continuing to seek clarification as to whether Mr. Maxwell would be amenable to revising the September Proposal to include as a mandatory condition the majority of the minority voting requirement.
On October 10, 2023, after multiple unsuccessful attempts to obtain from Mr. Maxwell and his representatives clarification on the majority of the minority voting requirement, the Special Committee delivered a formal response to the September Proposal. The response summarized current requirements of Delaware law with respect to Kahn, noting the requirement that the majority of the minority voting requirement be included in any proposal ab initio and prior to economic negotiations. The response sought a definitive answer from Mr. Maxwell, the Maxwell Filing Persons and their representatives on whether the September Proposal would be revised to include such a condition, and if not, the rationale for doing so.
On October 12, 2023, a representative of Jones Walker emailed a representative of Cokinos to follow up on the conversation on September 19, 2023 and the letter dated October 10, 2023, continuing to seek clarification as to whether Mr. Maxwell would be amenable to revising the September Proposal to include as a mandatory condition the majority of the minority voting requirement.
On October 17, 2023, the Special Committee held a formal meeting with representatives of Jones Walker and Ms. Clay present by invitation to discuss, among other things, the current status of negotiations with Mr. Maxwell and his representatives, Delaware case law on the majority of the minority voting requirement, and the risk of engaging in substantive economic negotiations before clarification on the majority of the minority voting requirement. Jones Walker also provided an overview of, among other things, fiduciary duties, risks of personal liability of directors, exculpation, indemnification and advancement of expenses, and insurance coverage. The Special Committee determined to continue to have Jones Walker seek from Cokinos clarification of the majority of the minority voting requirement, as well as to take steps to engage B. Riley as a financial advisor, including having Jones Walker negotiate a draft engagement letter with B. Riley.
On October 17, 2023, the Special Committee received a draft engagement letter from B. Riley and, over the subsequent days, commenced reviewing and negotiating the engagement letter and separate accompanying letter disclosing any material business relationships with Mr. Maxwell, the Company and its directors and executive officers.
On October 18 and 19, 2023, a representative of Jones Walker emailed a representative of Cokinos to follow up on the conversation on September 19, 2023 and the letter dated October 10, 2023, continuing to seek clarification as to whether Mr. Maxwell would be amenable to revising the September Proposal to include as a mandatory condition the majority of the minority voting requirement.
On October 19, 2023 at approximately 10:20 AM CT, a representative of Cokinos left a voicemail with a representative of Jones Walker, requesting a return call. At approximately 10:23 AM CT, representatives of each of Jones Walker and Cokinos held a telephone conference, with the Cokinos representative indicating that a revised proposal was forthcoming.
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On October 19, 2023 at approximately 2:51 PM CT, a representative of Cokinos left a voicemail with a representative of Jones Walker indicating the Cokinos representative had questions that he would like to discuss with the representative of Jones Walker.
On October 19, 2023 at approximately 4:01 PM CT, Mr. Maxwell sent a letter to the Company withdrawing the September Proposal.
November 2023 Proposal
On November 15, 2023, the Special Committee received a second unsolicited letter (the “November Proposal”) from Mr. Maxwell and the Maxwell Filing Persons proposing to acquire for cash all of the outstanding shares of Class A Common Stock of the Company not then owned by Mr. Maxwell for $9.00 per share in a merger transaction. The Proposal indicated that the offer price represented a 17% premium to the volume-weighted average price of the Class A Common Stock over the last sixty days of $7.69.
The November Proposal indicated an expectation that the Board of Directors of Via Renewables would establish and empower a special committee, consisting solely of disinterested and independent directors, and delegate to the special committee the authority to evaluate and negotiate the November Proposal, including the authority to accept or reject the November Proposal. The November Proposal also indicated an expectation that the special committee would engage independent legal and financial advisors selected by the special committee to advise it in connection with evaluating the November Proposal. The November Proposal also indicated an expectation that any merger transaction was conditional upon the approval of a majority of the outstanding shares of Via Renewables not controlled by Mr. Maxwell. The November Proposal further indicated that it did not create any legally binding or enforceable obligations unless and until a definitive merger agreement was signed, and that Mr. Maxwell’s proposal was subject to obtaining the necessary financing.
By unanimous written consent effective November 16, 2023, the Board ratified the previously-formed Special Committee, consisting of Ms. Bush and Messrs. Hartwick and Kennedy, with Ms. Bush serving as Chair of the Special Committee. The Board also ratified the prior independence of the members of the Special Committee with respect to the Reviewed Transactions, and the Special Committee’s power and authority to, among other things:
make such exploration and investigation of Reviewed Transactions as the Special Committee deemed appropriate or advisable;
establish, approve, modify, monitor and direct the process and procedures related to the exploration, review and evaluation of Reviewed Transactions and consider whether or not it was fair to and in the best interests of the Company and its shareholders (or any subset of the shareholders of the Company that the Special Committee determined to be appropriate) to proceed with a Reviewed Transaction;
negotiate with counterparties and their respective representatives any element of a Reviewed Transaction;
negotiate the terms of any definitive agreements with respect to a Reviewed Transaction;
if the Special Committee determined that a Reviewed Transaction was fair, advisable and in the best interests of the Company and its shareholders (or any subset of the shareholders of the Company that the Special Committee determines to be appropriate), approve of the Reviewed Transaction (and the Special Committee had the sole authority to approve such Transaction on behalf of the Board without any further action of the Board);
reject the Reviewed Transaction;
consider whether there are alternatives to a Reviewed Transaction that would be in the best interests of the Company and its shareholders and explore, review, determine the advisability, evaluate and, if desired, approve the terms and conditions of any such alternatives;
participate in, and/or consult with and advise management with respect to, discussions and negotiations regarding the terms and conditions of a Reviewed Transaction and other communications regarding a Reviewed Transaction; and
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consider such other matters as may be requested by the Board, or as the Special Committee deemed to be necessary or appropriate in order for the Special Committee to fulfill its authorized duties and functions, and make any recommendations to the Board with respect thereto that the Special Committee deemed appropriate.
The resolutions establishing the Special Committee further provided, among other things:
that the Board would not recommend, authorize, approve or otherwise endorse a Reviewed Transaction unless such Reviewed Transaction had been recommended and approved by the Special Committee;
that the Special Committee had the right to consult with such officers or employees of the Company, with such attorneys, and such investment bankers, financial advisors, accountants, auditors or other advisors or providers of services to the Company or its affiliates to the extent that the Special Committee deemed appropriate; and
that the Special Committee was authorized and empowered to enter into such contracts providing for the retention, compensation, and reimbursement of expenses of such legal and financial advisors and other agents or advisors as the Special Committee deemed necessary or appropriate, and that the Company was authorized and directed to pay all reasonable fees, expenses, and disbursements of such legal counsel and other agents or advisors.
On November 16, 2023, the Special Committee, acting by unanimous written consent, also approved the engagement of B. Riley pursuant to the engagement letter and separate accompanying letter disclosing any material business relationships of B. Riley with Mr. Maxwell, the Company and its directors and executive officers.
On November 17, 2023, a representative of Jones Walker contacted representatives of Cokinos and Mr. Maxwell, for a conference call. On the conference call, representatives of Mr. Maxwell confirmed that the revised letter, including the reference to a majority of the minority voting requirement, was intended to satisfy the framework of Kahn. Jones Walker confirmed in a follow up email with the representatives of Mr. Maxwell and the Maxwell Filing Persons that, as a result of the call, the understanding of the Special Committee was that any transaction arising from the November Proposal would be conditioned on approval of a majority of the outstanding shares of the Company not controlled by Mr. Maxwell (i.e., by satisfying the majority of the minority voting requirement) and that this provision in the November Proposal was added in order to satisfy the particulars of Delaware law (including the Kahn framework) that would allow the Special Committee to avail itself of the benefits of business judgment review. Jones Walker also noted that it is the Special Committee’s understanding that the majority of the minority voting required would be a non-waivable condition that would be in place ab initio, prior to the Special Committee and Mr. Maxwell engaging in substantive economic negotiations. The Jones Walker representative also inquired as to when Mr. Maxwell and his representatives expected to deliver an initial draft of the Merger Agreement.
On November 21, 2023, Ms. Bush, Chair of the Special Committee, had a call with representatives of B. Riley to make introductions with the B. Riley Investment Banking Team and, to discuss, among other things the fairness opinion and go-shop process, discuss Mr. Maxwell’s bid in more detail, discuss the strategy for responding to the bid, and to discuss next steps in the process.
On November 24, 2023, a representative of B. Riley had a call with Mr. Tsang, a representative of Mr. Maxwell, to discuss the November Proposal. During this call, Mr. Tsang indicated that Mr. Maxwell was generally not willing to sell any Common Stock owned by him in any alternative transaction and would not conduct a pre-signing market check.
On November 28, 2023, representatives of Mr. Maxwell and the Maxwell Filing Persons delivered an initial draft of the Merger Agreement to Jones Walker, and Jones Walker began reviewing the initial draft of the Merger Agreement. The initial draft Merger Agreement contemplated a transaction whereby an affiliated entity of Mr. Maxwell would, through a reverse triangular merger structure, acquire all of the Company’s Class A Common Stock that it did not own.
On November 29, 2023, representatives of Jones Walker contacted representatives of Cokinos and Mr. Maxwell and the Maxwell Filing Persons, to seek clarification on certain points and concepts in the initial draft of the
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Merger Agreement, including, among other things, the impact of the transaction on the Company’s Series A Preferred Stock and its continued listing on NASDAQ, certain regulatory approvals and merger steps, and whether or not Mr. Maxwell and the Maxwell Filing Persons had engaged financial advisors.
On November 29, 2023, Ms. Bush, Chair of the Special Committee, had a call with representatives of B. Riley to discuss, among other things a general update on the fairness opinion, the information request list that B. Riley provided to the Company’s management team, and the elements that would be included in B. Riley’s preliminary financial analyses.
On November 30, 2023, representatives of Jones Walker and B Riley had a call to discuss, among other things, the structure and considerations of a go-shop covenant concept to be included in a revised Merger Agreement. Jones Walker and B. Riley discussed, among other things, the need for a go-shop provision because there was not a market check conducted prior to the Company’s receipt of the proposal, and that Mr. Maxwell resisted a pre-signing market check prior to the execution of any definitive agreement, and that based on prior conversations, the Special Committee had indicated that it considered it important to be able to conduct a post-execution market check. Jones Walker and B. Riley also discussed, among other things, certain structural considerations of a go-shop, such as the duration and matching rights.
On December 4, 2023, the Special Committee held a formal meeting with representatives of B. Riley and Jones Walker present to discuss, among other things, the status of B. Riley’s financial analysis and Jones Walker’s review of the initial draft of the Merger Agreement, as well a preliminary overall timeline for a potential transaction. At the meeting, Jones Walker provided an update on the current review of the initial draft of the Merger Agreement, as well as high level summary of key concepts and provisions in the initial draft of the Merger Agreement, such as the addition of a “go-shop” covenant, the voting requirements included in the initial draft, the “no solicitation” covenant provisions and the exceptions thereto, including the concepts of fiduciary out clauses, superior proposals and intervening events, termination rights and termination fees, as well as the representations and warranties regarding the Company being requested by Mr. Maxwell. At the meeting, B. Riley provided an update on the status of its financial analysis, and the likelihood of negotiations with Mr. Maxwell surrounding the price and noting recent factors such as the volatility in the Class A Common Stock price. B. Riley noted that it would expect to have its preliminary financial analysis complete within the next few days. The Special Committee, B. Riley and Jones Walker agreed to reconvene a meeting on December 7, 2023, at which B. Riley would present its preliminary financial analysis and Jones Walker would present recommendations on revisions to the initial draft of the Merger Agreement.
On December 7, 2023, the Special Committee had a formal meeting with representatives of B. Riley and Jones Walker present. Each of B. Riley and Jones Walker provided materials to the Special Committee in advance of the meeting. B. Riley presented its preliminary financial analysis and discussed the different analytical methods it used and potential share prices that might form the basis of a response to Mr. Maxwell (see “—Preliminary Financial Analyses of B. Riley” below for additional information). Jones Walker provided an overview of proposed revisions to the draft Merger Agreement. The overview included revisions to clarify the majority of the minority voting requirement, certain revisions to account for Mr. Maxwell’s insider status and position as Chief Executive Officer of the Company as such would impact representations and warranties and covenants of the Company, as well as the addition of a go-shop covenant provision, including discussions of its duration, the “grandfather clause” (which “grandfather clause” empowered permit the Special Committee to determine that a party that submitted a bona fide proposal during the Go-Shop Period for a Competing Transaction would be deemed an Excluded Party (as defined in the Merger Agreement and this Proxy Statement), and permit the Special Committee to continue to engage in negotiations or discussions with such Excluded Party following the end of the Go-Shop Period), matching rights and its relations to termination provisions. Jones Walker also provided an overview of revisions to the confidentiality provisions, and the exceptions to confidentiality, including the ability of the Special Committee to terminate the agreement and change is vote recommendation, as well as the corresponding definitions for “Competing Transaction,” “Excluded Parties” and “Superior Proposal” in the draft Merger Agreement. At the meeting, the Special Committee weighed the advantages and disadvantages of various approaches to formulating a response (or no response) to the November Proposal. After discussions, the Special Committee determined to make a counterproposal to Mr. Maxwell and the Maxwell Filing Persons. In making this decision, the Special Committee considered not responding to the November Proposal or rejecting the November Proposal without making a counteroffer, but concluded, that after taking into account, among other factors, the revisions to the initial draft Merger Agreement being proposed by
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the Special Committee, that the response would be non-binding, the preliminary financial analysis prepared by B. Riley and the duration and tenor of communications since the September Proposal, that responding with a counterproposal would be in the best interests of the Company and its unaffiliated shareholders. Given the difference between the price per share proposed in the November Proposal and the Special Committee’s preliminary view of potential transaction prices, the Special Committee also determined to make a counteroffer at a specific price rather than a range. The Special Committee accordingly rejected Mr. Maxwell’s $9.00 offer and made a counter-offer of $12.65, with the price being subject to further negotiation and formal approval by the Special Committee. The Special Committee determined to have representatives of B. Riley communicate the rejection and counteroffer to Mr. Tsang, a representative of Mr. Maxwell, following which representatives of Jones Walker would deliver a revised draft of the Merger Agreement. On December 7, 2023, a representative of B. Riley communicated a rejection of the $9.00 offer price and a counteroffer of $12.65 per share to Mr. Tsang, and a representative of Jones Walker delivered a revised draft of the Merger Agreement to representatives of Cokinos and Mr. Maxwell containing the revisions reviewed by the Special Committee.
On December 13, 2023, representatives of Jones Walker had a call with representatives of Cokinos and Mr. Maxwell to review certain provisions of the revised draft of the Merger Agreement. The representatives discussed, among other things, the reorganization transactions contemplated by Parent, revisions to certain defined terms, the treatment of shares of Class A Common Stock held by Mr. Maxwell and restricted stock units held by Mr. Maxwell, certain qualifications to the representations and warranties and covenants related to Mr. Maxwell’s knowledge, the go-shop covenant provision and the termination provisions. The representatives also discussed the timing of when Mr. Maxwell and the Maxwell Filing Persons would deliver an initial draft of the Support Agreement referred to in the draft Merger Agreement, pursuant to which Mr. Maxwell would commit to vote his shares in favor of the transaction and would not otherwise oppose or undermine the transaction.
On December 14, 2023, a representative of Cokinos delivered a first draft of the Support Agreement to Jones Walker.
On December 15, 2023, a representative of Cokinos delivered a revised draft of the Merger Agreement. The revised draft of the Merger Agreement delivered by the Cokinos representative on December 15, 2023 did not contain a proposed transaction price.
On December 17, 2023, representatives of Jones Walker communicated to the Special Committee a summary of revisions in the revised draft of the Merger Agreement provided by Cokinos. On December 18, 2023, representatives of Jones Walker provided a revised draft of the Merger Agreement to the Special Committee.
On December 20, 2023, representatives of Jones Walker returned a revised draft of the Merger Agreement to representatives of Cokinos and Mr. Maxwell. The revised draft of the Merger Agreement did not contain a proposed transaction price.
On December 21, 2023, the Special Committee held a meeting with representatives of B. Riley and Messrs. Barajas and Konikowski and Ms. Clay present by invitation. At the meeting, the attendees discussed, among other things, the financial projection forecast and model, including its assumptions and variables; the Company’s operating environment and strategic plan; the ruling by the Federal Communications Commission (the “FCC”) regarding lead-generation practices and its potential impact on, among other things; customer retention and attrition, state regulatory landscapes and pending regulatory matters; and the Board’s process for reviewing and the likelihood of reinstating dividends on the Class A Common Stock.
On December 21, 2023, a representative of Cokinos provided a further revised draft of the Merger Agreement to representatives of Jones Walker. The further revised draft of the Merger Agreement did not contain a proposed transaction price. Later, on December 21, 2023, representatives of Jones Walker communicated to the Special Committee a summary of revisions in the further revised draft Merger Agreement and a copy of the further revised draft of the Merger Agreement delivered to Jones Walker on the same date.
On December 25, 2023, a representative of Mr. Maxwell communicated to a representative of B. Riley that Mr. Maxwell had agreed to increase his offer price to $10.25 per share of Class A Common Stock.
On December 27, 2023, the Special Committee met with representatives of Jones Walker and B. Riley present to discuss the revised offer price, as well as the draft Support Agreement. At the meeting, representatives of B. Riley reviewed Mr. Maxwell’s offer price of $10.25, including in relation to the preliminary financial analysis discussed with the Special Committee on December 7, 2023, as well as their understanding of the basis of the price of $10.25 and the expectation for additional negotiations. Representatives of Jones Walker provided an
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overview of the draft Support Agreement, including discussions of proposed changes such as a request for a standstill provision. The Special Committee also determined to make a counteroffer with a specific price. The Special Committee accordingly determined to reject Mr. Maxwell’s $10.25 offer and make a counteroffer of $11.45, with the price being subject to further negotiation and formal approval by the Special Committee. Later, on December 27, 2023, Jones Walker delivered a further revised draft of the Merger Agreement and Support Agreement to representatives of Cokinos and Mr. Maxwell containing a counteroffer price of $11.45.
On December 27, 2023, a representative of Mr. Maxwell communicated to a representative of B. Riley that Mr. Maxwell increased offer price to $11.00 per share of Class A Common Stock, indicating an expiration time of December 29, 2023 at 3:00 PM CT and that it was Mr. Maxwell’s final and best offer.
On December 28, 2023, the Special Committee met with representatives of B. Riley and Jones Walker present to discuss Mr. Maxwell’s revised final and best offer of $11.00. At the meeting, the attendees discussed the counteroffer price and timing considerations related to the expiration of the final and best offer. A representative of Jones Walker also provided an overview of the status of the draft Merger Agreement.
On the morning of December 29, 2023, the Special Committee met with representatives of B. Riley and Jones Walker present. At the meeting, at the request of the Special Committee, B. Riley reviewed its updated financial analyses with respect to the Company, the Merger and the $11.00 price offered by Mr. Maxwell.
Jones Walker further presented to the Special Committee the Kahn factors, reviewing each. Jones Walker noted, among other things, that Mr. Maxwell’s revised November Proposal required that both the Special Committee and a majority of the minority shareholders approve the transaction, and that there were no economic negotiations prior to that condition being agreed upon; that the resolutions forming and ratifying the Special Committee find that the members of the Special Committee were independent, which was supported by questionnaires completed by the members and review of relationships; that the Special Committee freely selected both Jones Walker and B. Riley, and that Mr. Maxwell’s proposal, as well as the Special Committee authorizing resolutions, provided authority to reject the transaction. Jones Walker further noted the extensive meeting of the Special Committee to consider Mr. Maxwell’s multiple offers, the advice of financial advisors and legal counsel, meetings with Company management, extensive negotiations with Mr. Maxwell to obtain a higher price and a majority of the minority voting requirement. A representative of Jones Walker also noted the need to ensure a fair, full and accurate disclosure in a proxy statement to be filed for the solicitation of shareholders to vote on the approval of the Merger Agreement.
Jones Walker further highlighted certain deal protection measures for the minority shareholders of the Class A Common Stock, including, but not limited to, the qualifications to the representations and warranties and covenants made by the Company that limit Mr. Maxwell’s remedies and rights to the extent he was constructively aware of a breach; the addition of a go-shop covenant concept, including the “grandfather clause” (which “grandfather clause” empowered the Special Committee to determine that a party that submitted a bona fide proposal during the Go-Shop Period for a Competing Transaction would be deemed an Excluded Party (as defined in the Merger Agreement and this Proxy Statement), and permit the Special Committee to continue to engage in negotiations or discussions with such Excluded Party following the end of the Go-Shop Period) and matching rights that could result in Mr. Maxwell increasing his offer in response to a competing bid; the revisions to the termination provisions in the draft Merger Agreement that limit Mr. Maxwell’s ability to terminate and provide opportunities for the Company to terminate; and that the transaction must be approved by a majority of the minority shareholders. B. Riley then left the call so representatives of Jones Walker could discuss the fairness opinion with the Special Committee, including its negotiation and review process and the opinion’s language.
On the afternoon of December 29, 2023, the Special Committee met with representatives of B. Riley and Jones Walker present. Jones Walker first provided an update on the status of the draft Merger Agreement, noting that Mr. Maxwell had accepted the proposed termination fee. At the request of the Special Committee, representatives of B. Riley rendered its oral opinion to the Special Committee (which was subsequently confirmed in writing by delivery of B. Riley’s written opinion dated December 29, 2023), to the effect that, as of December 29, 2023, and based upon and subject to the qualifications, limitations, assumptions and other matters considered by B. Riley in connection with the preparation of the opinion, the Merger Consideration to be received by the holders of the Class A Common Stock, other than holders of Excluded Shares or Insider Shares, in the Merger pursuant to the Merger Agreement was fair to such holders (other than holders of Excluded Shares
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or Insider Shares) from a financial point of view. Based upon the foregoing, as well potentially positive factors listed below, the safeguards listed below, and the uncertainties risks and potentially negative factors listed below, the Special Committee unanimously determined and approved that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions) (the “Special Committee Determination”).
The Special Committee further recommended (a) that the Board approve the Merger Agreement, the Merger and the Transactions, (b) the Compensation Committee of the Board to take such actions as necessary or appropriate to effect the Transactions, and (c) that the Board submit the Merger Agreement, the Merger and the Transactions to a vote of the Company’s shareholders with a recommendation of the Board that the shareholders (other than the holders of the Excluded Shares and Insider Shares) approve the Merger and the Transactions (the “Special Committee Recommendation”).
On December 29, 2023, at a meeting of the Board immediately following the Special Committee Determination and Special Committee Recommendation, the Board (other than Mr. Maxwell, who abstained and did not attend or participate in the Board meeting), accepted the unanimous recommendation of the Special Committee and determined that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) that the Merger and the Transactions were in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) that it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions) (the “Board Determination”). In making its determination regarding the fairness of the Merger Agreement and the Transactions, the Board adopted the fairness analysis and conclusions of the Special Committee.
Following the Board Determination, effective December 29, 2023, the Company executed the Merger Agreement. On January 2, 2024, the Company issued a press release announcing the execution of the Merger Agreement and filed a Current Report on Form 8-K disclosing the material terms of the Merger Agreement and the transactions contemplated thereby, including the Merger and the Transactions.
The Go-Shop Period
During the period between the date of the Merger Agreement and the Go-Shop Period End Date, the Company and its representatives, acting at the direction and under the supervision of the Special Committee, were permitted to, subject to certain conditions described in the section of this Proxy Statement entitled “The Merger Agreement—Other Covenants and Agreements” beginning on page 84, and did (i) solicit, initiate, propose, encourage and facilitate any discussion or offer that constitutes, or would reasonably be expected to lead to, a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement) and (ii) to engage in discussions and negotiations with, and furnish certain information regarding the Company and its subsidiaries to, third parties in connection with any Competing Transaction or any inquiry, discussion, offer or request that may lead to a Competing Transaction.
On January 10, 2024, January 18, 2024 and January 26, 2024, the Special Committee held meetings, together with representatives from Jones Walker and B. Riley, to discuss the progress of the go-shop process. At the January 10, 2024 Special Committee meeting, representatives from B. Riley provided a status update of the go-shop process and reported to the Special Committee, with representatives of Jones Walker in attendance, that B. Riley had contacted 31 strategic buyers and 21 potential financial buyers that the Special Committee, based on the advice of B. Riley, believed could have an interest in reviewing the opportunity and had the financial ability to pursue a potential transaction. Representatives from B. Riley further reported that as of January 10,
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2024, (i) three of the potential buyers contacted by B. Riley had declined to review the opportunity; (ii) two of the potential buyers that were contacted had entered into confidentiality agreements with the Company to review the opportunity and were provided access to confidential materials and conducted calls with Company management and representatives of B. Riley; (iii) a confidentiality agreement was being negotiated between one party and the Company; and (iv) that no party had submitted a proposal for a Competing Transaction at such time. At the January 18, 2024 Special Committee meeting, representatives from B. Riley provided a status update of the go-shop process and reported to the Special Committee, with representatives of Jones Walker in attendance, that since the January 10, 2024 meeting, (i) five additional potential buyers contacted by B. Riley had declined the opportunity; (ii) the Company had entered into a confidentiality agreement with the additional party which agreement was in the process of being negotiated as discussed at the January 10, 2024 meeting and such potential buyer was provided access to confidential materials and conducted calls with Company management and representatives of B. Riley; and (iii) that no party had submitted a proposal for a Competing Transaction at January 18, 2024. At the January 26, 2024 Special Committee meeting, representatives from B. Riley provided a status update of the go-shop process and reported to the Special Committee, with representatives of Jones Walker in attendance, that since the January 18, 2024 meeting, one of the parties that entered into a confidentiality agreement with the Company had declined the opportunity to submit a proposal for a Competing Transaction and that no party had submitted a proposal for a Competing Transaction at such time. Ultimately, no party submitted a proposal prior to the expiration of the go-shop period on January 28, 2024 (i.e., the Go-Shop Period End Date).
Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger
Following its receipt of the unanimous recommendation of the Special Committee, the Board (other than Mr. Maxwell, who abstained and did not participate or attend the meeting) determined (1) that the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (2) that the Merger and the Transactions were in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (3) that it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (4) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). In making its determination regarding the fairness of the Merger Agreement and the Transactions, the Board adopted the fairness analysis and conclusions of the Special Committee.
The September Proposal and November Proposal (collectively, the “Proposals”) had provided that any transaction arising from the Proposals was expected to be, among other things, evaluated and negotiated, by a Special Committee and that the Special Committee had the authority to reject or approve any transaction. As described in the section entitled “—Background of the Merger,” the Board established the Special Committee effective September 11, 2023, which was ratified and confirmed effective November 16, 2023, and delegated to it the power and authority, among other things, review, evaluate and explore, and, as it determines appropriate, reject or approve any transactions between the Company and Mr. Maxwell.
The Special Committee, acting with the advice and assistance of its independent legal and financial advisors, evaluated and negotiated the Merger Agreement and the Transactions, including the Merger, and after careful consideration, at a meeting held on December 29, 2023, among other things, determined and approved that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, were fair to, and in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) the Merger and the Transactions were in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) it was advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it was advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). The Special Committee further recommended (a) that the Board approve the Merger Agreement, the Merger and the Transactions, (b) the Compensation Committee of the Board to take such actions as necessary or appropriate to effect the Transactions, and (c) that the Board submit the Merger Agreement, the Merger and the Transactions to
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a vote of the Company’s shareholders with a recommendation of the Board that the shareholders (other than the holders of the Excluded Shares and Insider Shares) approve the Merger and the Transactions.
The Special Committee and the Board determined to undertake the Transactions, including the Merger, at December 29, 2023 in response to the Proposals and the price and terms of the Transactions, including the Merger, ultimately negotiated by the Special Committee, among the other information, factors, and considerations set forth and described in this section of the Proxy Statement. The following circumstances, each of which were particular to this time in the Company’s operating history and discussed further in this Proxy Statement, were considered by the Special Committee in its decision to undertake the Transaction:
Mr. Maxwell’s December 28, 2023 offer of $11.00 per share indicated it was his final and best offer with an expiration time of 3:00 PM CT on December 29, 2023. This final offer was made at the conclusion of several rounds of negotiations between representatives of the Special Committee and Mr. Maxwell. The Special Committee believed from the conduct of those negotiations that there was a substantial and credible risk that Mr. Maxwell would not further extend or increase the offer, and that, if the Special Committee rejected the offer, the Transaction, or another transaction with terms comparable or more favorable to those proposed by Mr. Maxwell, might not be available to the Company in the foreseeable future or any other time.
In the view of the Special Committee, after consulting with management and the Special Committee’s financial advisors, there was a substantial risk that the Applicable FCC Rules (as defined below) recently adopted by the FCC could have a material and adverse impact on the Company’s financial performance, with the result that any transaction proposed in the future could be against the backdrop of a less favorable operating environment.
There was considerable uncertainty as to whether and when the Company would have the ability to reinstate the dividend on the Class A Common Stock, which the Board had suspended in April 2023, as a result of the current uncertain regulatory environment in the Electric Reliability Counsel of Texas operating area following winter storm Uri, as well as the recent elevated commodity price environment. The Special Committee considered that continuing risk of dividend uncertainty would be eliminated if the holders of the Class A Common Stock were able to participate in the cash-out Transaction proposed by Mr. Maxwell.
Accordingly, the Board (other than Mr. Maxwell) recommends that you vote “FOR” the Merger Proposal to approve the Merger Agreement at the Special Meeting.
In considering the recommendations of the Special Committee and of the Board with respect to the Merger, you should be aware that, aside from their interests as shareholders of the Company, the Company’s directors and executive officers may have interests in the Merger that are different from, or in addition to, those of other shareholders of the Company generally. These interests are discussed in more detail in the section entitled “—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 49 of this Proxy Statement. The Special Committee and the Board were informed of the different or additional interests described herein and considered those interests along with other matters in recommending and/or approving, as applicable, the Merger Agreement and Transactions, including the Merger.
The Special Committee engaged its own independent legal and financial advisors and received advice throughout the negotiations from its advisors. As the members of the Special Committee are disinterested with respect to the transactions contemplated by the Merger Agreement, and are not affiliated with the Maxwell Filing Persons, are not employees of the Company or any of its affiliates and have no financial interest in the Merger different from, or in addition to the interests of the Company’s unaffiliated shareholders other than their interests described under “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger”, the Special Committee believed that it was independent and could effectively represent the interests of the Company’s shareholders (other than the holders of Excluded Shares and Insider Shares) in negotiating the terms of the Merger Agreement and the transactions contemplated thereby, including the Merger, and in making its decision whether to reject or recommend that the Board approve and declare advisable the Merger Agreement and the transactions contemplated by the Merger Agreement.
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In evaluating the Merger Agreement and the transactions contemplated by the Merger Agreement, and making the decisions, determinations and recommendations described above, the Special Committee and the Board (other than Mr. Maxwell) considered, among other things, based upon the various materials described in the section of this Proxy Statement entitled “Special Factors— Background of the Merger”, and their knowledge and understanding of the Company, the following potentially supportive factors, which are not intended to be exhaustive and are not presented in any relative order of importance:
the current and historical market prices of the Class A Common Stock and the limited trading volume of the Class A Common Stock on the NASDAQ, taking into account the market performance of the Class A Common Stock;
the Company’s enterprise value and adjusted EBITDA multiple relative to other participants in the Company’s industry;
the Company’s business, operations, assets, financial condition, earnings, ownership structure, management, strategy, competitive position, current, historical and projected financial performance and prospects and plans, as well as the associated risks involved in executing its strategic plan and in achieving its forecasted results;
economic and market conditions and trends, as well as the challenges and uncertainty surrounding such conditions and trends, both on a historical and prospective basis, in the near term and the long term, such as:
the nature and risk of the Company’s industry, including anticipated industry trends and changing competitive dynamics, a challenging and potentially adverse regulatory environment, impact of weather events, and marketing opportunities and limitations, particularly in light of the Company’s size and geographic scope;
the potential risks to the Company of continuing to have publicly traded Class A Common Stock, including the risks of market volatility;
the risks and uncertainties relating to the Company’s concentrated stock ownership and capital structure; and
the management forecasts prepared by the Company’s management for, and made available to, the Special Committee and B. Riley;
the beliefs that the Merger Consideration to be paid to the holders of the Class A Common Stock (other than the Excluded Shares and Insider Shares) was more favorable to such holders than the potential value that might result from the pursuant of other alternatives reasonably available to the Company, including the alternative of remaining an independent public company and pursuing the Company’s current strategic plan, and other strategic or financial alternatives that might be undertaken as an independent public company, in light of a number of factors, including the risks and uncertainties associated with those alternatives;
that the Special Committee, with the assistance of its independent financial advisors, had considered alternatives, including continuing to operate the Company on a standalone basis, a sale to an alternative buyer or other potential value creating options, and had considered the risks and uncertainties associated with such alternatives, and formed the view that no other alternatives were reasonably likely to create greater value for the holders of the Class A Common Stock (other than holders of the Excluded Shares and Insider Shares) than the Merger, taking into account the alternatives reasonably available to the Company and the risk of execution, as well as business, competitive, industry and market risks;
the beliefs of the Special Committee and the Board (other than Mr. Maxwell) that, after the extensive negotiations conducted by the Special Committee, with the assistance of experienced independent legal and financial advisors, the Company obtained what it believed to be the best terms and highest price that Mr. Maxwell is willing to pay for the Class A Common Stock;
the all-cash nature of the Merger Consideration and the premium to the market price of the Class A Common Stock of the Company represented by the Merger Consideration;
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that B. Riley rendered to the Special Committee its oral opinion, subsequently confirmed in writing, to the effect that as of December 29, 2023, and based upon and subject to the assumptions, limitations and qualifications and other matters considered in connection with the preparation of such opinion, the Merger Consideration to be received by the holders of Class A Common Stock (other than the holders of the Excluded Shares and Insider Shares), was fair, from a financial point of view, to such holders (other than the holders of the Excluded Shares and Insider Shares);
the reviews undertaken by the Special Committee and the Board (other than Mr. Maxwell) of the Merger Agreement and the structure of the transactions contemplated thereby, including, among others, the specific financial and other terms and conditions set out below;
the terms of the Merger Agreement empowering the Special Committee to engage in the go-shop process for a period of 30 days to seek alternative acquisition proposals that could be superior to the Merger, and which allows the Company, even after the expiration of the Go-Shop Period, to receive alternative acquisition proposals (provided they do not result from a breach in any material respect of the Company’s no-solicitation covenant in the Merger Agreement);
that the Merger Agreement may be terminated, in certain circumstances, including, among others, by the Company acting upon the recommendation of the Special Committee prior to receipt of the Requisite Company Vote (provided, in each case, that the Company has complied with its obligations under the Merger Agreement):
if the Special Committee has made a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement) in connection with a Superior Proposal (as defined in the Merger Agreement and in this Proxy Statement) in which Parent has not agreed in writing to participate in;
to accept a Superior Proposal that Parent, NuDevco Retail or Mr. Maxwell (or their successors) are a party to, and concurrently therewith or promptly thereafter such parties entered into a binding definitive agreement for the consummation of a Superior Proposal; and
if the Special Committee has made a Change in Company Recommendation because of an Intervening Event (as defined in the Merger Agreement and in this Proxy Statement);
that the Special Committee may, in certain circumstances, make a Change in Company Recommendation, including (1) in response to an Intervening Event (as defined in the Merger Agreement and in this Proxy Statement), or (2) in connection with a Superior Proposal, in each case, subject to and in accordance with the terms and conditions of the Merger Agreement;
the likelihood and anticipated timing of the Merger being consummated, based on, among other matters:
the Company’s ability, under circumstances specified in the Merger Agreement, to seek specific performance of Parent’s and Merger Sub’s respective obligations to cause the Merger to be consummated;
the scope of the conditions to completion, including third party approvals; and
the ability to consummate the Merger without the necessity of refinancing the debt under the Company’s Senior Credit Facility (as defined in this Proxy Statement) or redeeming the Series A Preferred Stock;
the terms of the Merger Agreement providing the Company sufficient operating flexibility to conduct its business in the ordinary course until the earlier of the consummation of the Merger or the termination of the Merger Agreement;
the limited scope of the representations, warranties and covenants, and the qualifications and limitations thereto, being made by the Company, Parent and Merger Sub;
the belief of the Special Committee and the Board (other than Mr. Maxwell) that they had been fully informed about the extent to which the interests of Mr. Maxwell in the Merger differ from those of the Company’s other shareholders;
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the history of Mr. Maxwell’s previous investments in and agreements with the Company, including the Subordinated Debt Facility, dated June 30, 2022, by and between Parent, Spark HoldCo and the Company (as described in this Proxy Statement), the termination of the tax receivable agreement by and between Parent, NuDevco Retail and the Company in July 2019, the sale of a customer portfolio to the Company in December 2018, the sale of Perigee Energy to the Company in April 2017, the sale of Major Energy to the Company in August 2016 and the sale of Oasis Power to the Company in July 2015, which the Special Committee viewed as indicative of the Company’s liquidity, growth and capitalization challenges. More particularly, the Special Committee considered the following:
Subordinated Debt Facility – Mr. Maxwell, through Parent, has historically acted as a lender to the Company through the Subordinated Debt Facility, supplementing funds made available to the Company under the Company’s Senior Credit Facility. From time to time the Company has borrowed, subject to the discretion of the Parent, funds under the Subordinated Debt Facility. Although the Subordinated Debt facility was not viewed by the Special Committee or Company as a material source of liquidity, its existence and the occasional borrowings thereunder were viewed as evidence of the potential liquidity and capitalization challenges the Company may face from time to time that are difficult to satisfy by traditional lending arrangements.
Termination of Tax Receivable Agreement – Mr. Maxwell, through Parent and NuDevco Retail, were previously party to a tax receivable agreement (the TRA) that required the Company to pay to Parent and NuDevco Retail 85% of the net cash savings, if any, in U.S. federal, state and local income tax or franchise tax that the Company realized as a result of its capitalization structure as an umbrella partnership c-corporation. Parent and NuDevco Retail had previously granted the Company the right to defer certain payments the Company was obligated to make under the TRA. In July 2019, Parent and NuDevco Retail agreed, in exchange for a payment of approximately $11.2 million, to a full and complete termination of any further payment, reimbursement or performance obligation under the TRA, whether past, accrued or yet to arise, which relieved the Company of future payments under the TRA. Prior to the termination, as of March 31, 2019, the Company had a total liability related to the TRA of $27.6 million. The Special Committee considered that the termination of the TRA, similar to the Subordinated Debt Facility, was past evidence of support from Mr. Maxwell which was evidence of overall liquidity and capitalization challenges.
Acquisition Support – Mr. Maxwell formed National Gas & Electric, LLC (NG&E) for the purpose of purchasing retail energy companies and retail customer books that NG&E would make suitable for resale and then often present to the Company for possible purchase. Historical transactions with NG&E and Mr. Maxwell included the Company purchasing a customer portfolio in December 2018, the Company purchasing Perigee Energy in April 2017, Major Energy in August 2016 and Oasis Power in July 2015, all of which supported the Company’s RCE growth and retention. The Special Committee considered that this relationship has historically provided the Company with a unique opportunity to leverage the expertise and work of NG&E, giving the Company access to opportunities that may not have otherwise been available due to the Company’s size and constraints on the availability of capital, which assisted the Company’s growth efforts. The Special Committee further considered that parties other than Mr. Maxwell and NG&E may be less receptive to the Company’s Common Stock or other securities as acquisition consideration, which was historically a significant portion of the consideration in transactions with Mr. Maxwell, which the Special Committee considered as further evidence of potential growth and capitalization challenges.
that the Merger Agreement is subject to adoption by the affirmative vote of holders of (1) a majority of the issued and outstanding shares of Common Stock and (2) a majority of the issued and outstanding shares of Common Stock other than the Excluded Shares and Insider Shares;
that the Support Agreement requires Parent to cause all shares of Common Stock held by Mr. Maxwell and his affiliates to be voted in favor of the approval and adoption of the Merger Agreement and the Merger; and
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the right of each Company shareholder to exercise statutory appraisal rights under Section 262 of the DGCL and receive payment of the fair value of such shareholder’s shares of Common Stock in lieu of the Merger Consideration, subject to and in accordance with the terms and conditions of the Merger Agreement and the DGCL, unless and until any such shareholder fails to perfect or effectively withdraws or loses such shareholder’s rights to appraisal and payment under the DGCL.
In evaluating the Merger Agreement and the transactions contemplated by the Merger Agreement, and making the decisions, determinations and recommendations described above, the Special Committee and the Board (other than Mr. Maxwell) considered, among other things, a number of procedural safeguards that they believed were and are present to ensure the fairness of the Merger Agreement and the transactions contemplated by the Merger Agreement, and to permit the Special Committee to represent effectively the interests of the Company’s shareholders (other than the holders of Excluded Shares and Insider Shares). These procedural safeguards include, among other things, the following, which are not intended to be exhaustive and are not presented in any relative order of importance:
that the Special Committee consists entirely of directors who are independent (i.e., not affiliated with the Maxwell Filing Persons, not employees of the Company or any of its affiliates and without a financial interest in the Merger different from, or in addition to the interests of the Company’s unaffiliated shareholders other than their interests described under “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger”);
that the members of the Special Committee are disinterested with respect to the transactions contemplated by the Merger Agreement and had no financial interest in the Merger different from, or in addition to, holders of Class A Common Stock, except as disclosed in this Proxy Statement;
that the compensation paid to the members of the Special Committee was not contingent on their approving the Merger Agreement;
that the Special Committee retained and was advised by its own experienced and independent legal and financial advisors;
that the Special Committee was specifically delegated by the Board with the power and authority, to among other things, review, evaluate and explore, and, as it determines appropriate, reject or approve any transactions between the Company and Mr. Maxwell and alternative transactions;
that the Special Committee had no obligation to recommend any transaction, including a transaction with Mr. Maxwell, and that the Special Committee had the authority to reject any proposals made by Mr. Maxwell;
that the Special Committee, together with its independent financial and legal advisors, conducted a process involving deliberations at several meetings over multiple months to consider the Merger Agreement and the Transactions, and, in each case, each member of the Special Committee was actively engaged in that process on a regular basis and had full access to the Company’s management and its advisors in connection with the evaluation process;
the consummation of the Transactions is subject to receipt the Requisite Company Vote;
that the terms of the Merger Agreement, including the Merger Consideration, were the product of extensive negotiations between the Special Committee and its legal advisors, on the one hand, and Mr. Maxwell, Parent, Merger Sub and their respective affiliates and legal advisors, on the other hand, that resulted, among other things, in an increase in the Merger Consideration over the course of negotiations, and the improvement, from the perspective of the Company, of other terms of the Merger and the Merger Agreement, including the addition of the Majority of the Minority Shareholder Approval condition;
the various terms of the Merger Agreement that are intended to maximize the potential for the Company’s shareholders to receive the highest price per share reasonably available, including:
the Special Committee was permitted to conduct through its financial advisors the go-shop process for a period of 30 days to seek alternative acquisition proposals that could be superior to the
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Merger, and which allows the Company, even after the end of the Go-Shop Period, to receive alternative acquisition proposals (provided they do not result from a breach in any material respect of the Company’s no-solicitation covenant in the Merger Agreement);
that the Merger Agreement may be terminated, in certain circumstances, including, among others, by the Company acting upon the recommendation of the Special Committee prior to receipt of the Requisite Company Vote (provided, in each case, that the Company has complied with its obligations under the Merger Agreement):
if the Special Committee has made a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement) in connection with a Superior Proposal in which Parent has not agreed in writing to participate in;
to accept a Superior Proposal that Parent, NuDevco Retail or Mr. Maxwell (or their successors) are a party to, and concurrently therewith or promptly thereafter such parties entered into a binding definitive agreement for the consummation of a Superior Proposal;
if the Special Committee has made a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement) in connection with an Intervening Event;
that the Special Committee may, in certain circumstances, make a Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement), including (1) in response to an Intervening Event (as defined in the Merger Agreement and in this Proxy Statement), or (2) in connection with a Superior Proposal, in each case, subject to and in accordance with the terms and conditions of the Merger Agreement;
that the Special Committee made its evaluation of the Merger Agreement and the transactions contemplated thereby, including the Merger, based upon the factors discussed herein and with the full knowledge of the interests of Mr. Maxwell in the Merger; and
that the Series A Preferred Stock will remain outstanding, and that shareholders could use the Merger Consideration to maintain a continuing interest in the Company by purchasing Series A Preferred Stock.
In evaluating the Merger Agreement and the transactions contemplated by the Merger Agreement, and making the decisions, determinations and recommendations described above, the Special Committee and the Board (other than Mr. Maxwell) also considered, among other things, certain countervailing factors, including the following uncertainties, risks and other potentially negative factors, which are not intended to be exhaustive and are not presented in any relative order of importance:
that, the receipt of the Merger Consideration, while providing relative certainty of value, will not allow the public holders of Class A Common Stock to participate in potential further growth in the Company’s assets, future earnings growth, future appreciation in value of the Class A Common Stock or any future dividends after the Merger;
the risk that the Transactions, including the Merger, may not be consummated in a timely manner or at all, for a variety of reasons, and the consequences thereof, including (1) the potential loss of value to the Company’s shareholders, including the reduction of the trading price of the shares of Class A Common Stock, (2) the potential negative impact on the operations and prospects of the Company, including the risk of loss of key personnel and certain key members of senior management, and (3) the market’s perception of the Company’s prospects could be adversely affected if such transactions were delayed or were not consummated;
the possible effects of the pendency or consummation of the Transactions, including the potential for suits, actions or proceedings in respect of the Merger Agreement or the Transactions, the risk of any loss or change in the relationship of the Company and its subsidiaries with their respective employees, agents, customers and other business relationships, and any possible effect on the Company’s ability to attract and retain key employees, including that certain key members of senior management might choose not to remain employed with the Company prior to the completion of the Merger;
the risk of incurring substantial expenses related to the Merger, including in connection with any litigation that may arise in the future;
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that the Company’s directors, officers and employees have expended and will expend extensive efforts attempting to consummate the Transactions and such persons have experienced and will likely continue to experience significant distractions from their work during the pendency of such transactions and that the Company has incurred and will incur substantial costs in connection with such Transactions, even if such Transactions are not consummated;
that the receipt of the Merger Consideration in exchange for shares of Class A Common Stock pursuant to the terms of the Merger Agreement will be a taxable transaction for U.S. federal income tax purposes;
the restrictions imposed by the Merger Agreement on the Company’s solicitation of potential alternative acquisition proposals, and that potential alternative buyers may perceive Mr. Maxwell’s right under the Merger Agreement to negotiate with the Company to match the terms of any Superior Proposal prior to the Company being able to terminate the Merger Agreement and accept a Superior Proposal to be a deterrent to making alternative proposals;
that Mr. Maxwell’s existing controlling ownership interest in the Company, and the absence of any obligation by Mr. Maxwell to accept any Superior Proposal, could deter certain third parties from submitting a competing proposal, and in any event would likely be taken into account by third parties considering whether to make alternative proposals or make any additional bids in response to a matching bid by Mr. Maxwell;
that the Support Agreement provides that Mr. Maxwell and his affiliates will not vote in favor of a Competing Transaction (as defined in the Merger Agreement and in this Proxy Statement), which could deter certain third parties from submitting a competing proposal, and in any event would likely be taken into account by third parties considering whether to make alternative proposals or make any additional bids in response to a matching bid by Mr. Maxwell;
the understanding that Mr. Maxwell, his affiliates and various executive officers and directors have certain interests in the Merger that may be different from, or in addition to, the interests of the public holders of Class A Common Stock; and
the restrictions placed on the conduct of the Company’s business prior to the completion of the Merger pursuant to the terms of the Merger Agreement, which could delay or prevent the Company from undertaking business opportunities that may arise or any other action it would otherwise take with respect to the operations of the Company absent the pending completion of the Merger.
The Special Committee also considered the financial analyses and the opinion of B. Riley, among other factors considered, in reaching its determination as to the fairness of the Merger Agreement and the Transactions. These analyses are summarized below in the sections entitled “—Opinion of the Special Committee’s Financial Advisor” on page 36. As part of making its determination regarding the fairness of the Merger Agreement and the Transactions, the Special Committee relied upon the financial forecasts provided by Company management as described below under “Certain Unaudited Prospective Financial Information” and assumed that such forecasts had been reasonably prepared on bases reflecting the best currently available estimates and judgments of the management of the Company of the financial performance of the Company for the periods indicated therein.
The Special Committee was aware of and discussed rules recently adopted by the FCC pursuant to Federal Communications Commission (FCC 23-107): In the Matter of Targeting and Eliminating Unlawful Text Messages, CG Docket No. 21-402; Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, CG Docket No. 02-278; Advanced Methods to Target and Eliminate Unlawful Robocalls, CG Docket No. 17-59, Second Report and Order, Second Further Notice of Proposed Rulemaking, and Waiver Order (December 13, 2023) (the “Applicable FCC Rules”) that could have an adverse impact on the Company’s financial performance, (ii) that the Projections (as defined in this Proxy Statement) did not take into account the Applicable FCC Rules; and (iii) that projections reflecting Company management’s best estimates with respect to the future financial performance of the Company under the Applicable FCC Rules were not available. The Special Committee considered that any impact of the Applicable FCC Rules would likely be negative and result in a downward revision to the financial forecasts.
The Special Committee and the Board (other than Mr. Maxwell, who did not attend the meeting) concluded that, overall, the potentially positive factors outweighed the uncertainties, risks and potentially negative factors
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relevant to the Merger Agreement and the Transactions, including the Merger. Accordingly, the Special Committee and the Board (other than Mr. Maxwell) determined that the Merger Agreement and the Transactions, including the Merger, were advisable, fair to, and in the best interests of, the Company and the holders of the Common Stock (other than the Excluded Shares or the Insider Shares).
In the course of evaluating the Merger Agreement and the Transactions, and making the decisions, determinations and recommendations described above, the Special Committee and the Board (other than Mr. Maxwell) did not consider the liquidation value of the Company because (1) they considered the Company to be a viable, going concern, (2) they believed that liquidation sales generally result in proceeds substantially less than sales of going concerns, (3) they considered determining a liquidation value to be impracticable given the significant execution risk involved in any breakup of the Company and (4) the Company will continue to operate its business following the Merger. For the foregoing reasons, the Special Committee and the Board (other than Mr. Maxwell) did not consider liquidation value to be a relevant methodology. Further, the Special Committee and the Board (other than Mr. Maxwell) did not consider net book value, which is an accounting concept, as a factor because they believe that net book value is not a material indicator of the value of the Company as a going concern but rather is indicative of historical costs and because net book value does not take into account the prospects of the Company, market conditions, trends in the Company’s industry or the business risks inherent in that industry. Rather, the Special Committee believed that the financial analyses presented by B. Riley, as more fully summarized below under “—Opinion of the Special Committee’s Financial Advisor”, which the Special Committee adopted as its own, represented potential valuations of the Company as it continues to operate its business, and, to that extent, the Special Committee collectively characterized such analyses as forms of going concern valuations. The Special Committee considered each of the analyses performed by B. Riley in the context of its fairness opinion as well as various additional factors, as discussed above.
The foregoing discussion is not exhaustive, but is intended to summarize the material information and factors considered by the Special Committee and the Board (other than Mr. Maxwell) in their consideration of the Merger Agreement and the Transactions, including the Merger. The Special Committee and the Board (other than Mr. Maxwell) reached the decision to approve the entry into the Merger Agreement and recommend its adoption by the Company’s shareholders considering the factors described above and other factors that the Special Committee and the Board (other than Mr. Maxwell) believed were appropriate. The Special Committee and the Board (other than Mr. Maxwell) conducted an overall review of the factors described above, including through discussions with the Company’s management and their respective legal advisors and, in the case of the Special Committee, its financial advisor, and considered the factors overall to be favorable to, and to support, their decisions, determinations and recommendations. It should be noted that this explanation of the reasoning of the Special Committee and the Board (other than Mr. Maxwell) and certain information presented in this section is forward-looking in nature and should be read considering the factors set forth in the section entitled “Cautionary Note Regarding Forward Looking Statements” beginning on page 64 of this Proxy Statement.
Neither the Special Committee nor a majority of the independent directors of the Company retained an unaffiliated representative to act solely on behalf of the unaffiliated shareholders for purposes of negotiating the terms of the Merger Agreement and the Transactions (including the Merger). The Special Committee and the independent directors of the Company believe that it was not necessary to retain an unaffiliated representative because the Special Committee was charged with representing the interests of the unaffiliated shareholders and the Company, the Special Committee consisted solely of independent directors, the Special Committee engaged its own financial and legal advisors to act on its behalf and was actively involved in deliberations and negotiations regarding the Merger on behalf of the unaffiliated shareholders.
Certain Unaudited Prospective Financial Information
The Company does not, as a matter of course, publicly disclose forecasts as to future performance, earnings or other results due to the inherent uncertainty, unpredictability and subjectivity of the underlying assumptions, estimates, modeling difficulties and forecasts. Management prepared internal forecasts, which were provided to the Special Committee and B. Riley on December 14, 2023, which included a balance sheet, statement of operations and statement of cash flows, each prepared in accordance with GAAP, and a statement of operations that included non-GAAP financial metrics, as of and for each year ending December 31, 2023 through 2026 (the “Preliminary Projections”). Subsequently, the Company’s management updated the 2025 and 2026 fiscal years in its Preliminary Projections. The updates were to reflect a mix between fixed and variable customers in the 2025 and 2026 years to make them more similar to historical mixes, as well as update the corresponding blended
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unit margin associated with that customer mix. Company’s management also updated the Preliminary Projections to provide actual results for November 2023 rather than projected results. Company’s management provided such updated projections to the Special Committee and B. Riley on December 20, 2023 (the “Final Projections” and, together with the Preliminary Projections, the “Projections”). The Special Committee subsequently directed B. Riley to use and rely only upon the Final Projections for purposes of its opinion to the Special Committee and performing its related financial analysis, as described below under the heading “—Opinion of the Special Committee’s Financial Advisor.” B. Riley did not use or rely upon the Preliminary Projections for purposes of its opinion to the Special Committee and performing its related financial analysis. The Projections are included in this Proxy Statement as Appendix E solely to give the Company’s shareholders access to certain financial forecasts that were made available to the Special Committee and B. Riley. The Projections may not be appropriate for other purposes and are not being included in this Proxy Statement to influence a Company shareholder’s decision whether to vote to approve the Merger Agreement and the other matters described in this Proxy Statement.
The Projections were prepared by the Company’s management for internal use. The Projections were not prepared with a view towards public disclosure or with a view towards complying with GAAP (as detailed below), the published guidelines of the SEC regarding forecasts, the use of non-GAAP financial measures or the guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information, but, in the view of the Company’s management, were prepared on a reasonable basis, reflected the best available estimates and judgments at the time of preparation and presented as of the time of preparation, to the best of the Company’s management’s knowledge and belief, the reasonable forecasts of the future financial performance of the Company. Company management advised B. Riley, and at the Special Committee’s direction B. Riley assumed, that (i) the Applicable FCC Rules could have an adverse impact on the Company’s financial performance, (ii) the Projections did not take into account the Applicable FCC Rules; and (iii) projections reflecting Company management’s best estimates with respect to the future financial performance of the Company under the Applicable FCC Rules were not available.
Neither the Company’s independent auditors, 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 such information or its achievability, and assume no responsibility for, and disclaim any association with, the Projections.
The Projections, while presented with numerical specificity, necessarily were based on numerous inputs, assumptions, outputs and limitations, which are inherently uncertain and many of which are beyond the control of the Company’s management. Specifically, in preparing the Projections, the Company’s management utilized the following material inputs, assumptions, outputs and limitations:
Inputs and Assumptions:
1.
RCE Count – RCE count is a key input in the Projections. An RCE is an industry standard measure of natural gas or electricity usage with each RCE representing annual consumption of 100 MMBtu of natural gas or 10 MWh of electricity. The Projections assume 11,800 RCEs are added each month over the existing customer base through the year ending December 31, 2026, and assumes that additions are 75% residential and 25% commercial, and 60% electric and 40% natural gas. For residential RCEs, the Projections assume an average cost of $130 per RCE across all sales channels, except for brokered commercial contracts. Brokered commercial contracts use a residual payment structure reflected in general and administrative expense.
2.
Customer Attrition – Customer attrition is a key input in the Projections. The Projections assume average monthly attrition in the range of 3%-3.5% of the customer base through the year ending December 31, 2026. The Projections assume an overall growth in RCE count when accounting for attrition.
3.
Revenues – Revenue is a key input in the Projections. The price the Company charges customers for electricity and gas can fluctuate for variable contracts, or under fixed contracts when the fixed term has expired. The Projections base the price the Company charges customers on a weighted average projected commodity cost over the term of the customer contract. The rates the Company charges
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customers are adjusted for expected attrition to project revenues. Revenues were estimated to grow between 4.4% and 6.1% annually during the year ending December 31, 2024, 2025 and 2026, which is consistent with the Company’s projected growth in customer count.
4.
Retail Cost of Revenue – Retail cost of revenue is a key input in the Projections. The Projections calculate retail cost of revenue using forward electricity and natural gas commodity supply curves and the anticipated impact of hedges. Retail cost of revenues were estimated to grow between 4.6% and 6.6% annually during the year ending December 31, 2024, 2025 and 2026, which is consistent with the Company’s projected growth in customer count.
5.
General and Administrative Expense – General and administrative expense (“G&A”) is a key input in the Projections. The Projections assume that G&A expense would reduce by 6.6% in the year ending December 31, 2024 compared to the year ended December 31, 2023, primarily due to some non-recurring legal expenses incurred during the year ended December 31, 2023. The Company also assumed that lead generation sales expenses, which are a component of G&A, would decline during the year ending December 31, 2024 as the Company planned to divert the cost associated with those channels into other organic sales channels for which expense is capitalized rather than included in G&A expense. The Projections assume that during the year ending December 31, 2025, G&A expenses will increase by approximately 3%, and remain consistent in the year ending December 31, 2026 as organic sales channels keep sales flat.
6.
Customer Acquisition Costs – Customer acquisition costs are a key input in the Projections, and show the amount the Company expects to spend for organic sales. The Projections assume an increase in customer acquisition spending by approximately 67%, or $12.5 million, during the year ended December 31, 2024 compared to $7.5 million during the year ended December 31, 2023. Additionally, the Projections assume expenditures of $15 million per year during the years ending December 31, 2025 and 2026.
7.
Interest Expense – Interest expense is a key input in the Projections. The Projections assume that interest expense will be approximately $6.6 million for the year ended December 31, 2024 as compared to $9.3 million for the year ended December 31, 2023.
Outputs:
1.
Adjusted EBITDA – The Projections indicate that forecasted Adjusted EBITDA would grow at an average rate of 6.6% per year during the years ending December 31, 2024, 2025 and 2026.
2.
Gross Margin – The Projections indicate an annual growth rate in gross margin of approximately 4% to 5% annually for the years ending December 31, 2024, 2025 and 2026.
Limitations:
1.
Commodity Price Volatility – The Projections are limited by actual commodity price volatility. The Company’s financial results are largely dependent on the prices at which it can acquire the commodities it resells. The prevailing market prices for natural gas and electricity are unpredictable and tend to fluctuate substantially. Changes in market prices for natural gas and electricity may result from many factors that are incapable of prediction, including:
weather conditions; including extreme weather conditions, seasonal fluctuations, and the effects of climate change;
demand for energy commodities and general economic conditions;
disruption of natural gas or electricity transmission or transportation infrastructure or other constraints or inefficiencies;
reduction or unavailability of generating capacity, including temporary outages, mothballing, or retirements;
the level of prices and availability of natural gas and competing energy sources, including the impact of changes in environmental regulations impacting suppliers;
the creditworthiness or bankruptcy or other financial distress of market participants;
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changes in market liquidity;
natural disasters, wars, embargoes, acts of terrorism and other catastrophic events;
significant changes in the pricing methods in the wholesale markets in which the Company operates;
changes in regulatory policies concerning how markets are structured, how compensation is provided for service, and the kinds of different services that can or must be offered;
federal, state, foreign and other governmental regulation and legislation; and
demand side management, conservation, alternative or renewable energy sources.
2.
Weather – The Projections are limited by variations in weather. Weather conditions directly influence the demand for natural gas and electricity and affect the prices of energy commodities. The Company’s hedging strategy is based on forecasted customer energy usage, which can vary substantially as a result of weather patterns deviating from historical norms.
3.
Legal and Regulatory Environment – The Projections are limited by the legal and regulatory environment. The retail energy industry is highly regulated. Regulations may be changed or reinterpreted, such as the Applicable FCC Rules, and new laws and regulations applicable to the Company’s business could be implemented in the future, which are difficult to predict. Additionally, the Company is subject to lawsuits, claims and regulatory proceedings arising in the ordinary course of business from time to time, which are difficult to predict.
4.
Other Risk Factors – Additional factors that may limit the Projections are set forth in the Company’s Annual Report on Form 10–K for the fiscal year ended December 31, 2023, under the heading “Item 1A. Risk Factors” and “Cautionary Note Regarding Forward Looking Statements.”
Because the Projections cover multiple years, by their nature, they also become subject to greater uncertainty with each successive year. A number of important factors with respect to the Company’s business and the industry in which it participates may affect actual results and result in the Projections not being achieved. For a description of some of these factors, the Company’s shareholders are urged to review the Company’s most recent SEC filings as well as the discussion entitled “Cautionary Note Regarding Forward Looking Statements” and other risk factors described in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. In addition, the Projections may be affected by the Company’s inability to achieve strategic goals, objectives and targets over the applicable period. Accordingly, there can be no assurance that the prospective results are indicative of the future performance of the Company or that actual results will not differ materially from those presented in the Projections.
The inclusion of the Projections in this Proxy Statement should not be regarded as an indication that the Company or any of its affiliates, advisors, officers, directors or representatives considered or considers the Projections to be necessarily predictive of actual future events, and the Projections should not be relied upon as such. Neither the Company nor any of its respective affiliates, advisors, officers, directors or representatives has made or makes any representation to any of the Company’s shareholders or any other person regarding the ultimate performance of the Company compared to the information contained in the Projections or can give any assurance that actual results will not differ materially from the Projections, and none of them undertakes any obligation to update or otherwise revise or reconcile the Projections to reflect circumstances existing after the date the Projections were generated or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the Projections are shown to be in error. The Company does not intend to make publicly available any update or other revision to the Projections, except as otherwise required by law.
The Projections include non-GAAP financial measures, and they were presented because management believed they could be useful indicators of the Company’s projected future operating performance. The Company prepared the Projections on a non-GAAP basis. 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 as used by the Company may not be comparable to similarly titled amounts used by other companies. As used herein, “GAAP” means generally accepted accounting principles in the United States.
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All financial forecasts are forward-looking statements, including the Projections. These and other forward-looking statements are expressly qualified in their entirety by the risks and uncertainties identified above and the cautionary statements contained in the Company’s Annual Report on Form 10-K for the year ended December 31, 2023, and subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. Please consider carefully the discussion entitled “Cautionary Note Regarding Forward Looking Statements” elsewhere in the Proxy Statement.
In light of the foregoing factors and the uncertainties inherent in the Projections, the Company’s shareholders are cautioned not to place undue, if any, reliance on the Projections.
In preparing the Projections for all periods after November 30, 2023, management made a substantial number of assumptions regarding the Company’s financial condition and results of operations. Many of these assumptions were related to historical metrics applied on a mathematically consistent basis, while others reflected what management believed to be reasonable estimates of year-over-year changes in particular line items included in the Projections.
Copies of the Projections are attached to this Proxy Statement as Appendix E and incorporated by reference herein. B. Riley did not use or rely upon the Preliminary Projections for purposes of its opinion to the Special Committee and performing its related financial analysis.
Opinion of the Special Committee’s Financial Advisor
On December 29, 2023, B. Riley rendered to the Special Committee its oral opinion (which was subsequently confirmed in writing by delivery of B. Riley’s written opinion dated December 29, 2023), to the effect that, as of December 29, 2023, and based upon and subject to the qualifications, limitations, assumptions and other matters considered by B. Riley in connection with the preparation of the opinion, the Merger Consideration to be received by the holders of Class A Common Stock, other than holders of Excluded Shares or Insider Shares, in the Merger pursuant to the Merger Agreement was fair to such holders (other than holders of Excluded Shares or Insider Shares) from a financial point of view.
B. Riley’s opinion was directed to the Special Committee (in its capacity as such) and only addressed the fairness, from a financial point of view, to the holders of Class A Common Stock, other than holders of Excluded Shares or Insider Shares, of the Merger Consideration to be received by such holders in the Merger pursuant to the Merger Agreement and did not address any other aspect or implication of the Merger, the Merger Agreement or any other agreement or understanding entered into in connection with the Merger or otherwise. The summary of B. Riley’s opinion in this Proxy Statement is qualified in its entirety by reference to the full text of its written opinion, which is included as Appendix C to this Proxy Statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by B. Riley in preparing its opinion. However, neither B. Riley’s written opinion nor the summary of its opinion and the related analyses set forth in this Proxy Statement is intended to be, and they do not constitute, a recommendation to the Special Committee, the Board, the Company, any security holder of the Company or any other person as to how to act or vote on any matter relating to the Merger or otherwise.
In arriving at its opinion, B. Riley, among other things:
Reviewed the terms of a draft, dated December 28, 2023, of the Merger Agreement;
Reviewed certain publicly available business and financial information related to the Company;
Reviewed certain other information relating to the Company concerning its business, financial condition and operations, made available to B. Riley by the Company, including the Final Projections;
Held discussions with members of senior management of the Company concerning the Merger and the business, financial condition, and strategic objectives of the Company;
Reviewed certain publicly available financial data, stock market performance data and trading multiples of companies B. Riley deemed similar to the Company in one or more respects;
Reviewed the publicly available financial terms of certain other business combinations that B. Riley deemed relevant; and
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Performed such other financial studies, analyses and investigations, and considered such other matters, as B. Riley deemed necessary or appropriate for purposes of rendering its opinion.
In preparing its opinion, at the Special Committee’s direction, B. Riley relied, without assuming responsibility or liability for independent verification, upon the accuracy and completeness of all financial and other information available from public sources and all other information provided to B. Riley or otherwise discussed with or reviewed by B. Riley.
Company management advised B. Riley, and at the Special Committee’s direction B. Riley assumed, that (i) the Applicable FCC Rules could have an adverse impact on the Company’s financial performance, (ii) the Final Projections did not take into account the Applicable FCC Rules; and (iii) projections reflecting Company management’s best estimates with respect to the future financial performance of the Company under the Applicable FCC Rules were not available.
In addition, Company management advised B. Riley and, at the Special Committee’s direction, B. Riley assumed that the Final Projections were reasonably prepared in good faith and represented Company management’s best currently available estimates and judgments with respect to the future financial performance of the Company without taking into account any impact of the Applicable FCC Rules. B. Riley assumed no responsibility for and expressed no view or opinion as to such Final Projections or the assumptions on which they were based. At the Special Committee’s direction, B. Riley used and relied upon such Final Projections for purposes of its analyses and opinion and assumed that such Final Projections provided a reasonable basis upon which to evaluate the Company and the proposed Merger. B. Riley also assumed that there had been no changes in the assets, financial condition, results of operations, business or prospects of the Company since the respective dates of the last financial statements and other information, financial or otherwise, made available to B. Riley that would be material to its analyses or opinion, and that there was no information or any facts or developments that would make any of the information reviewed by B. Riley inaccurate, incomplete or misleading.
B. Riley was not asked to, and did not, undertake any independent verification of any information provided to or reviewed by it, nor was B. Riley furnished with any such verification, and B. Riley did not assume any responsibility or liability for the accuracy or completeness such information. B. Riley did not make an independent evaluation or appraisal of the assets or the liabilities (contingent or otherwise) of the Company, nor did B. Riley evaluate the solvency of the Company under any state or federal laws. B. Riley did not undertake any independent analysis of any pending or threatened litigation, possible unasserted claims or other contingent liabilities to which the Company was a party or may have been subject and its opinion made no assumption concerning, and therefore did not consider, the possible assertion of claims, outcomes or damages arising out of any such matters.
B. Riley also assumed, with the Company’s consent, that (i) in the course of obtaining any regulatory or third party consents or approvals in connection with the Merger, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on the Company or the contemplated benefits of the Merger; (ii) the representations and warranties made by the parties in the Merger Agreement were accurate and complete in all respects; (iii) each party to the Merger Agreement would perform all of its covenants and obligations thereunder; and (iv) the Merger would be consummated in accordance with the terms of the Merger Agreement, without waiver, modification or amendment of any term, condition or provision thereof. B. Riley also assumed that the Merger Agreement, when executed by the parties thereto, would conform to the draft reviewed by B. Riley in all respects material to its analyses and opinion. B. Riley is not a legal, tax or regulatory advisor, and B. Riley relied upon, without independent verification, the assessments of the Special Committee, the Company and their respective legal, tax and regulatory advisors with respect to such matters.
B. Riley’s opinion was limited to the fairness, from a financial point of view, to the holders of Class A Common Stock (in their capacity as holders of Class A Common Stock), other than holders of Excluded Shares or Insider Shares, of the Merger Consideration to be received by such holders (other than holders of Excluded Shares or Insider Shares) in the Merger pursuant to the Merger Agreement, and B. Riley expressed no view or opinion as to (i) the fairness of the Merger to the holders of any other class of securities, creditors or other constituencies of the Company or (ii) the treatment of shares of Class B Common Stock or shares of Series A Preferred Stock of the Company, whether relative to the treatment of the Class A Common Stock or otherwise. B. Riley’s opinion did not address any other aspect or implication of the Merger, the Merger Agreement, or any other agreement or understanding entered into in connection with the Merger or otherwise, including, without limitation, the support agreement to be entered into by certain shareholders of the Company. B. Riley also expressed no view or opinion
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as to the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or any class of such persons, relative to the Merger Consideration or otherwise. B. Riley expressed no view or opinion as to the prices or range of prices at which the Common Stock may trade at any time. Furthermore, B. Riley did not express any opinion as to the impact of the Merger on the solvency or viability of the Company or Parent, or the ability of the Company or Parent to pay its obligations when they become due.
B. Riley’s opinion was necessarily based upon economic, market, monetary, regulatory and other conditions as they existed and could be evaluated, and the information made available to B. Riley, as of the date of its opinion. Although subsequent developments may affect its opinion, B. Riley does not have any obligation to update, revise or reaffirm its opinion.
B. Riley’s opinion was for the information of the Special Committee (in its capacity as such) in connection with its consideration of the proposed Merger. B. Riley’s opinion does not constitute a recommendation to the Special Committee, the Board, the Company, any security holder of the Company or any other person as to how to act or vote on any matter relating to the Merger or otherwise. B. Riley’s opinion did not address the relative merits of the Merger as compared to alternative transactions or strategies that might have been available to the Company or any other party to the Merger, nor did it address the underlying business decision of the Special Committee, the Board, the Company or any other party to effect the Merger.
In preparing its opinion to the Special Committee, B. Riley performed a variety of analyses, including those described below. The preparation of such an opinion is a complex process involving various quantitative and qualitative judgments and determinations with respect to the financial, comparative and other analytical methods employed and the adaptation and application of these methods to the unique facts and circumstances presented. As a consequence, neither B. Riley’s opinion nor its underlying analyses is readily susceptible to summary description. B. Riley arrived at its opinion based on the results of all analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any individual analysis, methodology or factor. While the results of each analysis were taken into account in reaching B. Riley’s overall conclusion with respect to fairness, B. Riley did not make separate or quantifiable judgments regarding individual analyses. Accordingly, B. Riley believes that its analyses and the following summary must be considered as a whole and that selecting portions of its analyses, methodologies and factors, without considering all analyses, methodologies and factors, could create a misleading or incomplete view of the processes underlying B. Riley’s analyses and opinion.
In performing its analyses, B. Riley considered general business, economic, industry and market conditions, financial and otherwise, and other matters as they existed on, and could be evaluated as of, the date of its opinion. No company, transaction or business used in B. Riley’s analyses for comparative purposes is identical to the Company or the proposed Merger and an evaluation of the results of those analyses is not entirely mathematical. The estimates contained in the Final Projections and the implied value reference ranges indicated by B. Riley’s analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by the analyses. In addition, any analyses relating to the value of assets, businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold, which may depend on a variety of factors, many of which are beyond the control of the Company. Much of the information used in, and accordingly the results of, B. Riley’s analyses are inherently subject to substantial uncertainty.
B. Riley’s opinion was only one of many factors considered by the Special Committee in evaluating the proposed Merger. Neither B. Riley’s opinion nor its analyses were determinative of the Merger Consideration or of the views of the Special Committee, the Board or management with respect to the Merger or the Merger Consideration. The type and amount of Merger Consideration payable in the Merger were determined through negotiation between the Company and Parent, and the decision to enter into the Merger Agreement was solely that of the Special Committee and the Board.
Preliminary Financial Analyses of B. Riley
In addition to the financial analyses B. Riley reviewed with the Special Committee on December 29, 2023, described below, B. Riley reviewed preliminary financial analyses with the Special Committee on December 7, 2023. A summary of these preliminary financial analyses is provided below. The following summary, however, is
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not intended to be, and does not constitute, a recommendation to the Special Committee, the Board, the Company, any securityholder of the Company or any other person as to how to act or vote on any matter relating to the Merger or otherwise. In addition, none of the preliminary financial analyses, constitutes, or forms the basis for, an opinion of B. Riley.
The December 7, 2023 preliminary financial analyses included: a preliminary selected companies analysis, a preliminary selected transactions analysis, a preliminary discounted cash flow analysis and a preliminary premiums paid analysis, which were substantially similar to the selected companies analysis, selected transactions analysis, discounted cash flow analysis and premiums paid analysis, respectively, described below under the heading “—Material Financial Analyses,” except the preliminary financial analyses were based on the Preliminary Projections. Also, for purposes of the preliminary discounted cash flow analysis, B. Riley applied terminal value multiples ranging from 4.0x to 5.0x and discount rates ranging from 24.0% to 26.0%.
In addition, the preliminary financial analyses were based on market, economic and other conditions as they existed as of December 7, 2023, as well as other information that was available at those times. Accordingly, the results of the financial analyses differed due to changes in those conditions. Finally, B. Riley continued to refine various aspects of its financial analyses with respect to the Company until December 29, 2023.
Material Financial Analyses
The following is a summary of the material financial analyses performed by B. Riley in connection with the preparation of its opinion and reviewed with the Special Committee on December 29, 2023. The order of the analyses does not represent relative importance or weight given to those analyses by B. Riley. The analyses summarized below include information presented in tabular format. The tables alone do not constitute a complete description of the analyses. Considering the data in the tables below without considering the full narrative description of the analyses, as well as the methodologies underlying, and the assumptions, qualifications and limitations affecting, each analysis could create a misleading or incomplete view of B. Riley’s analyses.
For purposes of its analyses, B. Riley reviewed a number of financial metrics, including:
Enterprise Value — generally, the value as of a specified date of the relevant company’s outstanding equity securities plus the amount of debt outstanding, preferred stock and non-controlling interests, and less the amount of cash and cash equivalents
Adjusted EBITDA — generally, the amount of the relevant company’s earnings before interest, taxes, depreciation and amortization and adjustments for non-recurring items for a specified time period.
Unless the context indicates otherwise, enterprise values and equity values used in the selected companies analysis described below were calculated using the closing price of the Company’s Class A Common Stock and the common stock of the selected companies listed below as of December 28, 2023, and transaction values for the selected transactions analysis described below were calculated on an enterprise value basis based on the value of the equity consideration in the announced transaction and other publicly available information at the time of the announcement. The estimates of the future financial performance of the Company relied upon for the financial analyses described below were based on the Final Projections. The estimates of the future financial performance of the selected companies listed below were based on publicly available research analyst estimates for those companies.
Selected Companies Analysis. B. Riley reviewed certain financial data for selected companies with publicly traded equity securities that B. Riley deemed relevant. The selected companies were chosen because they were deemed similar to the Company in one or more respects, including their retail power marketing and distribution business operations, exposure to underlying energy commodity risks, hedging and trading activities, and overall go-to-market strategies in the energy sector. The financial data reviewed included:
Enterprise Value as a multiple of estimated adjusted EBITDA for the year ending December 31, 2023, or “2023E Adjusted EBITDA”; and
Enterprise Value as a multiple of estimated adjusted EBITDA for the year ending December 31, 2024, or “2024E Adjusted EBITDA.”
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The selected companies and corresponding multiples were:
 
Enterprise Value
 
2023E Adjusted
EBITDA
2024E Adjusted
EBITDA
Eversource Energy
13.0x
11.4x
Vistra Corp.
6.8x
6.2x
Evergy, Inc.
10.5x
9.8x
NRG Energy, Inc.
7.4x
7.0x
OGE Energy Corp.
10.2x
9.9x
Genie Energy Ltd.
NA
NA
“NA” refers to not available.
Taking into account the results of the selected companies analysis, B. Riley applied selected multiple ranges of 3.75x to 6.50x to the Company’s adjusted EBITDA for the last twelve months ended September 30, 2023, 3.75x to 6.00x to the Company’s estimated adjusted EBITDA for the year ending December 31, 2023, and 3.50x to 4.50x to the Company’s estimated adjusted EBITDA for the year ending December 31, 2024. The selected companies analysis indicated implied value reference ranges per share of Class A Common Stock of $9.41 to $30.22 based on the Company’s adjusted EBITDA for the last twelve months ended September 30, 2023, $9.89 to $27.21 based on the Company’s estimated adjusted EBITDA for the year ending December 31, 2023, and $9.48 to $17.61 based on the Company’s estimated adjusted EBITDA for the year ending December 31, 2024, in each case as compared to the Merger Consideration of $11.00 per share of Class A Common Stock in the Merger pursuant to the Merger Agreement.
Selected Transactions Analysis. B. Riley reviewed certain financial terms of certain transactions involving target companies that B. Riley deemed relevant. The selected transactions were chosen because they involved target companies that were deemed similar to the Company in one or more respects, including their retail power marketing and distribution business operations, exposure to underlying energy commodity risks, hedging and trading activities, and overall go-to-market strategies in the energy sector. The financial data reviewed included enterprise value as a multiple of adjusted EBITDA for the last twelve months available prior to the date of announcement, or “LTM Adjusted EBITDA.”
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The selected transactions and corresponding multiples were:
Date
Announced
Target
Acquiror
Enterprise Value /
LTM Adjusted
EBITDA
3/6/2023
Energy Harbor
Vistra Energy Corp.
NA
2/24/2023
South Jersey Industries, Inc.
JP Morgan Asset Mgmt.
16.6x
2/11/2022
Hope Gas, Inc.
Hearthstone Utilities Inc.
NA
9/10/2021
Liberty Power Holdings, LLC
NRG Energy
NA
3/18/2021
The Narragansett Electric Company
PPL Energy Holdings, LLC
18.8x
2/17/2021
Sunstreet Energy Group, LLC
Sunnova Energy Corporation
NA
1/14/2021
Atlantic Power Corporation
I Squared Capital Advisors
6.9x
11/4/2020
Veteran Energy and Infinite Energy
Vistra Energy Corp.
NA
7/24/2020
Direct Energy
NRG Energy
7.9x
4/6/2020
Mankato Energy Center of Xcel Energy
Southwest Generation
NA
11/1/2019
Ambit Energy Holdings, LLC
Vistra Energy Corp.
4.8x
7/15/2019
Crius Energy
Vistra Energy Corp.
7.lx
5/20/2019
Stream Energy
NRG Energy
4.6x
1/4/2019
Lumo Energia
Genie Energy
NA
10/25/2018
Starion Energy, Inc. (60,000 RCE's)
Spark Energy, Inc.
NA
4/9/2018
Dynegy Inc.
Vistra Energy Corp.
10.4x
3/28/2018
Xoom Energy
NRG Energ
4.7x
6/29/2017
MP2 Energy
Shell Energy North America
NA
5/30/2017
U.S. Gas & Electric, Inc.
Crius Energy
4.9x
5/9/2017
Verde Energy
Spark Energy, Inc.
NM
12/31/2016
Engie SA
Unknown Minority Investor
5.4x
11/20/2016
North American Power
Calpine Corp.
NA
10/9/2016
Noble Americas Energy Solutions
Calpine Corp.
5.0x
5/5/2016
Major Energy
Spark Energy, Inc.
NA
5/4/2016
Provider Power
Spark Energy, Inc.
NA
10/1/2015
Champion Energy Marketing, LLC
Calpine Corp.
NA
11/28/2011
DPL Inc.
The AES Corporation
7.6x
10/28/2011
Genie Energy Ltd.
Public Spin-Off
7.5x
8/16/2011
Energy Plus Holdings
NRG Energy
8.5x
4/28/2011
Constellation Energy Group, Inc.
Exelon Corporation
7.3x
9/16/2010
Green Mountain Energy
NRG Energy
5.0x
5/1/2009
Reliant Energy
NRG Energy
NA
NA refers to “Not Available”
NM refers to “Not Meaningful”
Taking into account the results of the selected transactions analysis, B. Riley applied a selected multiple range of 3.75x to 5.75x to the Company’s adjusted EBITDA for the last twelve months ended September 30, 2023. The selected transactions analysis indicated an implied value reference range per share of Class A Common Stock of $9.41 to $24.54, as compared to the Merger Consideration of $11.00 per share of Class A Common Stock in the Merger pursuant to the Merger Agreement.
Discounted Cash Flow Analysis. B. Riley performed a discounted cash flow analysis of the Company based on the Final Projections provided by Company management. B. Riley applied a range of terminal value multiples of 2.5x to 3.5x to the Company’s estimated adjusted EBITDA for the year ending December 31, 2026 and discount rates ranging from 15.0% to 19.0%. The discounted cash flow analysis indicated an implied value reference range per share of Class A Common Stock of $9.28 to $17.90, as compared to the Merger Consideration of $11.00 per share of Class A Common Stock in the Merger pursuant to the Merger Agreement.
Premiums Paid Analysis. B. Riley performed a premiums-paid analysis of the consideration to be received by the holders of Class A Common Stock. For this analysis, B. Riley reviewed the stock price premiums paid in transactions during the last five years on or prior to December 28, 2023 involving all public company targets
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traded on a major U.S. exchange prior to the transaction, which resulted in 462 transactions, and involving public company targets traded on a major U.S. exchange prior to the transaction with a transaction value of less than $500 million, which resulted in 88 transactions. B. Riley calculated the median premiums paid to the target company’s stockholders relative to the target company’s (i) closing share price one day prior to the announcement of the transaction, (ii) one week prior to the announcement of the transaction, (iii) one month prior to the announcement of the transaction, and (iv) three months prior to the announcement of the transaction. The results of these calculations are summarized in the following table:
 
Median Transaction Premium
 
1 Day Prior
1 Week Prior
1 Month Prior
3 Months Prior
All Transactions
22.4%
25.5%
29.7%
35.1%
Transactions with Value Less Than $500 million
34.6%
38.1%
41.9%
38.4%
Taking into account the results of the premiums paid analysis, B. Riley applied the median premiums indicated above to corresponding trading data for the Company as of December 28, 2023, applying the median one-day premium to the closing price of the Class A Common Stock of $9.41 per share as of December 28, 2023, the median one-week premium to closing price of the Class A Common Stock of $9.13 per share one week prior to December 28, 2023, the median one-month premium to the closing price of the Class A Common Stock of $8.80 per share one month prior to December 28, 2023, and the median three-month premium to the closing price of the Class A Common Stock of $7.35 per share three months prior to December 28, 2023. The premiums paid analysis indicated implied value reference ranges per share of Class A Common Stock of $11.52 to $12.66 per share of Class A Common Stock based on the median one-day premium, $11.46 to $12.61 per share of Class A Common Stock based on the median one-week premium, $11.42 to $12.49 per share of Class A Common Stock based on the median one-month premium, and $9.93 to $10.17 per share of Class A Common Stock based on the median three-month premium, in each case as compared to the Merger Consideration of $11.00 per share of Class A Common Stock in the Merger pursuant to the Merger Agreement.
Other Matters
B. Riley acted as financial advisor to the Special Committee in connection with the Merger and is entitled to a transaction fee of $675,000, a substantial portion of which is contingent upon the consummation of the Merger. B. Riley also became entitled to a fee of $350,000 upon the rendering of its opinion to the Special Committee. In addition, the Company has agreed to indemnify B. Riley and certain related parties for certain liabilities arising out of or related to its engagement and to reimburse B. Riley for certain expenses incurred in connection with its engagement. The Board engaged B. Riley based on B. Riley’s knowledge of the Company and its industry. B. Riley is regularly engaged to render financial opinions in connection with mergers, acquisitions, divestitures, leveraged buyouts, and for other purposes.
B. Riley is a full-service securities firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services. In the ordinary course of business, B. Riley and its affiliates may acquire, hold or sell, for its and its affiliates’ own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of the Company, Parent and their respective affiliates. B. Riley and its affiliates may in the future provide investment banking and other financial services to the Company, Parent and their respective affiliates, for which B. Riley and its affiliates would expect to receive compensation. B. Riley has adopted policies and procedures designed to preserve the independence of its research and credit analysts, whose views may differ from those of the members of the team of investment banking professionals advising the Special Committee.
The Maxwell Filing Persons’ Purposes and Reasons for the Merger
Under the SEC rules governing “going-private” transactions, the Maxwell Filing Persons are affiliates of the Company deemed to be engaged in a “going private” transaction and, therefore, are required to express their purposes and reasons for the Merger to the Company’s “unaffiliated security holders” as defined under Rule 13e-3 of the Exchange Act. The Maxwell 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 Maxwell Filing Persons should not be construed as a recommendation to any Company shareholder as to how that shareholder should vote on the Merger Proposal to approve the Merger Agreement.
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For the Maxwell Filing Persons, the primary purpose of the Merger is to enable the Maxwell Filing Persons to acquire, through Parent, all of the common equity of the Company not already owned by them. The Maxwell Filing Persons believe that the Company can be operated more effectively and have greater operating flexibility if they hold all of the common equity of the Company for the following reasons, among others:
The need for management of the Company to be responsive to public Class A Common Stock shareholder concerns and to engage in an ongoing dialogue with public shareholders may, at times, distract management’s time and attention from the effective operation and improvement of the business.
With only Series A Preferred Stock outstanding, the Company will have greater operational and business flexibility to pursue alternatives, 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 Class A Common Stock.
The Company will have the flexibility to pursue transactions with a risk profile that may be unacceptable to many public Class A Common Stock shareholders.
The timing of the making of the Merger Proposal by the Maxwell Filing Persons resulted from a market shift toward more regulatory oversight and regulatory uncertainty in response to the COVID pandemic, the economy and perceived climate change. Combined with severe weather events in the markets served by the Company, these uncertainties have led to probable increases in time and expense required to fully engage with public shareholders, including inflationary pressure on expected legal, audit, compliance and insurance expense. This shift and increase in expense, combined with the Company being a non-regulated utility company with revenue that can vary widely from period to period, led to difficulty in accurately forecasting forward business. The Maxwell Filing Persons concluded that, in light of these factors, it would be difficult to support the consistent growth that public company common shareholders would desire, and the continued cost of supporting public common shareholders would be prohibitive.
The Maxwell Filing Persons also believe that the Merger will enable the Company’s shareholders (other than the holders of Series A Preferred Stock, Excluded Shares and Insider Shares) to immediately realize the value of their investment in the Company through their receipt of the Merger Consideration. The Merger Consideration represents a premium of approximately 17.0% to the Company’s Class A Common Stock closing share price on December 29, 2023, the last trading day prior to the announcement of the execution of the Merger Agreement. The Merger Consideration also represents a 19.7% premium to the 30 trading-day volume-weighted average price as of December 29, 2023 and a 36.5% premium to the 60 trading-day volume-weighted average price as of December 29, 2023. Although the Maxwell Filing Persons believe that there may be significant opportunities associated with their investment in the Company, they also realize that there are substantial risks and that such opportunities may not ever be fully realized.
The Maxwell Filing Persons also considered a variety of potentially negative factors to themselves concerning the Merger Agreement and the Merger, which are listed below, although not listed in any relative order of importance:
All risk of any possible decreases in the Company’s revenues, free cash flow, or value following the Merger will be borne by the Maxwell Filing Persons;
Risks associated with any pending legal proceedings and possible adverse regulatory changes against the Company will be borne by the Maxwell Filing Persons; and
Following the Merger, there will be no trading market for the Surviving Corporation’s common stock.
If the Merger is consummated, the Company’s Class A Common Stock will cease to be traded on NASDAQ and Mr. Maxwell will be the beneficial owner of 100% of the common stock of the Surviving Corporation. The Maxwell Filing Persons believe that structuring the transaction in such manner is preferable to other alternative transaction structures because it (i) will enable Mr. Maxwell and Parent to directly acquire all of the Company’s outstanding Common Stock at the same time and (ii) represents an opportunity for the Company’s public common shareholders (other than the holders of Excluded Shares and Insider Shares) to immediately realize the value of their investment in the Company, particularly in light of the historic limited trading volume of the Company’s Class A Common Stock on NASDAQ.
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The foregoing discussion of the information and factors considered by the Maxwell Filing Persons is not intended to be exhaustive, but includes the material factors considered by the Maxwell Filing Persons. In view of the variety of factors considered in connection with their evaluation of the Merger, the Maxwell 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 determination. The Maxwell Filing Persons did not undertake to make any specific determination as to whether any factor, or any particular aspect of any factor, supported or did not support their ultimate determination. The Maxwell Filing Persons based its determination on the totality of the information presented.
Position of the Maxwell Filing Persons as to Fairness of the Merger
Under the SEC rules governing “going private” transactions, the Maxwell Filing Persons are affiliates of the Company and, therefore, are required to express their belief as to the fairness of the Merger to the Company’s “unaffiliated security holders” as defined under Rule 13e-3 of the Exchange Act. The Maxwell 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 Maxwell Filing Persons should not be construed as a recommendation to any Company shareholder as to how that shareholder should vote on the proposal to approve the Merger Agreement.
The Maxwell Filing Persons have interests in the Merger that are different from those of the other shareholders of the Company by virtue of their continuing interest in the Surviving Corporation after the completion of the Merger. The Maxwell Filing Persons attempted to negotiate with the Special Committee the terms of a transaction that would be most favorable to the Maxwell Filing Persons, and not necessarily to the Company’s unaffiliated shareholders. Accordingly, the Maxwell Filing Persons did not negotiate the Merger Agreement with a goal of obtaining terms that were fair to such unaffiliated shareholders.
The public shareholders were represented by the Special Committee, which reviewed, evaluated, considered and negotiated the Merger and the Merger Agreement, with the assistance of the Special Committee’s independent legal and financial advisors. None of the Maxwell Filing Persons or any of their affiliates participated in the deliberations of the Special Committee or the Board regarding, or received advice from the Company’s legal advisor or the Special Committee’s legal or financial advisors as to, the substantive or procedural fairness of the Merger to the public shareholders. In addition, none of the Maxwell Filing Persons or any of their affiliates performed, or engaged a financial advisor to perform, any valuation or other analysis for the purpose of assessing the fairness of the Merger to the public shareholders. The Maxwell Filing Persons believe, however, that the Merger is substantively and procedurally fair to the Company’s shareholders (other than the holders of Excluded Shares and Insider Shares) based on the following factors, among others:
The Merger Consideration of $11.00 per share represents a premium of approximately 17.0% to the Company’s closing share price of its Class A Common Stock on December 29, 2023, the last trading day prior to the announcement of the execution of the Merger Agreement.
The Merger Consideration of $11.00 per share reflects (i) a premium of approximately 22.2% from the value of $9.00 per share of Class A Common Stock that Mr. Maxwell had proposed in his November Proposal to the Board, and (ii) a premium of approximately 4.8% from the value of $10.50 per share that Mr. Maxwell had proposed in his September Proposal to the Board.
The Merger will provide consideration to the Company’s shareholders (other than the holders of Series A Preferred Stock, Excluded Shares and Insider Shares) entirely in cash, thus eliminating any uncertainty in valuing the Merger Consideration and allowing the Company’s shareholders to immediately realize a certain value for all of their shares of Class A Common Stock, as a result of which the Company’s shareholders (other than the holders of Series A Preferred Stock, Excluded Shares and Insider Shares) will no longer be exposed to the various risks and uncertainties related to continued ownership of the shares of Class A Common Stock, including exposure to market, economic and other risks arising from owning an equity interest in a public company, and will have the ability to pursue, if they so choose, other investment alternatives.
The Special Committee consisted solely of directors who are independent (i.e., directors who are not affiliated with the Maxwell Filing Persons, are not employees of the Company or any of its affiliates and have no financial interest in the Merger different from, or in addition to the interests of the
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Company’s unaffiliated shareholders other than their interests described under “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger”) and was established and given authority to, among other things, review, evaluate and negotiate the terms of the Merger and to recommend to the Board what action should be taken by the Company, including not to engage in the Merger and to reject the proposal.
The Special Committee retained and was advised by nationally recognized independent legal and financial advisors, each of which has extensive experience in transactions similar to the Merger.
The Special Committee and the Board had no obligation to recommend the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger, or any other transaction.
The Special Committee was deliberative in its process to determine whether the Merger was in the best interests of the Company and the public shareholders and to analyze, evaluate and negotiate the terms of the Merger Agreement and Transactions, including the Merger.
Members of the Special Committee do not have any interests in the Merger different from, or in addition to, those of the unaffiliated shareholders, other than (i) the directors’ receipt of compensation in the ordinary course (such as the receipt of cash payments in exchange for their Company RSUs pursuant to the terms of the Merger Agreement), (ii) the Special Committee members’ compensation in connection with its evaluation of the Merger, which is not contingent upon the completion of the Merger or recommendation of the Merger by the Special Committee or the Board (such as compensation in connection with service on the Special Committee), (iii) continuing as directors of the Surviving Corporation following consummation of the Merger and (iv) the directors’ indemnification and liability insurance rights under the Merger Agreement and their corresponding indemnification agreements.
No director of the Company who is also a director or an officer of any member of the Maxwell Filing Persons served on the Special Committee, nor has any such person participated in the negotiations of the Merger Agreement on behalf of the Company or in the Special Committee’s evaluation of the Merger Agreement and the Merger. In addition, Mr. Maxwell recused himself from and did not attend or otherwise participate in the meeting of the Board at which the Merger Agreement and the Transactions were discussed and approved. For these reasons, the Maxwell Filing Persons believe that their interest in the Merger did not influence the decision of the Special Committee or the Board with respect to the Merger Agreement or the Merger.
The Special Committee unanimously determined and approved that (a) the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, are fair to, and in the best interests of, the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (b) the Merger and the Transactions are in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) it is advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (d) it is advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby, including the Merger and the Transactions (also referred to elsewhere in this Proxy Statement as the “Special Committee Determination”). The Special Committee further recommended (a) that the Board approve the Merger Agreement, the Merger and the Transactions, (b) the Compensation Committee of the Board to take such actions as necessary or appropriate to effect the Transactions, and (c) that the Board submit the Merger Agreement, the Merger and the Transactions to a vote of the Company’s shareholders with a recommendation of the Board that the shareholders (other than the holders of the Excluded Shares and Insider Shares) approve the Merger and the Transactions and (also referred to elsewhere in this Proxy Statement as the “Special Committee Recommendation”).
The Board (other than Mr. Maxwell, who recused himself from and did not attend or otherwise participate in the meeting), acting upon the unanimous recommendation of the Special Committee, unanimously approved (a) the Special Committee Recommendation, (b) that the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, are fair to, and in the best
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interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (c) that the Merger and the Transactions are in the best interests of the Company and its shareholders (other than the holders of the Excluded Shares and Insider Shares), (d) that it is advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (e) it is advisable to recommend that the shareholders of the Company approve the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions). The Maxwell Filing Persons did not undertake to, and did not make, any determination of the fairness of the Merger Consideration.
Notwithstanding that the opinion of B. Riley was provided solely for the information and assistance of the Special Committee and the Maxwell Filing Persons are not entitled to, nor did they, rely on such opinion, the Special Committee received an opinion from B. Riley as to the fairness, from a financial point of view and, as of such date, of the Merger Consideration to be received by the public shareholders pursuant to the terms of the Merger Agreement. The opinion was based upon and subject to various assumptions made, procedures followed, factors considered and limitations on the review undertaken (as more fully described under “—Opinion of the Special Committee’s Financial Advisor” beginning on page 36 of this Proxy Statement).
Notwithstanding that the opinion of B. Riley and the financial analyses performed by B. Riley in connection with its opinion were provided solely for the information and assistance of the Special Committee and the Maxwell Filing Persons are not entitled to, nor did they, rely on such opinion or financial analyses, the Merger Consideration of $11.00 per share is within the range of implied per share value indicated by its analysis as set forth in “—Opinion of the Special Committee’s Financial Advisor” beginning on page 36 of this Proxy Statement.
The Merger is conditioned upon, among other things, the receipt of the Requisite Company Vote, which requires the affirmative vote of the majority of the shares of the Company’s Common Stock outstanding at the close of business on the Record Date and the Majority of the Minority Shareholder Approval, which requires the affirmative vote of holders of a majority of the issued and outstanding shares of Common Stock at the close of business on the Record Date other than any Excluded Shares or Insider Shares.
The Merger is not conditioned on any financing being obtained by Parent, thus increasing the likelihood that the Merger will be consummated, and the Merger Consideration will be paid to the unaffiliated shareholders.
The Merger Agreement permits the Company in certain circumstances to terminate the Merger Agreement and pay a cash termination fee in an amount equal to the reasonable and documented third party expenses of Parent and Merger Sub incurred in connection with the Merger Agreement, not to exceed $300,000.
Shareholders who do not vote in favor of the Merger Agreement and who comply with certain procedural requirements will be entitled, upon completion of the Merger, to exercise statutory appraisal rights under Delaware law.
A primary benefit of the Merger to the Company’s shareholders (other than the holders of Series A Preferred Stock, Excluded Shares and Insider Shares) will be the right of such shareholders to receive the Merger Consideration as described above. Additionally, such shareholders will avoid the risk associated with the Company's continuing turnaround efforts, including any possible decrease in the Company’s future earnings, growth or value.
The primary detriment of the Merger to such Company shareholders is that such Company shareholders will not participate in the future earnings, growth or value (if any) of the Company, including from any improvements in its operating performance from its turnaround efforts or any acquisitions that Parent or the Surviving Corporation may pursue following the Merger. Additionally, the receipt of cash in exchange for shares of Class A Common Stock pursuant to the Merger will generally be a taxable sale transaction for U.S. federal income tax purposes.
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In connection with the Merger, the Maxwell Filing Persons members may receive benefits and be subject to obligations that are different from, or in addition to, the benefits received by the Company’s other shareholders generally. The primary benefits of the Merger to the Maxwell Filing Persons include their interest in the Company’s potential future earnings and growth which, if they successfully execute their business strategies, could be substantial.
The primary detriment of the Merger to the Maxwell Filing Persons is the fact that all of the risk of any possible decrease in the Company’s earnings, growth or value will be borne by such holders. Additionally, the investment by the Maxwell Filing Persons in the Company will not be liquid, with no public trading market for the equity of the Surviving Corporation.
The Maxwell Filing Persons did not perform or receive any independent reports, opinions or appraisals from any third party related to the Merger, and thus did not consider any such reports, opinions or appraisals in determining the substantive and procedural fairness of the Merger to the unaffiliated shareholders.
The foregoing discussion of the factors considered and given weight by the Maxwell Filing Persons in connection with the fairness of the Merger is not intended to be exhaustive but includes all material factors considered by such persons. For these reasons, the Maxwell Filing Persons believe that private ownership of the Common Stock is in the best interest of the Company and that the Merger is in the best interest of, and is substantively and procedurally fair to, the Company’s shareholders (other than the holders of Excluded Shares).
Plans for the Company After the Merger
After the Effective Time of the Merger, Parent anticipates that the Surviving Corporation, due to Mr. Maxwell’s beneficial ownership of 100% of the common stock thereof, will implement operating efficiencies. In addition, Parent intends to continue the Company’s strategy of selling retail energy, operating in applicable utility service territories, and sourcing power and gas. Parent expects that the Surviving Corporation’s operations will be otherwise conducted substantially as they are currently being conducted by the Company. The current directors and officers of the Company will be the directors of the Surviving Corporation after the Merger.
Following consummation of the Merger, the Surviving Corporation’s management and board of directors may initiate a review of the Surviving Corporation and its assets, corporate and capital structure, capitalization, operations, business, properties and personnel to determine what changes, if any, would be desirable following the Merger to enhance the business and operations of the Surviving Corporation and may cause the Surviving Corporation to engage in transactions that the management or the board of directors of the Surviving Corporation determines are in the best interest of the Surviving Corporation upon such review. The Maxwell Filing Persons expressly reserve the right to make any changes to the Surviving Corporation’s operations after consummation of the Merger that they deem appropriate in light of such evaluation or in light of future developments.
Certain Effects of the Merger
If the Merger Agreement is approved by the Requisite Company Vote and the other conditions to the closing of the Merger are either satisfied or waived, Merger Sub will be merged with and into the Company, at which time the separate corporate existence of Merger Sub will cease and the Company will continue its corporate existence under Delaware law as the surviving corporation of the Merger, with all of the property, rights, privileges, powers and franchises of each of the Company and Merger Sub vesting in the Surviving Corporation, and all debts, liabilities and duties of each of the Company and Merger Sub becoming the debts, liabilities and duties of the Surviving Corporation.
At the Effective Time:
each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time, other than the Excluded Shares and any Dissenting Shares, will be automatically canceled and converted into the right to receive the Merger Consideration;
all Excluded Shares (other than the Maxwell Shares) will be canceled without payment of any consideration thereof;
each Dissenting Share will be canceled and converted into the right to receive payment of such amounts that are payable in accordance with Section 262 of the DGCL and will not have the right to receive the Merger Consideration, unless and until such shareholder loses, waives or withdraws its rights as a dissenting Company shareholder;
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each Maxwell Share issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation;
each share of Class B Common Stock issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class B Common Stock of the Surviving Corporation;
as described below under “The Merger AgreementTreatment of Company Equity Awards,” all of the (i) Company RSUs (other than the Maxwell RSUs), all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs, and (ii) Maxwell RSUs will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Maxwell RSUs, be canceled and extinguished, and no consideration will be delivered or deliverable therefor;
each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as preferred stock of the Surviving Corporation; and
each share of capital stock of Merger Sub will be converted into and represent one fully-paid and nonassessable share of Class A Common Stock, so that, after the Effective Time, Parent will be the holder of all of the issued and outstanding shares of Class A Common Stock.
If the Merger is consummated, at the Effective Time, Mr. Maxwell will be the beneficial owner of 100% of the common stock of the Surviving Corporation. The Company’s Series A Preferred Stock will remain outstanding as preferred stock of the Surviving Corporation.
Following the completion of the Merger, the Class A Common Stock will no longer be listed on the NASDAQ. The Series A Preferred Stock will remain outstanding and the Company will continue to file periodic and other reports with the SEC with respect to the Series A Preferred Stock, although holders of Class A Common Stock will no longer have an equity interest in the Company and will not participate in any potential future earnings of the Company.
The table below sets forth the direct and indirect interests in the Company’s net book value and net earnings of the shares held by the Maxwell Filing Persons prior to and immediately after the Merger, based upon the net book value of the Company at December 31, 2023, and the net income of the Company for the year ended December 31, 2023.
 
Ownership of the Company Prior to the Merger
Ownership of the Company After the Merger
 
(in thousands except % ownership)
 
%
Ownership
Net book
value at
December 31,
2023
Net earnings
for the
year
ended
December 31,
2023
%
Ownership
Net book
value at
December 31,
2023
Net earnings
for the
year
ended
December 31,
2023
Maxwell Filing Persons
65.7%
$25,438
$17,151
100%
$38,719
$26,105
We have calculated net book value as our total assets less our total liabilities and Series A Preferred Stock.
Effects on the Company if the Merger is not Consummated
If the holders of the Common Stock do not approve the Merger Proposal or if the Merger is not consummated for any other reason, the holders of the Common Stock will not receive any payment for their shares of Common Stock. Instead, the Class A Common Stock will continue to be listed and traded on the NASDAQ, and the Company’s shareholders will continue to be subject to similar risks and opportunities as they currently are experiencing with respect to their ownership of Class A Common Stock. If the Merger is not consummated, there is no assurance as to the effect of these risks and opportunities on the future value of the Class A Common Stock, including the risk that the market price of the Class A Common Stock may decline to the extent that the current market price of the Class A Common Stock reflects a market assumption that the Merger will be
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consummated. If the Company’s shareholders do not approve the Merger Proposal or if the Merger is not consummated for any other reason, there is no assurance that any other transaction acceptable to the Company will be offered or that the business, prospects or results of operations of the Company will not be adversely impacted, including as a result of the significant costs and expenses incurred by the Company in connection with the Merger.
Under certain circumstances, if the Merger is not consummated, the Company may be required to pay Parent a Termination Fee, as described in more detail in the section entitled “The Merger Agreement—Termination Fees and Expenses” beginning on page 94.
Interests of the Company’s Directors and Executive Officers in the Merger
In considering the recommendation of the Board that you vote in favor of the Merger Proposal, you should be aware that aside from their interests as shareholders of the Company, the Company’s directors and executive officers have interests in the Merger that are different from, or in addition to, those of other shareholders of the Company generally. The members of the Special Committee were aware of and considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and Transactions, including the Merger, and in making it recommendations to the Board, which was also aware of and took into account these interests, among other matters, when making its recommendation that the shareholders of the Company vote in favor of the Merger Proposal. See “Special Factors—Background of the Merger” beginning on page 14, and “Special Factors—Purposes and Reasons of the Company for the Merger; Recommendation of the Board and the Special Committee; Fairness of the Merger” beginning on page 24.
The Company’s shareholders should take these interests into account in deciding whether to vote “FOR” the Merger Proposal. These interests are described in more detail below, and certain of them are quantified in the narrative and the table below. Prior to execution and delivery of the Merger Agreement, neither the Company nor the Special Committee had any discussions with any directors or executive officers of the Company regarding employment by or compensation from the Surviving Corporation in connection with the Merger, and Parent has advised the Company that, except as described below, it has not had any such discussions with any directors or executive officers of the Company.
Compensation of the Special Committee
The Special Committee consists of three independent members of the Board, Ms. Bush and Messrs. Hartwick and Kennedy. By unanimous written consent effective September 11, 2023, and ratified on November 16, 2023, the Board adopted resolutions providing that each member of the Special Committee would receive $1,000.00 in cash per meeting for their efforts engaging in discussions concerning and negotiating the terms and provisions of a potential transaction involving the Company. Additionally, the Chair of the Special Committee receives a fee of $10,000.00 per year. These fees are not dependent on the closing of the Merger or on the Special Committee’s or the Board’s approval of, or recommendations with respect to, the Merger.
In recommending and approving the compensation to be paid to members of the Special Committee, the Board considered, among other things, historical compensation of special committees of the Company, the size of the Company and the size of any potential transaction.
Indemnification of Directors and Officers; Directors’ and Officers’ Insurance
Our certificate of incorporation provides that none of our directors will be liable to us or our shareholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as it now exists. In addition to the circumstances in which one of our directors is not personally liable as set forth in the preceding sentence, such directors will not be liable to the fullest extent permitted by any amendment to the DGCL hereafter enacted that further limits the liability of a director. Under Section 102(b)(7) of the DGCL, the personal liability of a director to the corporation or its shareholders for monetary damages for breach of fiduciary duty can be limited or eliminated except (1) for any breach of the director’s duty of loyalty to the corporation or its shareholders; (2) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (3) under Section 174 of the DGCL (relating to unlawful payment of dividend or unlawful stock purchase or redemption); or (4) for any transaction from which the director derived an improper personal benefit.
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These provisions do not limit or eliminate the Company’s rights or those of any shareholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. These provisions will not alter a director’s liability under federal securities laws.
Our bylaws provide that we are required to indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he, or a person for whom he is the legal representative, is or was one of our directors or officers or, while one of our directors or officers, is or was serving at our request as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (a “Covered Person”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all expenses, liability and loss (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred or suffered by such Covered Person in connection with such proceeding.
Our bylaws further provide that we are required, to the fullest extent not prohibited by applicable law as it presently exists or may be amended, pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any proceeding in advance of its final disposition; provided, however, that to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding will be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be ultimately determined that the Covered Person is not entitled to be indemnified.
We have entered into indemnification agreements with each of our directors and our executive officers. The indemnification agreements require us, among other things, to indemnify our directors and officers against certain liabilities that may arise by reason of their status or service as directors and officers and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified.
The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions regarding the exculpation, advancement of expenses and indemnification no less favorable than those set forth in the certificate of incorporation and bylaws of the Company in effect as of the date of the Merger Agreement, which provisions will not be amended, repealed or otherwise modified for a period of six years from the Effective Time in any manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were former or present directors or officers of the Company, unless such modification is required by applicable laws.
From the Effective Time until the six year anniversary of the Effective Time, Parent and the Surviving Corporation will jointly and severally indemnify, defend and hold harmless, each person who was as of the date of the Merger Agreement, or has been at any time prior thereto or who becomes prior to the Effective Time, a director, officer or employee of the Company or any of its subsidiaries or who acts as a fiduciary under any employee benefit plan of the Company or any of its subsidiaries (each, an “Indemnified Person”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), obligations, liabilities or judgments or amounts that are paid in settlement, of or incurred in connection with any threatened or actual proceeding to which such Indemnified Person is a party or is otherwise involved (including as a witness) based, in whole or in part, on or arising, in whole or in part, out of the fact that such person is or was a director, officer, employee or agent of the Company or any of its subsidiaries, a fiduciary under any employee benefit plan of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such person in any such capacity, whether pertaining to any act or omission occurring, alleged to have occurred, or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, the Merger Agreement or the Transactions, or the approval or recommendations thereof by the Board or the Special Committee, in each case to the fullest extent permitted under applicable law (and Parent and the Surviving Corporation will, jointly and severally, pay expenses incurred in connection therewith in advance of the final disposition of any such proceeding to each Indemnified Person to the fullest extent permitted under applicable law).
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The certificate of incorporation and bylaws of the Surviving Corporation (the “Organizational Documents”) will contain provisions regarding the exculpation, advancement of expenses and indemnification no less favorable than those set forth in the Organizational Documents of the Company in effect as of the date of the Merger Agreement, which provisions will not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of individuals who, at or prior to the Effective Time, were former or present directors or officers of the Company, unless such modification is required by applicable laws.
During the period from the Effective Time until six years from the Effective Time, Parent or the Surviving Corporation will procure and maintain “tail” insurance policies with a claims period of at least six years from the Effective Time from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability insurance in an amount and scope at least as favorable as the Company’s existing policies with respect to matters, acts or omissions existing or occurring at or prior to the Effective Time. Additionally, in the event that Parent or the Surviving Corporation or any of its successors or assigns consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or transfers all or substantially all of its properties and assets to any person, then, in each such case, proper provisions will be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the aforementioned obligations. Parent and the Surviving Corporation have also agreed not to sell, transfer, distribute or otherwise dispose of any of their assets in a manner that would reasonably be expected to render Parent or Surviving Corporation unable to satisfy the aforementioned obligations.
Merger Proceeds in Respect of Company Equity-Based Awards
At the Effective Time, all of the Company RSUs other than the Maxwell RSUs, all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration ($11.00 per share) multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs. At the Effective Time, all of the Maxwell RSUs will automatically be canceled and extinguished, and no consideration therefor will be delivered or deliverable to Mr. Maxwell. Each Company RSU and Maxwell RSU represents the right to receive, upon vesting, one share of Class A Common Stock, cash, or a combination of both, and also includes tandem dividend equivalents which will vest upon the same schedule as the underlying Company RSU or Maxwell RSU, as applicable.
As of March 25, 2024, the Company’s directors and executive officers (other than Mr. Maxwell) held 44,998 Company RSUs, and Mr. Maxwell held 78,089 Maxwell RSUs. Additionally, as of March 25, 2024, there were an additional 43,953 Company RSUs outstanding held by Company employees, Ms. Clay and a former employee of the Company.
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The following table shows, for each member of the Board and for each executive officer of the Company, as applicable the number of shares of Class A Common Stock underlying outstanding Company RSUs and Maxwell RSUs and the value of such awards. The values in the table below have been determined using the Merger Consideration of $11.00 per share of Class A Common Stock (other than the Maxwell RSUs), and are based on applicable holdings as of March 25, 2024, which date is the assumed date of the Effective Time solely for purposes of this compensation-related disclosure.
Name
Number of
Restricted Stock
Units That Have
Not Vested(1)
(#)
Value of
Restricted Stock
Units That Have
Not Vested
W. Keith Maxwell, III
78,089
$(2)
Mike Barajas
20,946
$230,406
Paul Konikowski
18,180
$199,980
Amanda E. Bush
2,936
$32,296
Kenneth M. Hartwick
2,936
$32,296
Stephen Kennedy
(1)
We completed a 1 for 5 reverse stock split on March 21, 2023. All historical RSU amounts included herein have been adjusted to reflect this reverse stock split.
(2)
At the Effective Time, all of the Maxwell RSUs will automatically be canceled and extinguished and no consideration therefor will be delivered or deliverable to Mr. Maxwell.
Outstanding Shares of Class A Common Stock Held by Directors and Executive Officers
The members of the Board and the executive officers of the Company that own Class A Common Stock will receive the same Merger Consideration of $11.00 per share of Common Stock, on the same terms and conditions as other holders of the Class A Common Stock (other than the Maxwell Shares). The Maxwell Shares will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation following consummation of the Merger.
The following table shows, for each member of the Board and for each executive officer of the Company, as applicable: (1) the number of shares of Class A Common Stock held by such individual, and (2) the value of such Class A Common Stock. The values in the table below have been determined using the Merger Consideration of $11.00 per share of Class A Common Stock, and are based on applicable holdings as of March 25, 2024, which date is the assumed date of the Effective Time solely for purposes of this compensation-related disclosure.
Name
Number of
Shares of
Class A
Common
Stock (#)(1)
Value of Class A
Common Stock
W. Keith Maxwell, III
748,748
(2)
Mike Barajas
4,471
$49,181
Paul Konikowski
2,103
$23,133
Amanda E. Bush
4,184
$46,024
Kenneth M. Hartwick
12,126
$133,386
Stephen Kennedy
(1)
We completed a 1 for 5 reverse stock split on March 21, 2023. All historical share amounts included herein have been adjusted to reflect this reverse stock split.
(2)
At the Effective Time, all of the Maxwell Shares will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation.
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Golden Parachute Compensation
In accordance with Item 402(t) of Regulation S-K, the table below sets forth the compensation that is based on or otherwise relates to the Merger that may become payable to each of the Company’s named executive officers in connection with the Merger. The amounts indicated in the table below are estimates of the amounts that would be payable assuming, solely for purposes of this table, that the Merger was consummated on March 25, 2024, and that the employment of each of the named executive officers was immediately terminated by the Company for convenience. In addition to the assumptions regarding the consummation date of the Merger and the termination of employment, these estimates are based on certain other assumptions that are described in the footnotes accompanying the table below. Accordingly, the actual values to be received by a named executive officer in connection with the Merger may differ from the amounts set forth below.
Name
Cash(1)(2)
($)
Equity(3)
($)
Perquisites /
Benefits(4)
($)
Total
($)
W. Keith Maxwell, III(5)
$28,396
$28,396
Mike Barajas
$730,625
$230,406
$48,157
$1,009,188
Paul Konikowski
$1,022,875
$199,980
$13,850
$1,236,705
Barbara Clay
$56,617
$56,617
(1)
There are no pension/nonqualified deferred compensation benefit enhancements, tax reimbursement or other payments to the named executive officers that are required to be disclosed in this table pursuant to Item 402(t) of Regulation S-K.
(2)
Mr. Maxwell’s Employment Agreement and Ms. Clay’s Consulting Agreement do not trigger any lump sum payments upon a change of control. For Mr. Barajas and Mr. Konikowski, consists of a (1) lump sum severance payment equal to the sum of (a) the executive’s annual 2024 base salary in effect which for Mr. Barajas is $250,000 and for Mr. Konikowski is $350,000, and (b) the full target annual bonus for the year ended December 31, 2024, which for Mr. Barajas is $187,500 and for Mr. Konikowski is $262,500, (2) a prorated target bonus for the year ended December 31, 2024, which for this disclosure is the total target bonus for 2024 prorated assuming a termination on March 25, 2024 of $43,125 for Mr. Barajas and $60,375 for Mr. Konikowski, and (3) any unpaid bonus with respect to the year ended December 31, 2023, which the Company’s Compensation Committee approved on March 27, 2024 and expects to pay in the amounts of $250,000 for Mr. Barajas and $350,000 for Mr. Konikowski under normal payroll practices.
(3)
Consists of full vesting of any outstanding unvested Company RSUs held by the named executive officer under our Incentive Plan as of March 25, 2024, and based on the Merger Consideration to be paid to holders of Class A Common Stock (other than Mr. Maxwell) of $11.00 pursuant to the Merger Agreement. For additional information, see “The Merger Agreement—Treatment of Company Equity Awards” and “The Merger Agreement—Payment of Merger Consideration”.
(4)
Consists of 18 months continuing coverage under COBRA.
(5)
At the Effective Time, all of the Maxwell RSUs will automatically be canceled and extinguished and no consideration therefor will be delivered or deliverable to Mr. Maxwell under the Merger Agreement.
Employment and Other Arrangements with the Company’s Named Executive Officers
Employment Agreement with Mr. Maxwell
In March 2020, we entered into an employment agreement with Mr. Maxwell, by which Mr. Maxwell was named Interim President and Interim Chief Executive Officer of the Company and all of its wholly-owned subsidiaries. Mr. Maxwell was appointed to Chief Executive Officer in November 2020.
Mr. Maxwell’s employment agreement provides for a term beginning March 13, 2020 and continuing in force and effect until the appointment of a new person or persons as President and/or Chief Executive Officer.
Mr. Maxwell’s employment agreement further provides that:
Mr. Maxwell will have an annual base salary of $1.00;
Mr. Maxwell is eligible to participate in any annual bonus plan established by the Company;
Mr. Maxwell is eligible to participate in the Company’s benefit plans and programs;
the Company will indemnify and hold Mr. Maxwell harmless for all acts and omissions during his employment to the maximum extent possible; and
the Company will purchase and maintain directors’ and officers’ liability insurance providing coverage for Mr. Maxwell.
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Employment Agreements with Messrs. Barajas and Konikowski
In November 2021, we entered into an employment agreement with each of Mr. Barajas and Mr. Konikowski. Each of the employment agreements provides for an initial term through December 31, 2022. The terms of each of the employment agreements automatically renews for periods of 12 months unless a party under the employment agreements provides notice of non-renewal at least 30 days prior to the expiration of the then-existing term.
The employment agreements each provide that, in the event the relevant executive is terminated by us other than for “cause” or the executive’s employment terminates due to either our election not to renew the term of the agreement or the executive’s resignation for “good reason,” the executive will, subject to execution of a release of claims, be entitled to receive the following payments and benefits:
12 months’ base salary plus an additional amount equal to the employee’s target bonus for the year of termination pro-rated based upon the number of days employee was employed in the calendar year of termination and based upon our actual performance through such date of termination, payable in twelve substantially equal installments (the “Severance Payment”);
any bonus earned for the calendar year prior to the year in which the termination occurs but which is unpaid as of the date of termination (the “Post-Termination Bonus Payment”); and
full vesting of any outstanding unvested awards held by the executive under the incentive plan of the Company.
“Cause” under the employment agreements is generally defined to include (a) a material uncured breach by the executive of the employment agreement or any other obligation owed to us, (b) commission of an act of gross negligence, willful misconduct, breach of fiduciary duty, fraud, theft or embezzlement, (c) any conviction, indictment or plea of nolo contendere with respect to any felony or any crime involving moral turpitude, (d) willful failure to perform obligations pursuant to the employment agreement or failure or refusal to follow the lawful instructions of our Board and (e) any conduct which is materially injurious to us.
“Good Reason” under the employment agreements is generally defined to include (a) a material diminution in base salary, (b) a material diminution in title, duties, authority or responsibilities, (c) relocation by more than fifty miles or (d) material and uncured breach of the employment agreement by us.
A non-renewal of the term of the employment agreement by the employee, a termination by reason of employee’s death or disability, a termination by the Company for Cause, or a termination of employment by employee without Good Reason, or a separation in connection with a “Change in Control” described, does not give rise to a right to the Severance Payment or Post-Termination Bonus Payment.
If within 120 days prior to execution of a definitive agreement for a “Change in Control” transaction and ending 365 days after consummation or final closing of such transaction, the relevant executive’s employment is terminated by us other than for “cause” or the executive’s employment terminates due to either our election not to renew the term of the agreement or the executive’s resignation for “good reason,” subject to execution of a release of claims and other conditions, the relevant executive is entitled to receive the following payments and benefits:
a lump sum payment equal to 1.0 times the employee’s base salary then in effect, and the full target annual bonus for the year in which termination occurs, and payable within 15 days following the date in which employment is terminated;
any bonus earned for the calendar year prior to the year in which the termination occurs but which is unpaid as of the date of termination, payable within 15 days following the date in which employment is terminated;
a pro rata target annual bonus for the year of termination, calculated based upon our actual performance through such date and payable within 15 days following the date in which employment is terminated;
full vesting of any outstanding awards held by the executive under the incentive plan of the Company; and
reimbursement or payment of certain continuing health benefits, if elected by the executive.
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The employment agreements generally define “Change in Control” to mean:
the consummation of an agreement to acquire or a tender offer for beneficial ownership by any person, of 50% or more of the combined voting power of our outstanding voting securities entitled to vote generally in the election of directors, or by any person of 90% or more of the then total outstanding shares of Class A Common Stock;
individuals who constitute the incumbent Board cease for any reason to constitute at least a majority of the Board;
consummation of certain reorganizations, mergers or consolidations or a sale or other disposition of all or substantially all of our assets;
approval by our shareholders of a complete liquidation or dissolution;
a public offering or series of public offerings by Parent and its affiliates, as a selling shareholder group, in which their total interest drops below 10 million of our total outstanding voting securities;
a disposition by Parent and its affiliates in which their total interest drops below 10 million of our total outstanding voting securities; or
any other business combination, liquidation event of Parent and its affiliates or restructuring of us which the Compensation Committee deems in its discretion to achieve the principles of a Change in Control.
The employment agreements also provide for noncompetition and non-solicitation covenants which are in effect during the period of the executive’s employment and for a period of 12 months thereafter.
Consulting Agreement with Good Counsel
On August 27, 2020, we entered into the Consulting Agreement with Good Counsel Legal Services, LLC, pursuant to which Ms. Clay agreed to fulfill the role of Acting General Counsel and Secretary. On August 1, 2021, the Consulting Agreement was amended to reflect a change of the entity from Good Counsel Legal Services, LLC to Good Counsel Group LLC, and on November 28, 2022 to increase the monthly amount from $50,000 to $60,000, effective December 1, 2022.
On July 5, 2023, the Consulting Agreement was further amended to reflect a change in (i) the amounts payable, (ii) Ms. Clay’s title from Acting General Counsel and Secretary of the Company to Consultant and (iii) the services to be performed by Ms. Clay under the Consulting Agreement. Pursuant to the Consulting Agreement, as amended on July 5, 2023, Ms. Clay will assist the Company and its legal team and lawyers, on a part-time, as needed basis, on Company legal matters, regulatory matters and legal strategy at a rate of $350.00 per hour.
In addition to the fees mentioned above, the Consulting Agreement also provided for (a) a one-time $50,000 sign-on bonus to be paid to Good Counsel, and (b) a grant to Ms. Clay of 5,500 restricted stock units, half of which vested on May 18, 2021, and the other half of which vested on May 18, 2022.
The Consulting Agreement provides that outstanding RSUs will vest upon a Change in Control. The Consulting agreement generally defines “Change in Control” to mean:
the consummation of an agreement to acquire or a tender offer for beneficial ownership by any person, of 50% or more of the combined voting power of our outstanding voting securities entitled to vote generally in the election of directors, or by any person of 90% or more of the then total outstanding shares of Class A Common Stock;
individuals who constitute the incumbent board cease for any reason to constitute at least a majority of the Board;
consummation of certain reorganizations, mergers or consolidations or a sale or other disposition of all or substantially all of our assets or an acquisition of assets of another entity;
approval by our shareholders of a complete liquidation or dissolution;
a public offering or series of public offerings by Parent and its affiliates, as a selling shareholder group, in which their total interest drops below 10 million of our total outstanding voting securities;
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a disposition by Parent and its affiliates in which their total interest drops below 10 million of our total outstanding voting securities; or
any other business combination, liquidation event of Parent and its affiliates or restructuring of us which the Compensation Committee deems in its discretion to achieve the principles of a Change in Control.
The Consulting Agreement provides for an initial term from September 1, 2020 to August 31, 2022. On or after August 1, 2022, we may terminate the Consulting Agreement by giving written notice that Consulting Agreement ends 60 days from the date of the written notice. If we do not provide such notice, the Consulting Agreement will continue month-to-month until we terminate it by providing 60 days’ advance written notice. We may also terminate the Consulting Agreement at any time for Cause.
“Cause” under the Consulting Agreement is generally defined to include (a) a material uncured breach by the executive of the Consulting Agreement or any other obligation owed to us, (b) commission of an act of gross negligence, willful misconduct, breach of fiduciary duty, fraud, theft or embezzlement, (c) any conviction, indictment or plea of nolo contendere with respect to any felony or any crime involving moral turpitude, (d) willful failure to perform obligations pursuant to the Consulting Agreement or failure or refusal to follow the lawful instructions of our Board and (e) any conduct which is materially injurious to us.
Intent to Vote in Favor of the Merger
The Company’s directors and executive officers have informed the Company that, as of the date of this Proxy Statement, (i) the directors and executive officers intend to vote all of the shares of Common Stock owned by them in favor of the Merger Proposal, and (ii) the executive officers have not made a recommendation either in support of or opposed to the Merger Proposal. As of March 25, 2024, the Company’s directors and executive officers beneficially owned, in the aggregate, 4,771,632 shares of Common Stock (which includes (a) 22,884 shares of Class A Common Stock owned by the Company’s directors and executive officers (other than Mr. Maxwell) and (b) 748,748 shares of Class A Common Stock and 4,000,000 shares of Class B Common Stock beneficially owned by Mr. Maxwell) entitled to vote at the Special Meeting, or approximately 66.0% of the outstanding shares of Common Stock entitled to vote at the Special Meeting.
Surviving Corporation Directors and Executive Officers
Parent intends that, in addition to Mr. Maxwell, Ms. Bush, and Messrs. Hartwick and Kennedy will become directors of the Surviving Corporation immediately following consummation of the Merger. Additionally, Parent intends that, in addition to Mr. Maxwell, the Company’s other executive officers will continue as the initial executive officers of the Surviving Corporation.
Accounting Treatment of the Merger
The Merger will be accounted for in accordance with GAAP. The Company does not believe the Merger will have a material impact on the accounting for the Company.
Material U.S. Federal Income Tax Consequences of the Merger
The following discussion is a summary of material U.S. federal income tax consequences of the Merger to U.S. Holders (as defined in this Proxy Statement) of the shares of Class A Common Stock. This summary is general in nature and does not discuss all aspects of U.S. federal income taxation that may be relevant to a holder of shares of Class A Common Stock in light of their particular circumstances. This discussion is based on the Internal Revenue Code of 1986, and the rules and regulations promulgated thereunder, (the “Code”), the Treasury Regulations promulgated under the Code, judicial authority, published administrative positions of the Internal Revenue Service (the “IRS”), and other applicable authorities, all as in effect as of the date of this Proxy Statement, and all of which are subject to change or differing interpretations at any time, with possible retroactive effect. We have not sought, and do not intend to seek, any ruling from the IRS with respect to the statements made and the conclusions reached in the following discussion, and no assurance can be given that the IRS will agree with the views expressed herein, or that a court will not sustain any challenge by the IRS in the event of litigation. This discussion does not describe any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction and does not consider any aspects of U.S. federal tax law other than income
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taxation, nor does it address any aspects of the unearned income Medicare contribution tax. In addition, this discussion only applies to the shares of Class A Common Stock that are held as a capital asset (generally, property held for investment) within the meaning of Section 1221 of the Code and does not address tax considerations applicable to any holder of the shares of Class A Common Stock that may be subject to special treatment under U.S. federal income tax law, including:
a bank or other financial institution;
a tax-exempt organization;
a retirement plan or other tax-deferred account;
an S corporation or other pass-through entity (or an investor in an S corporation or other pass-through entity);
a person holding a direct or indirect interest in Parent or Merger Sub;
an insurance company;
a mutual fund;
a regulated investment company or real estate investment trust;
a dealer or broker in commodities, stocks, securities or in currencies;
a dealer or trader in securities that elects mark-to-market treatment;
a controlled foreign corporation;
a passive foreign investment company;
a Company shareholder that owns, or has owned, actually or constructively, more than 5% of the shares of Common Stock;
a Company shareholder subject to the alternative minimum tax provisions of the Code;
a Company shareholder that received the shares of Common Stock through the exercise of an employee stock option, through a tax qualified retirement plan or otherwise as compensation;
a person that has a functional currency other than the U.S. dollar;
a person that is required to report income no later than when such income is reported in an “applicable financial statement”;
a person that holds shares of Common Stock as part of a hedge, straddle, constructive sale, conversion or other integrated transaction;
a Company shareholder that is not exchanging its shares of Common Stock for cash pursuant to the Merger; and
certain former U.S. citizens or long-term residents.
If a partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds shares of Class A Common Stock, the tax treatment of a partner in the partnership will depend upon the status of the partner and the activities of the partner and the partnership. Any such partnership (including any entity or arrangement treated as a partnership for U.S. federal income tax purposes), and any partners thereof, that hold the shares of Class A Common Stock should consult their own tax advisors regarding the tax consequences of exchanging the shares of Class A Common Stock pursuant to the terms of the Merger Agreement. In addition, holders of shares of Class A Common Stock who are not U.S. Holders may be subject to different tax consequences than those described below and are urged to consult their tax advisors regarding their tax treatment under U.S. and non-U.S. tax laws.
The following summary is for general informational purposes only and is not a substitute for careful tax planning and advice. Holders of shares of Class A Common Stock are urged to consult their own tax advisor with respect to the specific tax consequences to them of the Merger in light of their own particular circumstances, including U.S. federal estate, gift and other non-income tax consequences, and tax consequences under state, local and non-U.S. tax laws.
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U.S. Holders
The following is a summary of the material U.S. federal income tax consequences of the Merger that will apply to U.S. Holders. For purposes of this discussion, the term “U.S. Holder” refers to a beneficial owner of the shares of Class A Common Stock that is, for U.S. federal income tax purposes:
an individual who is a citizen or resident in the United States;
a corporation (or any other entity or arrangement treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States or any state thereof or the District of Columbia;
an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust or (ii) the trust has validly elected to be treated as a “United States person” under applicable Treasury Regulations.
The exchange of the shares of Class A Common Stock by a U.S. Holder for Merger Consideration pursuant to the terms of the Merger Agreement will generally be a taxable transaction for U.S. federal income tax purposes. A U.S. Holder will generally recognize gain or loss equal to the difference, if any, between the amount of the Merger Consideration received in the Merger and the U.S. Holder’s adjusted tax basis in the shares of Class A Common Stock exchanged therefor. Gain or loss will generally be determined separately for each block of the shares of Class A Common Stock (generally, the shares of Class A Common Stock acquired at the same cost in a single transaction) held by such U.S. Holder. Such gain or loss will generally be capital gain or loss, and will be long-term capital gain or loss if such U.S. Holder’s holding period for the shares of Class A Common Stock is more than one year at the time of the exchange. Long-term capital gains recognized by a non-corporate U.S. Holder are generally eligible for reduced rates of taxation. The deductibility of capital losses is subject to certain limitations.
Non-U.S. Holders
For purposes of this discussion, a “Non-U.S. Holder” is a beneficial owner of shares of Class A Common Stock that is neither a U.S. Holder nor an entity or arrangement classified as a partnership for U.S. federal income tax purposes.
A Non-U.S. Holder generally will not be subject to U.S. federal income tax on any gain realized on the receipt of the Merger Consideration pursuant to the terms of the Merger Agreement, unless:
the gain is effectively connected with the Non-U.S. Holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, such gain is attributable to a permanent establishment maintained by the Non-U.S. Holder in the United States);
the Non-U.S. Holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition of shares of Common Stock pursuant to the terms of the Merger Agreement, and certain other requirements are met; or
the Company is or has been a “U.S. real property holding corporation” for U.S. federal income tax purposes at any time during the shorter of the five year period ending on the date of the consummation of the Merger or the period that the Non-U.S. Holder held the shares of Class A Common Stock and, in the case where the shares of Class A Common Stock are treated as regularly traded on an established securities market, the Non-U.S. Holder has owned, directly or constructively, more than 5% of the shares of Class A Common Stock at any time within the shorter of the five year period preceding the Merger or such Non-U.S. Holder’s holding period for the shares of Class A Common Stock. There can be no assurance that the Class A Common Stock will be treated as regularly traded on an established securities market for this purpose.
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Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at generally applicable U.S. federal income tax rates in the same manner as if such Non-U.S. Holder were a U.S. Holder. A Non-U.S. Holder that is a corporation also may be subject to a branch profits tax at a rate of 30%, or lower rate specified in an applicable income tax treaty, on such effectively connected gain, as adjusted for certain items.
Gain described in the second bullet point above generally will be subject to U.S. federal income tax at a rate of 30% (or such lower rate as may be specified under an applicable income tax treaty), which may be offset by U.S.-source capital losses of the Non-U.S. Holder (even though the individual is not considered a resident of the United States), provided the Non-U.S. Holder has timely filed U.S. federal income tax returns with respect to such losses.
Gain described in the third bullet point above generally will be subject to U.S. federal income tax on a net income basis at generally applicable U.S. federal income tax rates in the same manner as if such Non-U.S. Holder were a U.S. Holder. In addition, the Company may be required to withhold U.S. federal income tax at a rate of 15% of the amount realized upon such disposition. We will be classified as a U.S. real property holding corporation if the fair market value of the Company’s “United States real property interests” equals or exceeds 50% of the sum of the fair market value of the Company’s worldwide real property interests plus the Company’s other assets used or held for use in a trade or business, as determined for U.S. federal income tax purposes. We believe that we are not, and do not anticipate becoming, a U.S. real property holding corporation. However, such determination is factual in nature and subject to change and the Company can give no assurance that the foregoing rules governing U.S. real property holding corporations will not be relevant for Non-U.S. Holders. Non-U.S. Holders are urged to consult their tax advisors regarding the tax consequences to them if the Company is or has been a U.S. real property holding corporation.
Information Reporting and Backup Withholding Tax
Proceeds from the exchange of the shares of Class A Common Stock for cash pursuant to the Merger generally will be subject to information reporting. In addition, backup withholding tax at the applicable rate (currently 24%) generally will apply unless the applicable U.S. Holder or other payee provides a valid taxpayer identification number and complies with certain certification procedures (generally, by providing a properly completed IRS Form W-9) or otherwise establishes an exemption from backup withholding tax. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding tax rules from a payment to a U.S. Holder will be allowed as a credit against that holder’s U.S. federal income tax liability and may entitle the holder to a refund, provided, that, the required information is timely furnished to the IRS. Each U.S. Holder should duly complete, sign and deliver to the Paying Agent (as defined in this Proxy Statement) an appropriate IRS Form W-9 to provide the information and certification necessary to avoid backup withholding tax, unless an exemption applies and is established in a manner satisfactory to the Paying Agent (as defined in this Proxy Statement).
A Non-U.S. Holder generally certifies its status as such by providing a properly completed and signed IRS Form W-8ECI, W-8BEN or W-BEN-E. A Non-U.S. Holder that does not provide such form generally will be presumed to be a U.S. Holder, subject to backup withholding tax as described above.
Regulatory Approvals/Filings; Third Party Consents
In connection with the Merger, the Company is required to make certain filings with, and comply with certain laws of, various federal and state governmental agencies, including filing the Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL at the closing of the Merger and complying with U.S. federal securities laws.
The Company filed the application required for Federal Energy Regulatory Commission (“FERC”) approval on March 18, 2024. The Company anticipates obtaining approval prior to the date of the Special Meeting. Although no similar state-level approvals are required for the Merger, the Company is required to make certain notice filings with a handful of state regulatory bodies following the Effective Date of the Merger.
The Company’s Credit Agreement, dated June 30, 2022, by and among the Company, Spark HoldCo and the other subsidiaries of the Company and Spark HoldCo thereto, as co-borrowers, Woodforest National Bank, as administrative agent, swing bank, swap bank, issuing bank, joint-lead arranger, sole bookrunner and syndication
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agent, BOKF, NA (d/b/a Bank of Texas), as joint-lead arranger and issuing bank, and the other financial institutions party thereto (the “Senior Credit Facility”) contains a covenant that requires the prior written consent of at least two or more financial institutions having more than 50% of the commitments pursuant to the Senior Credit Facility (the “Banks”) before the Merger and the Transactions may be consummated. On February 8, 2024, we obtained the written consent of the Banks to consummate the Merger and the Transactions.
For additional information, see “The Merger Agreement—Regulatory Approvals/Filings; Third Party Consents”.
Delisting and Deregistration of the Class A Common Stock
If the Merger is consummated, shares of the Class A Common Stock will no longer be publicly traded and will be delisted from the NASDAQ. Additionally, the Class A Common Stock will be deregistered under the Exchange Act, and the Company will no longer be required to file periodic reports with the SEC with respect to the Class A Common Stock.
Continued Listing and Registration and Limited Conversion Rights Upon a Change of Control of the Series A Preferred Stock
Continued Listing and Registration of the Series A Preferred Stock
In addition to the Class A Common Stock, the Company’s Series A Preferred Stock is also registered under the Exchange Act, and is listed on the NASDAQ. The Merger will not have any impact on the registration of the Series A Preferred Stock under the Exchange Act or the continued listing of the Series A Preferred Stock on NASDAQ. Accordingly, the Company expects that it will continue to be subject to the Exchange Act and continue to file reports with the SEC under the Exchange Act.
Limited Conversion Rights Upon Change of Control of Series A Preferred Stock
Upon the occurrence of a Change of Control under the Certificate of Designations of Rights and Preferences of the Series A Preferred Stock (the “Certificate of Designations”), each holder of shares of Series A Preferred Stock has the right to convert some or all of the shares of Series A Preferred Stock held by such holder (the “Change of Control Conversion Right”).
A “Change of Control” is deemed to occur when, after the original issuance of the Series A Preferred Stock, any person that is a holder of the Class B Common Stock as of the date of such issuance becomes the beneficial owner, directly or indirectly, of more than 75% of the total voting power of all the Class A Common Stock and Class B Common Stock entitled to vote generally in the election of directors, measured by voting power rather than number of shares of Class A Common Stock and Class B Common Stock. Because a Change of Control includes a transaction where any person who is a holder of the Class B Common Stock as of the date of the offering of the Series A Preferred Stock becomes the beneficial owner of more than 75% of the total voting power of the Common Stock on a combined basis, the Merger will constitute a Change of Control because Mr. Maxwell, as the beneficial owner of the Class B Common Stock when the Series A Preferred Stock was issued, will acquire 100% of the total voting power of the Class A Common Stock and Class B Common Stock.
Upon a Change of Control, at the option of the holder, the Series A Preferred Stock converts into a number of shares of Class A Common Stock per share of Series A Preferred Stock (the “Common Stock Conversion Consideration”), which is equal to the lesser of:
the quotient obtained by dividing (i) the sum of the $25.00 liquidation preference per share of Series A Preferred Stock plus the amount of any accumulated and unpaid dividends (whether or not declared) to, but not including, the Change of Control Conversion Date (as defined below) (unless the Change of Control Conversion Date is after a record date for a Series A Preferred Stock dividend payment and prior to the corresponding dividend payment date (as defined in the Certificate of Designations), in which case no additional amount for such accumulated and unpaid dividend will be included in this sum) by (ii) the Common Stock Price (such quotient, the “Conversion Rate”); and
0.73394 shares of Class A Common Stock (the “Share Cap”).
The Certificate of Designations initially designated a Share Cap of 1.83482, but the Share Cap is subject to pro rata adjustments for any share splits (including those effected pursuant to a distribution of Common Stock), subdivisions or combinations (in each case, a “Share Split”) with respect to the Class A Common Stock as
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follows: the adjusted Share Cap as the result of a Share Split will be the number of shares of Class A Common Stock that is equivalent to the product obtained by multiplying (i) the Share Cap in effect immediately prior to such Share Split by (ii) a fraction, the numerator of which is the number of shares of Common Stock outstanding after giving effect to such Share Split and the denominator of which is the number of shares of Common Stock outstanding immediately prior to such Share Split.
The original Share Cap of 1.83482, as adjusted for the Company’s 2-to-1 forward split in June 2017, and the 5-to-1 reverse split in March 2023, is 0.73394.
In the case of a Change of Control pursuant to which the Class A Common Stock will be converted into cash (the “Alternative Form Consideration”), a holder of Series A Preferred Stock will receive upon conversion of such Series A Preferred Stock the kind and amount of Alternative Form Consideration which such holder would have owned or been entitled to receive upon the Change of Control had such holder held a number of shares of our Class A Common Stock equal to the Common Stock Conversion Consideration immediately prior to the effective time of the Change of Control (the “Alternative Conversion Consideration”).
The “Common Stock Price” is the amount of cash consideration per share of our Class A Common Stock in the Merger since the consideration to be received in the Change of Control by the holders of shares of Class A Common Stock is solely cash.
Accordingly, the Merger will result in a Change of Control Conversion Right in which holders of the Series A Preferred Stock will have the right to convert each share into Alternative Form Consideration of $8.01 (0.73394 multiplied by $11.00). Because the Alternative Form Consideration is less than the current trading price of the Series A Preferred Stock, we do not expect holders of Series A Preferred Stock to elect to exercise their limited Change of Control Conversion Rights, and that the Series A Preferred Stock will continue to remain outstanding and traded on NASDAQ following consummation of the Merger.
Within 15 days following the occurrence of a Change of Control upon the closing of the Merger, the Company will provide to holders of shares of Series A Preferred Stock a notice of occurrence of the Change of Control that describes the resulting Change of Control Conversion Right. This notice will state the following:
the events constituting the Change of Control;
the date of the Change of Control;
the last date on which the holders of shares of Series A Preferred Stock may exercise their Change of Control Conversion Right;
the method and period for calculating the Common Stock Price;
the effective date (the “Change of Control Conversion Date”);
that if, prior to the Change of Control Conversion Date, we have provided or provide irrevocable notice of our election to redeem all or any shares of our Series A Preferred Stock, holders will not be able to convert their shares of Series A Preferred Stock designated for redemption and such shares will be redeemed on the related redemption date, even if such shares have already been tendered for conversion pursuant to the Change of Control Conversion Right (unless we default in payment of the redemption price and all accumulated and unpaid dividends);
if applicable, the type and amount of Alternative Conversion Consideration entitled to be received per share of Series A Preferred Stock;
the name and address of the paying agent and the conversion agent;
the procedures that the holders of shares of Series A Preferred Stock must follow to exercise their Change of Control Conversion Right; and
the last date on which holders of shares of Series A Preferred Stock may withdraw shares surrendered for conversion and the procedures such holders must follow to effect such a withdrawal.
To exercise the Change of Control Conversion Right, the holders of shares of Series A Preferred Stock will be required to deliver, on or before the close of business on the Change of Control Conversion Date, the certificates
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(if any) representing the shares of Series A Preferred Stock to be converted, duly endorsed for transfer, together with a written conversion notice completed, to the Company’s transfer agent, or, in the case of shares of Series A Preferred Stock held in global form, comply with the applicable procedures of the Depository Trust Company.
Effective Time of Merger
The Merger will become effective when the Certificate of Merger has been duly filed with and accepted by the Secretary of State of the State of Delaware or at such other subsequent date or time as Parent and the Company may agree and specify in the Certificate of Merger in accordance with the DGCL.
Payment of the Merger Consideration and Surrender of Stock Certificates
At or prior to the Effective Time, Parent anticipates that it will designate the Company’s transfer agent, Equiniti Trust Company, LLC, to act as paying agent under the Merger Agreement (the “Paying Agent”) for the purpose of exchanging shares of Class A Common Stock for the Merger Consideration and will enter into an agreement reasonably satisfactory to the Company and the Paying Agent relating to the services to be performed by the Paying Agent. At or prior to the Effective Time, Parent is required to irrevocably deposit, or cause to be deposited, with the Paying Agent, the aggregate Merger Consideration with respect to all shares of Class A Common Stock outstanding immediately prior to the Effective Time (other than the Excluded Shares). The Paying Agent will deliver the Merger Consideration according to the procedure summarized below.
As soon as reasonably practicable, but in no event more than two business days after the Effective Time, the Surviving Corporation will cause the Paying Agent to deliver a letter of transmittal to each person who was, as of immediately prior to the Effective Time, a shareholder of record of Class A Common Stock entitled to receive the Merger Consideration, (1) a customary letter of transmittal and (2) instructions for use in effecting the surrender of any stock certificates (or effective affidavits of loss in lieu thereof) (“Certificate(s)”), book-entry shares (“Book-Entry Share(s)”) and/or such other documents as may be required in exchange for the Merger Consideration. Upon surrender of a Certificate or in the case of Book-Entry Shares, the surrender of such shares, and/or such other documents as may be reasonably required by the Paying Agent in accordance with the terms of the letter of transmittal, each shareholder holding shares of Class A Common Stock represented by such Certificate or Book-Entry Share is entitled to receive in exchange for such Certificate or Book-Entry Share an amount (after giving effect to any required tax withholdings) equal to (1) the number of shares of Class A Common Stock represented by such Certificate or Book-Entry Share multiplied by (2) $11.00 (i.e., the Merger Consideration), and the surrendered Certificate or Book-Entry Share will be canceled.
At the Effective Time, each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares) will be canceled and converted into the right to receive the Merger Consideration, without interest and less any applicable withholding taxes. At the Effective Time, all of the Maxwell Shares will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation.
At the Effective Time, all of the Company RSUs other than the Maxwell RSUs, all of which are held by current and former employees and directors of the Company, including its executive officers, will be canceled, extinguished and converted into the right to receive cash (without interest) equal to the number of shares of Class A Common Stock underlying the award multiplied by the Merger Consideration. At the Effective Time, all of the Maxwell RSUs will automatically be canceled and extinguished, and no consideration therefor will be delivered or deliverable to Mr. Maxwell.
Additionally, not later than the Effective Time, Parent is required to provide, or cause to be provided, to the Company, all funds necessary to pay the Merger Consideration owed to the holders of the Company RSUs, which such payments will be made through the Company’s payroll not later than the first payroll date following the Effective Time.
The Paying Agent will return to the Surviving Corporation all funds in its possession on the 365th date after the closing date of the Merger, and the Paying Agent’s duties will terminate. After that time, if you have not received payment of the Merger Consideration, you may look only to the Surviving Corporation payment of the Merger Consideration, without interest, subject to applicable abandoned property, escheat and similar laws.
Fees and Expenses
Except as otherwise noted in the table below, all fees, expenses and costs incurred in connection with the Merger Agreement and Transactions, including legal, accounting, investment banking and other fees, expenses and costs, will be paid by the party incurring such fees, expenses and costs, whether or not the Merger is consummated.
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Estimated fees and expenses to be incurred by the Company and the Maxwell Filing Persons in connection with the Merger Agreement and the Transactions, including the Merger, are as follows:
Description
Amount
Financial advisors fee and expenses
$1,025,000
Legal fees and expenses
$900,000
SEC filing fee
$4,178
Proxy solicitation costs(1)
$10,000
Printing and mailing costs
$100,000
Miscellaneous
$100,000
Total fees and expenses
$2,139,183
(1)
Under the terms of the Merger Agreement, Parent has agreed to pay for 50% of the costs and expenses of any proxy solicitation firm engaged in connection with obtaining the Requisite Company Vote.
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CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
This Proxy Statement, and the documents incorporated by reference in this Proxy Statement, contain forward-looking statements that are subject to a number of risks and uncertainties, many of which are beyond the Company’s control. These forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act, which appear in a number of section of this Proxy Statement such as “Summary Term Sheet,” “Questions and Answers About the Special Meeting and the Merger,” “Special Factors,” “Adjournment of the Special Meeting,” and “Important Information Regarding Via Renewables, Inc.,” can be identified by the use of forward-looking terminology including “may,” “should,” “could,” “likely,” “will,” “believe,” “expect,” “anticipate,” “estimate,” “continue,” “plan,” “intend,” “project,” or other similar words. All statements, other than statements of historical fact, included in this this Proxy Statement and the exhibits filed or furnished herewith related to the Merger and Transactions, including their timing and effects, conditions to closing and approval requirements, are forward-looking statements. Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it cannot give any assurance that such expectations will prove correct.
The forward-looking statements in this Proxy Statement, and the documents incorporated by reference in this Proxy Statement, are subject to risks and uncertainties. Important factors that could cause actual results to materially differ from those projected in the forward-looking statements include, but are not limited to: the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement or Change in Company Recommendation (as defined in the Merger Agreement and in this Proxy Statement); the inability to complete the proposed Merger due to the failure to obtain Requisite Company Vote for the proposed Merger or the failure to satisfy other conditions to completion of the proposed Merger; the failure of the proposed Merger to close for any other reason; risks related to disruption of management’s attention from the Company’s ongoing business operations due to the Merger; the outcome of any legal proceedings, regulatory proceedings or enforcement matters that may be instituted against the Company and others relating to the Merger Agreement or otherwise; the risk that the pendency of the proposed Merger disrupts current plans and operations and the potential difficulties in employee retention as a result of the pendency of the proposed Merger; the effect of the announcement of the proposed Merger on the Company’s relationships with its contractual counterparties, operating results and business generally; and the amount of the costs, fees, expenses and charges related to the proposed Merger.
Additional factors that may cause results to differ materially from those described in the forward-looking statements are set forth in the Company’s Annual Report on Form 10–K for the fiscal year ended December 31, 2022, under the heading “Item 1A. Risk Factors,” and in subsequently filed Quarterly Reports on Form 10-Q and Current Reports on Form 8-K and other subsequent filings with the SEC.
You should review the risk factors and other factors noted throughout this Proxy Statement, and the documents incorporated by reference in this Proxy Statement, that could cause the Company’s actual results to differ materially from those contained in any forward-looking statement. All forward-looking statements speak only as of the date made. Unless required by law, the Company disclaims any obligation to publicly update or revise these statements whether as a result of new information, future events or otherwise. It is not possible for the Company to predict all risks, nor can it assess the impact of all factors on the business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
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THE PARTIES TO THE MERGER
Via Renewables, Inc.
The Company is an independent retail energy services company founded in 1999 that provides residential and commercial customers in competitive markets across the United States with an alternative choice for their natural gas and electricity under well-established and well-regarded brands, including Spark Energy, Major Energy, Provider Power, and Verde Energy. Headquartered in Houston, Texas, the Company operated in 20 states and served 103 utility territories as of December 31, 2023.
The Company’s address is 12140 Wickchester Ln, Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
Parent
Parent is a Texas limited liability company formed in 2005. Parent is a holding company and directly and indirectly holds 3,945,000 shares of Class B Common Stock of the Company. Merger Sub is a wholly owned subsidiary of Parent. Mr. Maxwell is the indirect sole owner of Parent.
Parent’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079, and its telephone number is (713) 600-2600.
Merger Sub
Merger Sub is a newly formed Delaware limited liability company. Merger Sub was formed by Parent solely for the purpose of engaging in the transactions contemplated by the Merger Agreement. Merger Sub has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement. Mr. Maxwell, through his ownership of Parent, is the sole beneficial owner of Merger Sub.
Merger Sub’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
William Keith Maxwell, III
Although not a direct party to the Merger Agreement, Mr. Maxwell is the Company’s Chief Executive Officer and Chairman of the Board, is the owner and Chief Executive Officer of Parent and the President, Secretary and indirect owner of Merger Sub. Mr. Maxwell also owns approximately 23.2% of the issued and outstanding Class A Common Stock and is the beneficial owner of all the issued and outstanding Class B Common Stock, comprising approximately 65.7% of the issued and outstanding Common Stock. Upon completion of the Merger, Mr. Maxwell will be the beneficial owner of 100% of the common stock of the Surviving Corporation.
Mr. Maxwell’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and his telephone number is (713) 600-2600.
Other Maxwell Filing Persons
Although not parties to the Merger Agreement, each of the below entities is required to file a transaction statement on Schedule 13E-3 with respect to the proposed Merger as a result of their affiliation with Parent, Merger Sub, Mr. Maxwell, the Company and the Transactions subject to the Merger Agreement:
TxEx
TxEx is a Texas limited liability company formed in 2015. TxEx is a holding company and indirectly holds 4,000,000 shares of the Company’s Class B Common Stock and is the direct owner of Parent and Electric Holdco. Mr. Maxwell is the direct sole owner of TxEx.
TxEx’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
Electric Holdco
Electric Holdco is a Texas limited liability company formed in 2012. Electric Holdco is a holding company and indirectly holds 55,000 shares of the Company’s Class B Common Stock and is the direct owner of NuDevco Retail Holdings. Mr. Maxwell is the indirect sole owner of Electric Holdco.
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Electric Holdco’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
NuDevco Retail Holdings
NuDevco Retail Holdings is a Texas limited liability company formed in 2014. NuDevco Retail Holdings is a holding company and indirectly holds 55,000 shares of the Company’s Class B Common Stock and is the direct owner of NuDevco Retail. Mr. Maxwell is the indirect sole owner of NuDevco Retail Holdings.
NuDevco Retail Holdings’ address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600- 2600.
NuDevco Retail
NuDevco Retail is a Texas limited liability company formed in 2014. NuDevco Retail is a holding company and holds 55,000 shares of the Company’s Class B Common Stock. Mr. Maxwell is the indirect sole owner of NuDevco Retail.
NuDevco Retail’s address is 12140 Wickchester Ln., Ste 100, Houston, Texas 77079 and its telephone number is (713) 600-2600.
Business and Background of Natural Persons Related to the Company
Each of the Company’s directors and executive officers listed below is a United States citizen. None of the Company nor any of the Company’s directors or executive officers listed below has been (a) convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding during the past five years that resulted in a judgment, decree or final order enjoining that person from future violations of, or prohibiting future activities subject to, federal or state securities laws or a finding of any violation of federal or state securities laws. The business address of each of the Company’s executive officers and directors is c/o Via Renewables, Inc., 12140 Wickchester Lane, Suite 100, Houston, Texas 77079, and their business telephone number is (713) 600-2600.
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The Company’s directors and executive officers are listed below.
Name
Age
Position
W. Keith Maxwell, III
59
Chief Executive Officer, Chairman of the Board of Directors, Director
Mike Barajas
40
Chief Financial officer
Paul Konikowski
52
Chief Operating Officer
Amanda E. Bush(1)(2*)(3)(4*)
42
Director
Kenneth M. Hartwick(1*)(2)(3)(4)
61
Director
Stephen Kennedy(1)(2)(3)(4)
62
Director
(1)
Member of the Compensation Committee of the Company.
(2)
Member of the Audit Committee of the Company.
(3)
Member of the Nominating and Corporate Governance Committee of the Company.
(4)
Member of the Special Committee.
*
Chair of specified committee.
A biography for each of the Company’s current directors and executive officers is set forth below.
Directors
W. Keith Maxwell III. Mr. Maxwell has served as the Company’s Chief Executive Officer since November 2020, and as a director and non-executive Chairman of the Board of Directors since August 2014. Mr. Maxwell served as interim Chief Executive Officer from March 2020 to November 2020. Mr. Maxwell serves as the Chief Executive Officer of NuDevco Partners, LLC, Parent, Retailco Services, LLC (“Retailco Services”) and National Gas & Electric, LLC, each of which is affiliated with the Company. Mr. Maxwell served on the Board of Directors of Azure Midstream Partners GP, LLC, the general partner of a midstream energy company, from February 2015 until February 2016. Prior to that time, he served as Chairman of the Board of Marlin Midstream GP, LLC (formerly Marlin Midstream Partners, LP). Prior to founding the predecessor of Via Renewables, Inc. in 1999, Mr. Maxwell was a founding partner in Wickford Energy, an oil and natural gas services company, in 1994. Wickford Energy was sold to Black Hills Utilities in 1997. Prior to Wickford Energy, Mr. Maxwell was a partner in Polaris Pipeline, a natural gas producer, services and midstream company sold to TECO Pipeline in 1994. In 2010, Mr. Maxwell was named Ernst & Young Entrepreneur of the Year in the Energy, Chemicals and Mining category. A native of Houston, Texas, Mr. Maxwell earned a Bachelor’s Degree in Economics from the University of Texas at Austin in 1987. Mr. Maxwell has several philanthropic interests, including the Special Olympics, Child Advocates, Salvation Army, Star of Hope and Helping a Hero. The Company believes that Mr. Maxwell’s extensive energy industry background, leadership experience developed while serving in several executive positions and strategic planning and oversight brings important experience and skill to the Board.
Amanda E. Bush. Ms. Bush has served as a director of the Company since August 2019. Ms. Bush currently serves as the Chief Financial Officer of Laser Midstream, a position she has held since February 2022. Prior to joining Laser Midstream, Ms. Bush served as the Chief Financial Officer of Azure Midstream Energy, LLC, a midstream energy company, from June 2017 through February 2022. Prior to joining Azure Midstream Energy, LLC, she was the Chief Financial Officer at Marlin Midstream Partners, LP, a midstream energy company, from April 2013 to June 2017. Ms. Bush served as Chief Financial Officer of Via Renewables, Inc. from May 2012 to April 2013, and prior to that held positions in various other finance roles with Via Renewables, Inc. Ms. Bush began her career in public accounting with PwC. Ms. Bush has a master’s degree in accounting from the University of Houston and is a Texas certified public accountant. Ms. Bush was selected to serve as a director because of her extensive financial expertise and knowledge of the retail natural gas and electricity business.
Kenneth M. Hartwick. Mr. Hartwick has served as a director of the Company since August 2014. Mr. Hartwick currently serves as Chief Executive Officer and previously as the Senior Vice President and Chief Financial Officer of Ontario Power Generation, Inc., an electricity producer, a position he has held since April 2019. Previously, Mr. Hartwick served as Senior Vice President and Chief Financial Officer of Ontario Power Generation, Inc., from March 2016 to April 2019. Mr. Hartwick also serves as a director of MYR Group, Inc., an electrical contractor specializing in transmission, distribution, and substation projects, a position he has held
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since 2015. Mr. Hartwick served as the Chief Financial Officer of Wellspring Financial Corporation, a sales financing company, from February 2015 until March 2016. Mr. Hartwick also served as the interim Chief Executive Officer of Atlantic Power Corporation, a power generation plant operator, from September 2014 until January 2015 and as a director of Atlantic Power Corporation from October 2004 until March 2016. He has served in various roles for Just Energy Group Inc., most recently serving as President and Chief Executive Officer from 2004 to February 2014. Mr. Hartwick also served as President of Just Energy Group Inc. from 2006 to 2008, as Chief Financial Officer from 2004 to 2006, and as a director from 2008 to February 2014. Mr. Hartwick also served as the Chief Financial Officer of Hydro One, Inc., an energy distribution company, from 2002 to 2004. Mr. Hartwick holds an Honours of Business Administration degree from Trent University. Mr. Hartwick was selected to serve as a director because of his extensive knowledge of the retail natural gas and electricity business and his leadership and management expertise.
Stephen Kennedy. Mr. Kennedy has served as a director of the Company since June 2023. Mr. Kennedy is currently employed as Managing Director at Opportune, LLP. Mr. Kennedy was Founder & Senior Advisor – Energy Group for Amegy Bank from May 2022 until December 2023. Prior to that, he was EVP & Head of Energy Banking at Amegy for 25 years. Before his time with Amegy, he held a position as VP of Energy Banking at Wells Fargo. Prior to joining Wells Fargo, Mr. Kennedy held a position of AVP of Energy Banking at Bank One. He holds an M.B.A. with a concentration in Finance from Baylor University and received his Bachelor of Science degree in Petroleum Engineering from Texas A&M University. He has authored several articles on energy matters, including one regarding energy derivatives published in the October 2005 edition of the “Oil & Gas Financial Journal.” He also served as the President of the Petroleum Club of Houston from 2022 to 2023 and is a founding board member of the Houston Energy Forum. Mr. Kennedy was selected to serve as a director because of his extensive knowledge of the energy industry and his financial expertise.
Executive Officers
Mike Barajas. Mr. Barajas serves as the Company’s Chief Financial Officer, a position he has held since November 2021. Immediately prior to his appointment as Chief Financial Officer, Mr. Barajas served as the Company’s Vice President of Finance and Investor Relations. Mr. Barajas oversees the Company’s accounting, tax, SEC reporting, treasury, financial planning and analysis, and investor relations functions. He is also the Chief Risk Officer. Prior to rejoining the Company in 2019, Mr. Barajas worked for several energy companies including Spark Energy from 2009 to 2014, Marlin Midstream, Xcalibur Logistics, and NG&E with leadership experience in accounting, finance, mergers & acquisitions, and treasury. Mr. Barajas holds a Master of Science in Accounting and a Bachelor of Business Administration from the C.T. Bauer College of Business at The University of Houston. Mr. Barajas is a Certified Public Accountant in the state of Texas.
Paul Konikowski. Mr. Konikowski has served as the Company’s Chief Operating Officer since November 2021. Immediately prior to his appointment as Chief Operating Officer, Mr. Konikowski served as Senior Vice President and General Manager of NG&E, a position he had held since April 2015. Prior to NG&E, Mr. Konikowski served as Chief Operating Officer of Glacial Energy and Senior Vice President and Chief Information Officer of Via Renewables, Inc. (formerly Spark Energy, Inc.). Mr. Konikowski has extensive retail energy experience spanning more than 20 years including, sales, operations, risk and IT. Mr. Konikowski holds a Bachelor of Business Administration in Computer Information Systems and Marketing from Stephen F. Austin State University.
Business and Background of Persons Related to the Maxwell Filing Persons
The name, current principal occupation or employment and material occupations, telephone numbers, positions, offices or employment for the past five years of each director and executive officer of Parent, Merger Sub, TxEx, Electric Holdco, NuDevco Retail Holdings, and NuDevco Retail are set forth below. Each of the directors and executive officers listed below is a United States Citizen. The business address of each of the executive officers and directors listed below is 12140 Wickchester Lane, Suite 100, Houston, Texas 77079, and their business telephone number is (713) 600-2600.
For Each of Parent, TxEx, Electric Holdco, NuDevco Retail Holdings, and NuDevco Retail
W. Keith Maxwell, III. Mr. Maxwell has been the Chief Executive Officer for more than the past five years.
Michael Tsang. Mr. Tsang has been the President for more than the past five years.
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Todd Gibson. Mr. Gibson has been the Executive Vice President and Chief Financial Officer for more than the past five years.
Casey Marcin. Ms. Marcin has been the General Counsel and Secretary since August 2023. From July 2023 to August 2023, she was Assistant General Counsel. Prior thereto, she was in private legal practice.
Merger Sub
W. Keith Maxwell, III. Mr. Maxwell is the President and Secretary of Merger Sub.
Transactions between the Company and the Maxwell Filing Persons
Under the SEC rules governing “going-private” transactions, the Maxwell Filing Persons are affiliates of the Company and, therefore, are required to provide certain information in respect of agreements, arrangements and understandings with respect to securities of the Company. The Maxwell 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 Merger Agreement
See “The Merger Agreement” on page 77.
Support Agreement
See “The Merger Agreement—Support Agreement” on page 95.
Transactions with Related Persons
Organizational Structure
W. Keith Maxwell III is the Chairman of the Board and the owner of a majority in voting power of our Common Stock through his ownership of NuDevco Retail and Parent. Parent is a wholly owned subsidiary of TxEx and wholly owned by Mr. Maxwell. NuDevco Retail is a wholly owned subsidiary of NuDevco Retail Holdings and wholly owned subsidiary of Electric Holdco, which is also a wholly owned subsidiary of TxEx. In addition, Mr. Maxwell is also the indirect or direct owner of RetailCo Services, Associated Energy Services, LP, Retail Acquisition Co. LLC and NG&E, which are described in the following sections addressing related party transactions since January 1, 2022.
Spark HoldCo, LLC Limited Liability Company Agreement
At the closing of the Company’s initial public offering, the Company entered into the Second Amended and Restated Limited Liability Company Agreement of Spark HoldCo, LLC, a Delaware limited liability company (“Spark HoldCo”), by and among the Company, Spark HoldCo, NuDevco Retail and NuDevco Retail Holdings. In connection with the issuance of the Company’s Series A Preferred Stock in March 2017, the Company, Spark HoldCo, NuDevco Retail and Parent (as successor to NuDevco Retail Holdings) entered into the Third Amended and Restated Spark HoldCo, LLC Limited Liability Company Agreement to amend the prior agreement to provide for, among other things, the designation and issuance of Spark HoldCo Series A preferred units, as another equity security of Spark HoldCo to be issued concurrently with the issuance of Series A Preferred Stock by the Company, including specific terms relating to distributions by Spark HoldCo in connection with the payment by the Company of dividends on the Series A Preferred Stock, the priority of liquidating distributions by Spark HoldCo, the allocation of income and loss to the Company in connection with distributions by Spark HoldCo on Series A preferred units, and other terms relating to the redemption and conversion by the Company of the Series A Preferred Stock. Amendment No. 1 to the Third Amended and Restated Spark HoldCo, LLC Limited Liability Company Agreement was entered into by the Company, Spark HoldCo, NuDevco Retail and Parent in connection with the issuance of additional Series A Preferred Stock in February 2018, and Amendment No. 2 to the Third Amended and Restated Spark HoldCo, LLC Limited Liability Company Agreement (as amended, the “Spark HoldCo LLC Agreement”) was entered into in March 2020.
In accordance with the terms of the Spark HoldCo LLC Agreement, NuDevco Retail and Parent generally have the right to exchange their Spark HoldCo common units (and a corresponding number of shares of the Company’s Class B Common Stock) for shares of the Company’s Class A Common Stock at an exchange ratio
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of one share of Class A Common Stock for each Spark HoldCo common unit (and corresponding share of Class B Common Stock) exchanged, subject to conversion rate adjustments for stock splits, stock dividends and reclassifications. At the Company or Spark HoldCo’s option, Spark HoldCo may give NuDevco Retail and Parent cash in an amount equal to the Cash Election Amount of the shares of Class A Common Stock instead. The Company is obligated to facilitate an exchange for shares of Class A Common Stock through a contribution of shares of Class A Common Stock to Spark HoldCo or, alternatively, the Company has the right to acquire the subject Spark HoldCo common units and corresponding shares of Class B Common Stock from NuDevco Retail or Parent by paying, at the Company’s option, either (x) the number of shares of Class A Common Stock NuDevco Retail or Parent would have received in the proposed exchange or (y) cash in an amount equal to the Cash Election Amount of such shares of Class A Common Stock. “Cash Election Amount” means, with respect to the shares of Class A Common Stock to be delivered to NuDevco Retail or Parent by Spark HoldCo pursuant to the Spark HoldCo LLC Agreement, (i) if the Company’s Class A Common Stock is then admitted to trading on a national securities exchange, the amount that would be received if the number of shares of Class A Common Stock to which NuDevco Retail or Parent would otherwise be entitled were sold at a per share price equal to the trailing 30-day volume weighted average price of a share of Class A Common Stock on such exchange, or (ii) in the event shares of Class A Common Stock are not then admitted to trading on a national securities exchange, the value that would be obtained in an arm’s length transaction for cash between an informed and willing buyer and an informed and willing seller, neither of whom is under any compulsion to purchase or sell, respectively, and without regard to the particular circumstances of the buyer and the seller, as determined by the Company. As NuDevco Retail and Parent exchange their Spark HoldCo common units, the Company’s membership interest in Spark HoldCo will be correspondingly increased, and the number of shares of Class B Common Stock held by NuDevco Retail or Parent will be correspondingly reduced.
Under the Spark HoldCo LLC agreement, the Company has the right to determine when distributions will be made to the holders of Spark HoldCo common units and the amount of any such distributions. If the Company authorizes a distribution, such distribution will be made to the holders of Spark HoldCo common units on a pro rata basis in accordance with their respective percentage ownership of Spark HoldCo common units. The Spark HoldCo LLC Agreement provides, to the extent Spark HoldCo has available cash and is not prevented by restrictions in any of its credit agreements, for distributions pro rata to the holders of Spark HoldCo common units such that the Company receives an amount of cash sufficient to fund the targeted quarterly dividend that the Company intends to pay to holders of its Class A Common Stock, and distributions to the Company in an amount equal to the dividends to be paid by the Company on the Series A Preferred Stock.
The holders of Spark HoldCo units, including the Company, will generally incur U.S. federal, state and local income taxes on any taxable income of Spark HoldCo allocated to them. Generally, items of gross income and gain are first allocated to the Company until the cumulative amount of such items for current and prior fiscal years (or other relevant periods) equals the cumulative amount of distributions the Company receives to pay any special estimated tax liability. Second, items of income and gain are generally allocated to the Company until the cumulative amount of such items for current and prior fiscal years (or other relevant periods) equals the cash distributions the Company has received from Spark HoldCo to pay dividends on the Series A Preferred Stock and the amount of accrued and unpaid dividends on the Series A Preferred Stock. Third, items of gross income and gain are allocated to the Company until the cumulative amount of such items allocated to the Company for current and prior fiscal years (or other relevant periods) equals the cumulative amount of distributions received by the Company for a non-pro rata distribution to the Company from Spark HoldCo. Thereafter, net profits and net losses of Spark HoldCo generally will be allocated to members of Spark HoldCo to target capital account balances according to the amount a member would receive upon a deemed liquidation. Certain non-pro rata adjustments will be required to be made to reflect built-in gains and losses and tax depletion, depreciation and amortization with respect to such built-in gains and losses in allocating items of net profits and losses. The Spark HoldCo LLC Agreement provides, to the extent cash is available, for distributions pro rata to the holders of Spark HoldCo units such that the Company receives an amount of cash sufficient to cover the estimated taxes payable by the Company, and to the Company to cover any special estimated tax liability.
In addition, if the cumulative amount of U.S., federal, state or local taxes payable by the Company exceeds the amount of the tax distribution to the Company, Spark HoldCo will make advances to the Company in an amount necessary to enable the Company to fully pay these tax liabilities. Such advances will be repayable, without interest, solely from (i.e., by offset against) future distributions by Spark HoldCo to the Company.
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The Spark HoldCo LLC Agreement provides that if the Company issues a new share of Class A Common Stock, Series A Preferred Stock, or other equity security (other than shares of Class B Common Stock, and excluding issuances of Class A Common Stock upon an exchange of Class B Common Stock or Series A Preferred Stock), Spark HoldCo will concurrently issue a corresponding limited liability company unit either to the holder of the Class B Common Stock, or to the Company in the case of the issuance of shares of Class A Common Stock, Series A Preferred Stock or such other equity security. As a result, the number of Spark HoldCo units held by the Company always equals the number of shares of Class A Common Stock, Series A Preferred Stock or such other equity securities we have outstanding.
Spark HoldCo will be dissolved only upon the first to occur of (i) the sale of substantially all of its assets or (ii) an election by the Company to dissolve the company. Upon dissolution, Spark HoldCo will be liquidated and the proceeds from any liquidation will be applied and distributed in the following manner: (a) first, to creditors (including to the extent permitted by law, creditors who are members) in satisfaction of the liabilities of Spark HoldCo, (b) second, to establish cash reserves for contingent or unforeseen liabilities, (c) third, to the Company in respect of Spark HoldCo Series A preferred units in an amount equal to the total amount that would be required to be distributed by the Company in respect of Series A Preferred Stock, and (d) the balance thereafter to its members holding Spark HoldCo common units in proportion to the number of Spark HoldCo units owned by each of them.
The Spark HoldCo LLC Agreement also provides that Spark HoldCo will pay certain of the Company’s expenses attributable to its status as a public company. Such expenses include, but are not limited to, accounting and legal fees, independent director compensation, director and officer liability insurance expense, Sarbanes-Oxley compliance, transfer agent and registrar fees, tax return preparation, investor relations expense, SEC and NASDAQ compliance fees and the fees and expenses of other service providers that provide services to the Company in connection with our obligations as a publicly-traded company.
Registration Rights Agreement
On August 1, 2014, the Company entered into a registration rights agreement with NuDevco Retail and NuDevco Retail Holdings (a predecessor-in-interest to Parent) to register for sale under the Securities Act shares of the Company’s Class A Common Stock delivered in exchange for Spark HoldCo common units (together with an equal number of shares of the Company’s Class B Common Stock) in the circumstances described below. Parent became a party to this agreement in December 2015. This agreement provides NuDevco Retail and Parent, as holders of registrable securities under the agreement, with the right to require the Company, at the Company’s expense, to register shares of the Company’s Class A Common Stock held by them from time to time that are issuable upon exchange of Spark HoldCo units (together with an equal number of shares of the Company’s Class B Common Stock) for shares of the Company’s Class A Common Stock.
Demand Rights. Subject to certain limitations, NuDevco Retail and Parent have the right, by delivering written notice to the Company, to require the Company to register the number of shares of Class A Common Stock requested to be so registered in accordance with the registration rights agreement. Within 30 days of receipt of notice of a demand registration, the Company is required to give written notice to all other holders of registrable shares of Class A Common Stock. Subject to certain limitations as described below, the Company will use its commercially reasonable efforts to effect, as soon as commercially reasonable, the registration of all securities with respect to which it receives a written request.
Piggyback Rights. Subject to certain limitations, NuDevco Retail and Parent are entitled to request to participate in, or “piggyback” on, registrations of any of the Company’s Class A Common Stock for sale by the Company in an underwritten offering.
Conditions and Limitations. The registration rights outlined above are subject to conditions and limitations, including the right of the underwriters, as applicable, to limit the number of shares to be included in a registration statement and the Company’s right to delay, suspend or withdraw a registration statement under specified circumstances. For example, the Board may defer any filing for up to six months if the Board determines that such disclosure would have a material adverse effect on the Company.
If requested by the Company or an underwriter, NuDevco Retail and Parent will not be able to make any sale of the Company’s equity securities, except securities included in such registration, during a period commencing on the date beginning fourteen (14) days prior to the expected date of “pricing” of such offering and continuing for
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a period not to exceed 90 days beginning on the date of such final prospectus (or prospectus supplement if the offering is made pursuant to a shelf registration statement), or such shorter period as may be requested by an underwriter.
Expenses and Indemnification. In connection with any registration effected pursuant to the terms of the registration rights agreement, the Company is required to pay for all of the fees and expenses incurred in connection with such registration, including, without limitation, registration fees, qualification and filing fees and printing expenses. However, the underwriting discounts and selling commissions payable in respect of registrable securities included in any registration are to be paid by the persons including such registrable securities in any such registration on a pro rata basis. The Company has also agreed to indemnify the holders of registrable securities and each of their respective officers, directors, partners and agents, the underwriters, and each person who controls such holders or underwriters, against all losses, claims, damages and liabilities (joint or several) with respect to each registration effected pursuant to the registration rights agreement.
On September August 5, 2022, the Company filed a registration statement under the Securities Act on Form S-3 registering, among other things, the offer and sale, from time to time, of the Class A Common Stock held by Parent and NuDevco Retail (including Class A Common Stock that may be obtained upon conversion of Class B Common Stock). The registration statement was declared effective on August 16, 2022.
Indemnification Agreements
The Company has entered into indemnification agreements with each of its current executive officers and directors, including Mr. Maxwell. These agreements require the Company to indemnify these individuals to the fullest extent permitted under Delaware law against liabilities that may arise by reason of their service to the Company, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified.
Subordinated Debt Facility
The Company maintains a subordinated debt facility of up to $25.0 million with Spark HoldCo and Parent (the “Subordinated Debt Facility”), which was most recently amended and restated on June 30, 2022. The Subordinated Debt Facility allows the Company to draw advances in increments of no less than $1.0 million per advance up to $25.0 million through January 31, 2026. Borrowings are at the discretion of Parent. Advances thereunder accrue interest at an annual rate equal to the prime rate as published by the Wall Street Journal plus two percent (2.0%) from the date of the advance. The Subordinated Debt Facility is subordinated in certain respects to the Company’s Senior Credit Facility pursuant to a subordination agreement. Parent has the right to accelerate payment of principal and interest under the Subordinated Debt Facility upon the occurrence of certain change of control or sale transactions.
During the year ended December 31, 2023, the largest aggregate amount outstanding under the Subordinated Debt Facility was $25 million. As of December 31, 2023, the Company had no borrowings outstanding under the Subordinated Debt Facility. During the year ended December 31, 2023, the Company paid interest of less than $0.1 million under the Subordinated Debt Facility.
Historical Transactions with Affiliates
The Company enters into transactions with and pay certain costs on behalf of affiliates (specifically, TexEx Energy Operating, LLC, and NG&E that are commonly controlled in order to reduce risk, reduce administrative expense, create economies of scale, create strategic alliances and supply goods and services to these related parties. The Company also sells natural gas to NG&E. Affiliated transactions include certain services to the affiliated companies associated with employee benefits provided through the Company’s benefit plans, insurance plans, leased office space, administrative salaries, due diligence work, recurring management consulting, and accounting, tax, legal, or technology services. Amounts billed are based on the services provided, departmental usage, or headcount, which are considered reasonable by management. Where costs incurred on behalf of the affiliate or the Company cannot be determined by specific identification for direct billing, the costs are allocated to the affiliated entities or the Company based on estimates of percentage of departmental usage, wages or headcount. As such, the Company’s financial statements include costs that have been incurred by the Company and then directly billed or allocated to affiliates, as well as costs that have been incurred by the Company’s
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affiliates and then directly billed or allocated to the Company. The paragraphs below describe transactions arising from historical relationships that existed between the Company and other affiliates for the year ended December 31, 2023.
Cost allocations
The total net amount direct billed and allocated to affiliates was $1.5 million for the year ended December 31, 2023. These amounts include the payments for administrative costs for information technology, power and gas supply, employee benefits and other services with NG&E, TxEx, Parent and other affiliated entities. These amounts also include the payments discussed in more detail below under the heading “—Office Lease and Facilities” and “—Transactions with NG&E.”
Office Lease and Facilities
The Company shares its corporate headquarters with certain of its affiliates. NuDevco Midstream Development, LLC, an indirect subsidiary of TxEx, is the lessee under the current lease agreement covering the Company’s corporate headquarters. NuDevco Midstream Development, LLC pays the entire lease payment and facilities charges on behalf of the affiliates of TxEx, and the Company reimburses NuDevco Midstream Development, LLC for the Company’s share. During the year ended December 31, 2023, the Company paid affiliates $0.5 million in lease payments and facilities charges.
Transactions with NG&E
Retail revenues-affiliates recorded in net asset optimization revenues in the combined statements of operations for the year ended December 31, 2023 were $3.3 million. Cost of revenues-affiliates recorded in net asset optimization revenues in the combined statements of operations for the year ended December 31, 2023 were $0.3 million.
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THE SPECIAL MEETING
Date, Time and Place
This Proxy Statement is being furnished to the shareholders of the Company as part of the solicitation of proxies by the Board for use at the Special Meeting to be held at 10:00 AM, Central Time, on Thursday, May 23, 2024, via live webcast on the Internet at www.virtualshareholdermeeting.com/VIA2024SM or at any adjournment or postponement thereof.
The purpose of the Special Meeting is for the shareholders of the Company to consider and vote on the Merger Proposal. The Requisite Company Vote must be obtained for the Merger to occur. A copy of the Merger Agreement is attached to this Proxy Statement as Appendix A. This Proxy Statement and the enclosed form of proxy and voting instruction card are first being mailed to the shareholders of the Company on March 28, 2024.
In addition, in accordance with Section 14A of the Exchange Act, the Company is providing its shareholders with the opportunity to cast a non-binding, advisory vote on the Compensation Proposal, the value of which is disclosed in the table in the section of this Proxy Statement entitled “Advisory Vote on Golden Parachute Compensation” beginning on page 96. The vote on the Compensation Proposal is a vote separate and apart from the vote on the Merger Proposal. Accordingly, a shareholder may vote to approve the Compensation Proposal and vote against the Merger Proposal, or vice versa. Because the vote on the Compensation Proposal is advisory in nature only, it will not be binding on either the Company or Parent. Accordingly, because the Company is contractually obligated to pay certain of the compensation if the Merger is approved, the compensation will become payable if the Merger closes, subject only to the conditions applicable thereto, regardless of the outcome of the advisory vote. Further, the holders of the Common Stock will consider and vote on the Adjournment Proposal, from time to time, if necessary or appropriate (as determined in good faith by the Company), to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to obtain the Requisite Company Vote.
Record Date and Quorum
Pursuant to Section 251(c) of the DGCL, all shareholders of record of the Company, whether voting or nonvoting, at the close of business on March 25, 2024 (i.e., the Record Date), are entitled to notice of the Special Meeting. Only the holders of record of Common Stock as of the close of business on the Record Date (March 25, 2024) are additionally entitled to receive notice of and to vote at the Special Meeting. As of the Record Date, 3,232,701 shares of Class A Common Stock were outstanding and entitled to be voted at the Special Meeting and 4,000,000 shares of Class B Common Stock were outstanding and entitled to be voted at the Special Meeting. Holders of shares of Series A Preferred Stock generally have no voting rights and, accordingly, are not entitled to vote on any matters at the Special Meeting.
The presence at the Special Meeting via live webcast on the Internet or by proxy, of the holders of a majority of the issued and outstanding shares of Common Stock entitled to vote on the Record Date will constitute a quorum, permitting the Company to conduct its business at the Special Meeting. Proxies received but marked as abstentions will be included in the calculation of the number of shares of Common Stock considered to be present at the Special Meeting. Broker non-votes, as described below under “The Special Meeting—Required Vote—Broker Non-Votes,” will not be considered to be present for purposes of determining whether a quorum exists.
Required Vote
The Merger cannot be consummated unless the Company obtains the Requisite Company Vote, which includes both (i) the approval of the holders of at least a majority of the issued and outstanding shares of Common Stock and (ii) the Majority of the Minority Shareholder Approval. If you abstain from voting on, or fail to vote on the Merger Proposal (including the failure of a Company shareholder who holds their shares of Common Stock in “street name” through a bank, broker or other nominee to give voting instructions to such bank, broker or other nominee with respect to the Merger Proposal), the effect will be the same as a vote “AGAINST” the Merger Proposal. Under the Support Agreement, Parent, Merger Sub, Mr. Maxwell, TxEx, Electric Holdco, NuDevco Retail Holdings, and NuDevco Retail agreed to vote their shares of Common Stock in favor of the approval and adoption of the Merger Agreement and the Transactions, including the Merger. A copy of the Support Agreement is attached as Appendix B to this Proxy Statement.
The Compensation Proposal and the Adjournment Proposal require the affirmative vote of the majority of the shares of Common Stock present or represented by proxy at the Special Meeting and entitled to vote thereon.
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Broker Non-Votes
Banks, brokers and other nominees who hold Common Stock in “street name” for their customers do not have discretionary authority to vote those shares of Common Stock with respect to the Merger Proposal, the Compensation Proposal or the Adjournment Proposal. Accordingly, if banks, brokers or other nominees do not receive specific voting instructions from the beneficial owners of those shares of Common Stock, they are not permitted to vote those shares of Common Stock with respect to any of the proposals to be presented at the Special Meeting. A “broker non-vote” occurs on an item when (1) a bank, broker or other nominee has discretionary authority to vote on one or more proposals to be voted on at a meeting of shareholders, but is not permitted to vote on other proposals without instructions from the beneficial owner of the shares of Common Stock and (2) the beneficial owner fails to provide the bank, broker or other nominee with such instructions. Because all of the proposals currently expected to be voted on at the Special Meeting are non-routine matters for which brokers do not have discretionary authority to vote, the Company does not expect there to be any broker non-votes at the Special Meeting.
Abstentions
Proxies received but marked as abstentions will be included in the calculation of the number of shares of Common Stock represented at the Special Meeting for purposes of determining whether a quorum is present. Such proxies will have the same effect as a vote “AGAINST” the Merger Proposal, the Compensation Proposal and the Adjournment Proposal.
Voting; Proxies; Revocation
Attendance
All holders of the Common Stock as of the close of business on March 25, 2024, the Record Date, including shareholders of record and beneficial owners of Common Stock registered in the “street name” of a bank, broker or other nominee, are invited to attend the Special Meeting virtually.
Voting
Shareholders of the Company of record will be able to vote via live webcast on the Internet at the Special Meeting. If you are not a shareholder of record, but instead hold your shares of Common Stock in “street name” through a bank, broker or other nominee, you must provide a proxy executed in your favor from your bank, broker or other nominee in order to be able to vote via live webcast on the Internet at the Special Meeting.
Providing Voting Instructions by Proxy
To ensure that your shares of Common Stock are represented at the Special Meeting, the Company recommends that you provide voting instructions promptly by proxy, even if you plan to attend the Special Meeting virtually.
Record Holders
If you are a shareholder of record, you may provide voting instructions by proxy using one of the methods described below.
Submit a Proxy by Telephone or via the Internet. This Proxy Statement is accompanied by a proxy and voting instruction card with instructions for submitting voting instructions. You may vote by telephone by calling the toll-free number or via live webcast on the Internet by visiting www.virtualshareholdermeeting.com/VIA2024SM as specified on the enclosed proxy and voting instruction card by the deadlines set forth on the card. Your shares of Common Stock will be voted as you direct in the same manner as if you had completed, signed, dated and returned your proxy and voting instruction card, as described below.
Submit a Proxy and Voting Instruction Card. If you complete, sign, date and return the enclosed proxy and voting instruction card by mail so that it is received before the Special Meeting, your shares of Common Stock will be voted in the manner directed by you on your proxy and voting instruction card.
If you sign, date and return your proxy and voting instruction card without indicating how you wish to vote, your proxy will be voted “FOR” the Merger Proposal, the Compensation Proposal and the Adjournment Proposal. If you fail to return your proxy and voting instruction card, the effect will be that your shares of Common Stock will not be
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counted for purposes of determining whether a quorum is present at the Special Meeting (unless you are a record holder as of the Record Date and attend the Special Meeting) and will have the same effect as a vote “AGAINST” the Merger Proposal, the Compensation Proposal and the Adjournment Proposal.
“Street Name” shares of Common Stock
If your shares of Common Stock are held by a bank, broker or other nominee on your behalf in “street name,” your bank, broker or other nominee will send you instructions as to how to provide voting instructions for your shares of Common Stock by proxy. Many banks and brokerage firms have a process for their customers to provide voting instructions by telephone or via the Internet, in addition to providing voting instructions by proxy card.
Revocation of Proxies
Your proxy is revocable. If you are a shareholder of record, you may revoke your proxy at any time before the vote is taken at the Special Meeting by:
submitting a new proxy with a later date, by using the telephone or Internet proxy submission procedures described above, or by completing, signing, dating and returning a new proxy and voting instruction card by mail to the Company;
attending the Special Meeting via live webcast on the Internet by visiting www.virtualshareholdermeeting.com/VIA2024SM and voting via the internet; or
giving written notice of revocation to the Secretary of the Company at Via Renewables, Inc., 12140 Wickchester Ln., Suite 100 Houston, Texas 77079 (which notice must be received by the Company prior to the day of the Special Meeting) or by giving notice of revocation at the Special Meeting.
Attending the Special Meeting without taking one of the actions described above will not revoke your proxy. Please note that if you want to revoke your proxy by mailing a new proxy and voting instruction card to the Company or by sending a written notice of revocation to the Company, you should ensure that you send your new proxy and voting instruction card or written notice of revocation in sufficient time for it to be received by the Company before the day of the Special Meeting.
If you hold your shares of Common Stock in “street name” through a bank, broker or other nominee, you will need to follow the instructions provided to you by it in order to revoke your proxy or submit new voting instructions.
Adjournments and Postponements
The Special Meeting may be adjourned or postponed from time to time, including for the purpose of soliciting additional proxies if there are insufficient votes at the time of the Special Meeting to obtain the Requisite Company Vote. If there is present or represented by proxy at the Special Meeting, sufficient favorable votes to approve the Merger Proposal, the Company does not anticipate that it will adjourn or postpone the Special Meeting. Any signed proxies received by the Company in which no voting instructions are provided on the Adjournment Proposal will be voted “FOR” the Adjournment Proposal if the proposal is introduced.
Solicitation of Proxies
The Company will bear the cost of the solicitation of proxies. This includes the charges and expenses of brokerage firms and others for forwarding solicitation material to beneficial owners of the Company’s outstanding Common Stock. The Company may solicit proxies by mail, personal interview, email, telephone, or via the Internet. The Company has retained Alliance Advisors, LLC (“Alliance Advisors”), a proxy solicitation firm, to assist it in the solicitation of proxies for the Special Meeting and will pay Alliance Advisors a fee not expected to exceed $10,000.00, plus reimbursement of out-of-pocket expenses. In addition, the Company has agreed to indemnify Alliance Advisors against certain liabilities, including liabilities arising under the federal securities laws. Brokerage houses, nominees, fiduciaries and other custodians will be requested to forward soliciting materials to beneficial owners and will be reimbursed for their reasonable out-of-pocket expenses incurred in sending proxy materials to beneficial owners.
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APPROVAL OF THE MERGER AGREEMENT, MERGER AND TRANSACTIONS
(THE MERGER PROPOSAL)
General
The Company’s shareholders are being asked to approve the Merger Agreement, the Merger and the Transactions. For a summary of the Merger Agreement, the Merger and the Transactions, see “The Merger Agreement.” A copy of the Merger Agreement is attached as Appendix A to this Proxy Statement.
Required Vote
The approval of the Merger Proposal requires an affirmative vote of the holders of a majority of the issued and outstanding shares of Common Stock. Additionally, under the Merger Agreement, the Merger also cannot be consummated without the Majority of the Minority Shareholder Approval.
Recommendation
The Board of Directors (other than Mr. Maxwell) unanimously recommends shareholders vote FOR the Merger Proposal as disclosed in this Proxy Statement.
THE MERGER AGREEMENT
The following is a summary of the material provisions of the Merger Agreement, a copy of which is attached to this Proxy Statement as Appendix A, and which the Company incorporates by reference into this Proxy Statement. The provisions of the Merger Agreement are extensive and not easily summarized. The Company encourages you to read carefully the Merger Agreement in its entirety, as the rights and obligations of the parties to the Merger Agreement are governed by the express terms of the Merger Agreement and not by this summary or any other information contained in this Proxy Statement.
The Merger Agreement and this summary of its terms have been included to provide you with information regarding the terms of the Merger Agreement. Factual disclosures about the Company contained in this Proxy Statement or in the Company’s public reports filed with the SEC may supplement, update or modify the factual disclosures about the Company contained in the Merger Agreement and described in this summary. The representations, warranties and covenants made in the Merger Agreement by the Company, Parent and Merger Sub were qualified and subject to important limitations agreed to by the Company, Parent and Merger Sub in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations and warranties contained in the Merger Agreement and described in this summary, it is important to bear in mind that the representations and warranties were negotiated with the principal purposes of establishing the circumstances in which a party to the Merger Agreement may have the right not to close the Merger if the representations and warranties of the other party prove to be untrue, due to a change in circumstance or otherwise, and allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. The representations and warranties may also be subject to a contractual standard of materiality that is different from those generally applicable to shareholders and reports and documents filed with the SEC, and in some cases were qualified by disclosures that were made by each party to the Merger Agreement to the other, which disclosures are not reflected in the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties, which do not purport to be accurate as of the date of this Proxy Statement, may have changed since the date of the Merger Agreement, December 29, 2023. Additional information about the Company may be found elsewhere in this Proxy Statement and in the Company’s other public filings with the SEC. See “Where Shareholders Can Find More Information” beginning on page 119.
Structure of the Merger
At the Effective Time, Merger Sub will merge with and into the Company and the separate corporate existence of Merger Sub will cease. The Company will be the surviving corporation in the Merger and will continue to be a Delaware corporation after the Merger. At the Effective Time, the Amended and Restated Certificate of Incorporation and the Second Amended and Restated Bylaws of the Company, each as in effect immediately prior to the Effective Time, will be the Organizational Documents of the Surviving Corporation.
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The directors and officers of the Company immediately prior to the Effective Time will be the directors and officers of the Surviving Corporation and will serve until their successors have been duly elected or appointed and qualified or until their death, resignation or removal in accordance with the Organizational Documents of the Surviving Corporation.
When the Merger Becomes Effective
The closing of the Merger will take place at the Company’s offices no later than the second business day after the satisfaction or waiver of the conditions to closing provided for in the Merger Agreement (other than any condition that by its nature can only be satisfied until the by action taken at or immediately prior to the closing of the Merger, but subject to satisfaction of any such condition). The Merger will become effective at the date and time when the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware or at such later date and time as may be agreed by the parties to the Merger Agreement in writing and specified in the Certificate of Merger in accordance with the relevant provisions of the DGCL.
Effect of the Merger on the Capital Stock of the Company and Merger Sub
At the Effective Time:
each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time, other than the Excluded Shares and any Dissenting Shares, will be automatically canceled and converted into the right to receive the Merger Consideration;
all Excluded Shares (other than the Maxwell Shares) will be canceled without payment of any consideration thereof;
each Dissenting Share will be canceled and converted into the right to receive payment of such amounts that are payable in accordance with Section 262 of the DGCL and will not have the right to receive the Merger Consideration, unless and until such shareholder loses, waives or withdraws its rights as a dissenting Company shareholder;
each Maxwell Share issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class A Common Stock of the Surviving Corporation;
each share of Class B Common Stock issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Class B Common Stock of the Surviving Corporation;
as described below under “—Treatment of Company Equity Awards,” all of the (i) Company RSUs (other than the Maxwell RSUs), all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs, and (ii) Maxwell RSUs will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Maxwell RSUs, be canceled and extinguished, and no consideration will be delivered or deliverable therefor;
each share of Series A Preferred Stock issued and outstanding immediately prior to the Effective Time will be unchanged and remain issued and outstanding as Series A Preferred Stock of the Surviving Corporation; and
each share of capital stock of Merger Sub will be converted into and represent one fully-paid and nonassessable share of Class A Common Stock, so that, after the Effective Time, Parent will be the holder of all of the issued and outstanding shares of Class A Common Stock.
Following the consummation of the Merger, the (a) holders of the Class A Common Stock (other than Parent) will cease to have any ownership interest in the Company, (b) the registration of the Class A Common Stock and the Company’s reporting obligations with respect to the Class A Common Stock under the Exchange Act will be terminated upon application to the SEC and (c) the Class A Common Stock will no longer be listed on any stock exchange or quotation system, including the NASDAQ. The Merger will not have any impact on the registration
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of the Series A Preferred Stock under the Exchange Act or the continued listing of the Series A Preferred Stock on NASDAQ. Accordingly, the Company expects that it will continue to be subject to the Exchange Act and continue to file reports with the SEC under the Exchange Act.
Treatment of Company Equity Awards
At the Effective Time, the Company RSUs (other than the Maxwell RSUs), all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration ($11.00 per share) multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs. At the Effective Time, the Maxwell RSUs will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holder of such Maxwell RSUs, be canceled and extinguished and no consideration will be delivered or deliverable therefor. Each Company RSU and Maxwell RSU represents the right to receive, upon vesting, one share of Class A Common Stock, cash, or a combination of both, and also includes tandem dividend equivalents which will vest upon the same schedule as the underlying Company RSU or Maxwell RSU, as applicable.
Payment of Merger Consideration
At or prior to the Effective Time, Parent anticipates that it will designate the Company’s transfer agent, Equiniti Trust Company, LLC, to act as Paying Agent under the Merger Agreement for the purpose of exchanging shares of Class A Common Stock for the Merger Consideration and will enter into an agreement reasonably satisfactory to the Company and the Paying Agent relating to the services to be performed by the Paying Agent. At or prior to the Effective Time, Parent is required to irrevocably deposit, or cause to be deposited, with the Paying Agent, the aggregate Merger Consideration with respect to all shares of Class A Common Stock outstanding immediately prior to the Effective Time (other than the Excluded Shares). The Paying Agent will deliver the Merger Consideration according to the procedure summarized below.
As soon as reasonably practicable, but in no event more than two business days after the Effective Time, the Surviving Corporation will cause the Paying Agent to deliver a letter of transmittal to each person who was, as of immediately prior to the Effective Time, a shareholder of record of Class A Common Stock entitled to receive the Merger Consideration, (1) a customary letter of transmittal and (2) instructions for use in effecting the surrender of any Certificate(s), Book-Entry Share(s) and/or such other documents as may be required in exchange for the Merger Consideration. Upon surrender of a Certificate or in the case of Book-Entry Shares, the surrender of such shares, and/or such other documents as may be reasonably required by the Paying Agent in accordance with the terms of the letter of transmittal, each shareholder holding shares of Class A Common Stock represented by such Certificate or Book-Entry Share will be entitled to receive in exchange for such Certificate or Book-Entry Share an amount (after giving effect to any required tax withholdings) equal to (1) the number of shares of Class A Common Stock represented by such Certificate or Book-Entry Share multiplied by (2) $11.00 (i.e., the Merger Consideration), and the surrendered Certificate or Book-Entry Share will be canceled.
At the Effective Time, each share of Class A Common Stock issued and outstanding immediately prior to the Effective Time (other than the Excluded Shares) will be canceled and converted into the right to receive the Merger Consideration, without interest and less any applicable withholding taxes.
At the Effective Time, all of the Company RSUs other than the Maxwell RSUs, all of which are held by current and former employees and directors of the Company, including its executive officers, will, by virtue of the Merger and without any action by Parent, Merger Sub, the Company or the holders of such Company RSUs, be canceled, extinguished and converted into the right to receive an amount in cash, without interest, equal to the product of (a) the Merger Consideration ($11.00 per share) multiplied by (b) the total number of shares of Common Stock underlying the Company RSUs. At the Effective Time, all of the Maxwell RSUs will automatically be canceled and extinguished, and no consideration therefor will be delivered or deliverable to Mr. Maxwell.
Additionally, not later than the Effective Time, Parent is required to provide, or cause to be provided, to the Company, all funds necessary to pay the Merger Consideration owed to the holders of the Company RSUs, which such payments will be made through the Company’s payroll not later than the first payroll date following the Effective Time.
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The Paying Agent will return to the Surviving Corporation all funds in its possession on the 365th date after the closing date of the Merger, and the Paying Agent’s duties will terminate. After that time, if you have not received payment of the Merger Consideration, you may look only to the Surviving Corporation payment of the Merger Consideration, without interest, subject to applicable abandoned property, escheat and similar laws.
Representations and Warranties
The Merger Agreement contains representations and warranties of the Company as to, among other things:
corporate organization, existence and good standing, including with respect to the Company’s subsidiaries;
the capitalization of the Company, including in particular the number of shares of Common Stock, Series A Preferred Stock and Company RSUs outstanding and the existence of any preemptive rights or conversion rights with respect to the Common Stock or any shareholder agreements voting trusts or other agreements to which the Company is a party or by which it is bound relating to the voting of any shares of Common Stock and Series A Preferred Stock;
corporate power and authority to enter into the Merger Agreement and the Transactions;
the absence of certain violations, defaults or consent requirements under certain contracts, organizational documents and law, in each case arising out of the execution and delivery of, and consummation of, Transactions;
required regulatory filings and authorizations, consents or approvals of government entities and consents or approvals required of other third parties and compliance with laws;
the accuracy of the Company’s filings with the SEC and of the financial statements included in the SEC filings;
conduct of the Company’s business and the absence of a Company Material Adverse Effect (as defined in the Merger Agreement and in this Proxy Statement) since September 30, 2023;
the absence of undisclosed material liabilities of the Company and its subsidiaries;
the accuracy of the supplied Company information on the Schedule 13E-3 and Proxy Statement;
necessary permits, licenses, variances, exemptions, orders, franchises and approvals necessary for the lawful conduct of the Company and its subsidiaries’ respective businesses, and compliance with laws by the Company and its subsidiaries;
employee benefit plans;
labor and employment matters;
the payment of taxes, the filing of tax returns and other tax matters related to the Company and its subsidiaries;
the absence of certain litigation;
ownership of rights with respect to the intellectual property;
title to real property owned or leased;
compliance with applicable environmental laws;
material contracts of the Company and its subsidiaries;
insurance policies;
receipt of an opinion from B. Riley;
the absence of any fees. expenses or commissions owed to investment bankers, finders or brokers in connection with the Merger, except for the fees and expenses payable to B. Riley; and
absence of additional representations or warranties.
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The Merger Agreement also contains representations and warranties of Parent and Merger Sub as to, among other things:
corporate organization and good standing and Parent’s and Merger Sub’s share ownership;
power and authority to enter into the Merger Agreement and to consummate the Transactions;
required regulatory filings and authorizations, consents or approvals of government entities and consents or approvals required of other third parties;
the accuracy of the information provided by Parent and Merger Sub to be included in this Proxy Statement and Schedule 13E-3;
the absence of certain litigation;
the availability of funds from Parent to pay the Merger Consideration and related expenses;
the absence of any fees or commissions owed by Parent or Merger Sub to investment bankers, finders or brokers in connection with the Merger;