UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
THE GOLDFIELD CORPORATION
(Name of Subject Company (Issuer))
FR UTILITY SERVICES MERGER SUB, INC.
(Offeror)
A direct wholly owned subsidiary of
FR UTILITY SERVICES, INC.
(Parent of Offeror)
FIRST RESERVE FUND XIV, L.P.
(Other Person)
(Names of Filing Persons (identifying status as Offeror, Issuer or Other Person))
COMMON STOCK, PAR VALUE $0.10 PER SHARE
(Title of Class of Securities)
381370105
(CUSIP Number of Class of Securities)
Anne E. Gold
FR Utility Services Merger Sub, Inc.
290 Harbor Drive
Stamford, CT 06902
(203) 661-6601
(Name, address, and telephone numbers of person authorized to receive notices and communications on behalf of filing persons)
Copies to:
Michael T. Holick
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
(212) 455-2000
CALCULATION OF FILING FEE
Transaction Valuation(1) | Amount of Filing Fee(2) | |
$173,967,738 | $18,979.89 | |
(1) |
Estimated for purposes of calculating the amount of the filing fee only. The transaction valuation was calculated by adding the sum of (i) 24,522,534 shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield) issued and outstanding multiplied by the offer price of $7.00 per share, and (ii) 330,000 Shares issuable pursuant to outstanding restricted stock units multiplied by the offer price of $7.00 per share. The foregoing share figures have been provided by Goldfield and are as of November 30, 2020, the most recent practicable date. |
(2) |
The amount of the filing fee was calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory #1 for fiscal year 2021 beginning on October 1, 2020, issued August 26, 2020, by multiplying the transaction value by 0.0001091. |
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Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing. |
Amount Previously Paid: N/A | Filing Party: N/A | |
Form of Registration No.: N/A | Date Filed: N/A |
☐ |
Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
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Third-party tender offer subject to Rule 14d-1. |
☐ |
Issuer tender offer subject to Rule 13e-4. |
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Going-private transaction subject to Rule 13e-3. |
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Amendment to Schedule 13D under Rule 13d-2. |
Check the appropriate boxes below to designate any transactions to which the statement relates: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
☐ |
Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
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Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
This Tender Offer Statement on Schedule TO (together with any amendments and supplements hereto, this Schedule TO) is being filed by (i) FR Utility Services, Inc., a Delaware corporation (Parent), (ii) FR Utility Services Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (the Purchaser), and (iii) First Reserve Fund XIV, L.P., a Cayman Islands limited partnership, or an affiliate thereof, which is the controlling stockholder of both Parent and the Purchaser. This Schedule TO relates to the tender offer for all of the issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a price of $7.00 per Share, net to the seller in cash without interest and less any applicable withholding taxes (the Offer Price), upon the terms and conditions set forth in the offer to purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), a copy of which is attached as Exhibit (a)(1)(A), and in the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer), a copy of which is attached as Exhibit (a)(1)(B).
All the information set forth in the Offer to Purchase is incorporated by reference herein in response to Items 1 through 9 and Item 11 in this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.
Item 1. |
Summary Term Sheet. |
The information set forth in the Offer to Purchase under the caption SUMMARY TERM SHEET is incorporated herein by reference.
Item 2. |
Subject Company Information. |
(a) The name, address, and telephone number of the subject companys principal executive offices are as follows:
The Goldfield Corporation
1684 West Hibiscus Blvd.
Melbourne, FL 32901
(321) 724-1700
(b) This Schedule TO relates to the Offer by the Purchaser to purchase all issued and outstanding Shares. According to Goldfield, as of the close of business on November 30, 2020, there were 24,522,534 Shares and 330,000 restricted stock units issued and outstanding.
(c) The information set forth under the caption THE TENDER OFFER - Section 6 (Price Range of Shares; Dividends) of the Offer to Purchase is incorporated herein by reference.
Item 3. |
Identity and Background of Filing Person. |
(a)-(c) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER - Section 8 (Certain Information Concerning Parent and the Purchaser) and Schedule I attached thereto.
Item 4. |
Terms of the Transaction. |
(a) The information set forth in the Offer to Purchase is incorporated herein by reference, including the following sections incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER - Section 1 (Terms of the Offer)
THE TENDER OFFER - Section 2 (Acceptance for Payment and Payment for Shares)
THE TENDER OFFER - Section 3 (Procedures for Accepting the Offer and Tendering Shares)
THE TENDER OFFER - Section 4 (Withdrawal Rights)
THE TENDER OFFER - Section 5 (Material United States Federal Income Tax Consequences)
THE TENDER OFFER - Section 11 (The Merger Agreement; Other Agreements)
THE TENDER OFFER - Section 13 (Certain Effects of the Offer)
THE TENDER OFFER - Section 15 (Certain Conditions of the Offer)
THE TENDER OFFER - Section 19 (Miscellaneous)
(a)(1)(ix)-(xi) Not applicable.
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Item 5. |
Past Contacts, Transactions, Negotiations and Agreements. |
(a), (b) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
INTRODUCTION
THE TENDER OFFER - Section 8 (Certain Information Concerning Parent and the Purchaser) and Schedule I attached thereto
THE TENDER OFFER - Section 10 (Background of the Offer; Past Contacts or Negotiations with Goldfield)
THE TENDER OFFER - Section 11 (The Merger Agreement; Other Agreements)
THE TENDER OFFER - Section 12 (Purpose of the Offer; Plans for Goldfield)
Item 6. |
Purposes of the Transaction and Plans or Proposals. |
(a) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
INTRODUCTION
THE TENDER OFFER - Section 12 (Purpose of the Offer; Plans for Goldfield)
(c) (1)-(7) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
INTRODUCTION
THE TENDER OFFER - Section 10 (Background of the Offer; Past Contacts or Negotiations with Goldfield)
THE TENDER OFFER - Section 12 (Purpose of the Offer; Plans for Goldfield)
THE TENDER OFFER - Section 13 (Certain Effects of the Offer)
THE TENDER OFFER - Section 14 (Dividends and Distributions)
Item 7. |
Source and Amount of Funds or Other Consideration. |
(a), (d) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER - Section 9 (Source and Amount of Funds)
(b) Not applicable.
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Item 8. |
Interest in Securities of the Subject Company. |
(a), (b) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
THE TENDER OFFER - Section 8 (Certain Information Concerning Parent and the Purchaser) and Schedule I attached thereto
Item 9. |
Persons/Assets, Retained, Employed, Compensated or Used. |
(a) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER - Section 3 (Procedures for Accepting the Offer and Tendering Shares)
THE TENDER OFFER - Section 10 (Background of the Offer; Past Contacts or Negotiations with Goldfield)
THE TENDER OFFER - Section 18 (Fees and Expenses)
Item 10. |
Financial Statements. |
(a) Not applicable.
(b) Not applicable.
Item 11. |
Additional Information. |
(a) The information set forth in the Offer to Purchase under the following captions is incorporated herein by reference:
SUMMARY TERM SHEET
THE TENDER OFFER - Section 10 (Background of the Offer; Past Contacts or Negotiations with Goldfield)
THE TENDER OFFER - Section 11 (The Merger Agreement; Other Agreements)
THE TENDER OFFER - Section 12 (Purpose of the Offer; Plans for Goldfield)
THE TENDER OFFER - Section 13 (Certain Effects of the Offer)
THE TENDER OFFER - Section 15 (Certain Conditions of the Offer)
THE TENDER OFFER - Section 16 (Certain Legal Matters; Regulatory Approvals)
(c) The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.
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Item 12. |
Exhibits. |
Item 13. |
Information Required by Schedule 13E-3. |
Not applicable.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
FR UTILITY SERVICES MERGER SUB, INC. |
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By |
/s/ Jeffrey K. Quake |
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Name: | Jeffrey K. Quake | |
Title: | President | |
Date: | December 1, 2020 | |
FR UTILITY SERVICES, INC. |
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By |
/s/ Jeffrey K. Quake |
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Name: | Jeffrey K. Quake | |
Title: | President | |
Date: | December 1, 2020 | |
FIRST RESERVE FUND XIV, L.P. |
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By | First Reserve GP XIV, L.P. | |
Its: | General Partner | |
By | First Reserve GP XIV Limited | |
Its: | General Partner | |
By |
/s/ Jeffrey K. Quake |
|
Name: | Jeffrey K. Quake | |
Title: | Managing Director | |
Date: | December 1, 2020 |
EXHIBIT INDEX
Exhibit (a)(1)(A)
Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
THE GOLDFIELD CORPORATION
at
$7.00 Net Per Share
by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK
CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
The Offer (as defined below) is being made pursuant to the Agreement and Plan of Merger, dated as of November 23, 2020 (together with any amendments or supplements thereto, the Merger Agreement), by and among FR Utility Services, Inc., a Delaware corporation (Parent), FR Utility Services Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (the Purchaser), and The Goldfield Corporation, a Delaware corporation (Goldfield). The Purchaser is offering to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share, of Goldfield (Shares) at a price of $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the Offer Price), upon the terms and subject to the conditions set forth in this offer to purchase (together with any amendments or supplements hereto, this Offer to Purchase) and the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with this Offer to Purchase, the Offer). Pursuant to the Merger Agreement, following the consummation of the Offer and the satisfaction or waiver of each of the applicable conditions set forth in the Merger Agreement, the Purchaser will merge with and into Goldfield (the Merger), with Goldfield continuing as the surviving corporation in the Merger and as a wholly owned subsidiary of Parent (the Surviving Corporation). As a result of the Merger, each Share issued and outstanding immediately prior to the Effective Time (defined below) of the Merger (other than Shares held in the treasury of Goldfield or owned by any direct or indirect wholly owned subsidiary of Goldfield and Shares owned by Parent, the Purchaser or any direct or indirect wholly owned subsidiary of Parent, or by any stockholders of Goldfield who have properly exercised their appraisal rights under Section 262 of the General Corporation Law of the State of Delaware (the DGCL)) will at the Effective Time of the Merger be cancelled and converted into the right to receive an amount in cash equal to the Offer Price, without interest and less any applicable withholding taxes.
On November 22, 2020, after careful consideration, the board of directors of Goldfield (the Goldfield Board) unanimously (a) determined and declared that the Merger Agreement and the transactions contemplated thereby (the Transactions), including the Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the time Purchaser, for the first time, irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer.
There is no financing condition to the Offer. The Offer is subject to the satisfaction of the Minimum Condition and other conditions described in Section 15 Certain Conditions of the Offer. If the number of Shares tendered in the Offer is insufficient to cause the Minimum Condition to be satisfied upon expiration of the Offer (taking into account any extensions thereof), then (i) neither the Offer nor the Merger will be consummated and (ii) Goldfields stockholders will not receive the Offer Price pursuant to the Offer or any Merger Consideration (as defined below) pursuant to the Merger. A summary of the principal terms of the Offer appears on pages 1 through 9 of this Offer to Purchase under the heading Summary Term Sheet. You should read this Offer to Purchase and the other documents to which this Offer to Purchase refers carefully before deciding whether to tender your Shares.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Stockholders may call toll free: (877) 717-3930
Banks and Brokers may call collect: (212) 750-5833
IMPORTANT
If you desire to tender all or any portion of your Shares to the Purchaser pursuant to the Offer, you must (a) follow the procedures described in Section 3 Procedures for Accepting the Offer and Tendering Shares below or (b) if your Shares are held by a broker, dealer, commercial bank, trust company or other nominee, contact such nominee and request that they effect the transaction for you and tender your Shares.
If you desire to tender your Shares to the Purchaser pursuant to the Offer and the certificates representing your Shares are not immediately available, or you cannot comply in a timely manner with the procedures for tendering your Shares by book-entry transfer, or cannot deliver all required documents to the Depositary and Paying Agent (as defined below) by the expiration of the Offer, you may tender your Shares to the Purchaser pursuant to the Offer by following the procedures for guaranteed delivery described in Section 3 Procedures for Accepting the Offer and Tendering Shares of this Offer to Purchase.
Beneficial owners of Shares holding their Shares through nominees should be aware that their broker, dealer, commercial bank, trust company or other nominee may establish its own earlier deadline for participation in the Offer. Accordingly, beneficial owners holding Shares through a broker, dealer, commercial bank, trust company or other nominee and who wish to participate in the Offer should contact such nominee as soon as possible in order to determine the times by which such owner must take action in order to participate in the Offer.
* * * *
Questions and requests for assistance regarding the Offer or any of the terms thereof may be directed to Innisfree M&A Incorporated (Innisfree), acting as information agent for the Offer (the Information Agent), at the address and telephone number set forth for the Information Agent on the back cover of this Offer to Purchase. Requests for additional copies of this Offer to Purchase, the Letter of Transmittal, the notice of guaranteed delivery and other tender offer materials may also be directed to the Information Agent. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance.
This Offer to Purchase and the Letter of Transmittal contain important information, and you should read both carefully and in their entirety before making a decision with respect to the Offer.
This transaction has not been approved or disapproved by the U.S. Securities and Exchange Commission (the SEC) or any state securities commission nor has the SEC or any state securities commission passed upon the fairness or merits of this transaction or upon the accuracy or adequacy of the information contained in this Offer to Purchase or the Letter of Transmittal. Any representation to the contrary is a criminal offense.
Page | ||||||
SUMMARY TERM SHEET | 1 | |||||
INTRODUCTION | 10 | |||||
THE TENDER OFFER | 13 | |||||
1. | 13 | |||||
2. | 15 | |||||
3. | 16 | |||||
4. | 19 | |||||
5. | 20 | |||||
6. | 23 | |||||
7. | 24 | |||||
8. | 26 | |||||
9. | 27 | |||||
10. |
Background of the Offer; Past Contacts or Negotiations with Goldfield. |
31 | ||||
11. | 34 | |||||
12. | 57 | |||||
13. | 58 | |||||
14. | 59 | |||||
15. | 59 | |||||
16. | 60 | |||||
17. | 62 | |||||
18. | 63 | |||||
19. | 63 | |||||
65 |
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FR Utility Services Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation, is offering to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share, of The Goldfield Corporation, a Delaware corporation, at a price of $7.00, net to the seller in cash without interest and less any applicable withholding taxes, as further described herein, upon the terms and subject to the conditions set forth in this Offer to Purchase and the Letter of Transmittal.
The following are some questions you, as a stockholder of Goldfield, may have and answers to those questions. This summary term sheet highlights selected information from this Offer to Purchase and may not contain all of the information that is important to you and is qualified in its entirety by the more detailed descriptions and explanations contained in this Offer to Purchase and the Letter of Transmittal. We have included cross-references in this summary term sheet to other sections of this Offer to Purchase where you will find more complete descriptions of the topics mentioned below. The information concerning Goldfield contained herein and elsewhere in this Offer to Purchase has been provided to Parent and the Purchaser by Goldfield or has been taken from or is based upon publicly available documents or records of Goldfield on file with the SEC or other public sources at the time of the Offer (as defined in the Introduction to this Offer to Purchase). Parent and the Purchaser have not independently verified the accuracy and completeness of such information. Parent and the Purchaser have no knowledge that would indicate that any statements contained herein relating to Goldfield provided to Parent and the Purchaser or taken from or based upon such documents and records filed with the SEC are untrue or incomplete in any material respect. The following are some questions you, as a stockholder of Goldfield, may have and answers to those questions. To better understand the Offer and for a complete description of the legal terms of the Offer, you should read this Offer to Purchase and the Letter of Transmittal carefully and in their entirety. Questions or requests for assistance may be directed to the Information Agent at the address and telephone numbers available on the back cover of this Offer to Purchase. Unless the context indicates otherwise, in this Offer to Purchase, we use the terms us, we and our to refer to the Purchaser and where appropriate, Parent and the Purchaser, collectively.
Securities Sought | All issued and outstanding shares of common stock, par value $0.10 per share of The Goldfield Corporation. | |
Price Offered Per Share | $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes. | |
Scheduled Expiration of Offer | 11:59 P.M., New York City time, on December 29, 2020 (Offer Expiration Time), unless the Offer is extended or terminated. See Section 1 Terms of the Offer. | |
Purchaser | FR Utility Services Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation. First Reserve Fund XIV, L.P. (First Reserve), or an affiliate thereof, is the controlling stockholder of Parent. | |
Goldfields Board of Directors Recommendation | The board of directors of Goldfield (the Goldfield Board) unanimously recommends that the stockholders of Goldfield tender their Shares in the Offer. |
Who is offering to buy my Shares?
The Purchaser is offering to purchase all of the issued and outstanding Shares. The Purchaser is a Delaware corporation which was formed for the sole purpose of making the Offer and completing the process by which
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Goldfield will become a subsidiary of Parent through the merger of the Purchaser with and into Goldfield (the Merger). First Reserve, or an affiliate thereof, is the controlling stockholder of Parent. See the Introduction, Section 8 Certain Information Concerning Parent and the Purchaser and Schedule I Directors and Executive Officers of the Purchaser, Parent, First Reserve and Controlling Entities.
How many Shares are you offering to purchase in the Offer?
We are making an offer to purchase all of the issued and outstanding Shares on the terms and subject to the conditions set forth in this Offer to Purchase and the Letter of Transmittal. See the Introduction and Section 1 Terms of the Offer.
How much are you offering to pay and what is the form of payment? Will I have to pay any fees or commissions?
We are offering to pay $7.00 per Share, net to you in cash, without interest and less any applicable withholding taxes. If you are the record owner of your Shares and you directly tender your Shares to us in the Offer, you will not pay brokerage fees, commissions or similar expenses. If you own your Shares through a broker or other nominee, and your broker or nominee tenders your Shares on your behalf, your broker or nominee may charge you a fee for doing so. You should consult with your broker or nominee to determine whether any charges will apply. See the Introduction, Section 1 Terms of the Offer, and Section 2 Acceptance for Payment and Payment for Shares.
Is there an agreement governing the Offer?
Yes. The Agreement and Plan of Merger entered into by Parent, the Purchaser and Goldfield on November 23, 2020 provides, among other things, for the terms and conditions of the Offer and the Merger. See Section 11 The Merger Agreement; Other Agreements and Section 15 Certain Conditions of the Offer.
What are the most significant conditions of the Offer?
The obligation of the Purchaser to purchase Shares tendered in the Offer is subject to the satisfaction or waiver of a number of conditions set forth in the Merger Agreement (the Offer Conditions), including, among other things:
(i) |
the number of Shares validly tendered and received (as defined in Section 251(h)(6) of the DGCL) in the Offer and not validly withdrawn prior to the Offer Expiration Time represent (together with any Shares owned by Parent and its affiliates and excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received (as such term is defined in Section 251(h)(6)(f) of the DGCL)) at least one share more than one-half of the number of the Shares outstanding at the first time the Purchaser irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer (such time, the Offer Acceptance Time) (such condition, the Minimum Condition); |
(ii) |
any waiting period (or any extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 as amended (the HSR Act) applicable to the Transactions shall have expired or been terminated (such condition, the Regulatory Condition); |
(iii) |
no governmental authority having jurisdiction over any party to the Merger Agreement has issued any order, nor any applicable law or other legal restraint, injunction or prohibition is in effect, that makes consummation of the Offer, the acquisition of Shares by Parent or Purchaser, the Merger or the other Transactions illegal or otherwise prohibited (such condition, the Restraint Condition); |
(iv) |
since the date of the Merger Agreement, there has not been any state of facts, circumstance, condition, event, change, development, occurrence, result or effect (collectively, Effect) that has had or would |
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reasonably be expected to have a Company Material Adverse Effect (as defined in the Merger Agreement and described in Section 11 The Merger Agreement; Other Agreements of the Offer to Purchase) (such condition, the MAE Condition); |
(v) |
the accuracy of Goldfields representations and warranties contained in the Merger Agreement (subject to de minimis, materiality and Company Material Adverse Effect (as defined in the Merger Agreement and described in Section 11 The Merger Agreement; Other Agreements) qualifiers) (such condition, the Representations Condition); |
(vi) |
Goldfield having complied in all material respects with each of the covenants, obligations and agreements it is required to comply with or perform at or prior to such date and at such time as when the certificate of merger has been duly filed with the Delaware Secretary or at such later time and date as may be agreed by the parties in writing and specified in the certificate of merger in accordance with the DGCL (the Effective Time) (such condition, the Covenants Condition); |
(vii) |
Parent and Purchaser having received a certificate of Goldfield, signed by an officer of Goldfield, dated the date on which the Offer expires certifying that the MAE Condition, the Representations Condition and the Covenants Condition have been satisfied (such condition, the Compliance Certificate Condition); |
(viii) |
the Merger Agreement having not been terminated in accordance with its terms (such condition, the Termination Condition); and |
(ix) |
the occurrence of January 29, 2021 (the Inside Date) (such condition, the Inside Date Condition). |
See Section 15 Certain Conditions of the Offer.
Do you have the financial resources to pay for all of the issued and outstanding Shares that you are offering to purchase in the Offer and to consummate the Merger and the other transactions contemplated by the Merger Agreement?
The Purchaser estimates that it will need up to approximately $172 million to purchase all of the issued and outstanding Shares in the Offer, to provide funding for the consideration to be paid in the Merger, to refinance Goldfields existing indebtedness and to pay related fees and expenses at the closing of the Transactions. First Reserve has provided to Purchaser an equity commitment equal to $210 million (the Equity Financing), the proceeds of which, together with Purchasers and Goldfields approximately $10.8 million of available cash following the Merger, will be sufficient to pay the Offer Price for all Shares tendered in the Offer, to pay the consideration to be paid in the Merger and to pay all related fees and expenses. Parent has received the Debt Commitment Letter, pursuant to which its lenders have agreed to provide it with $125 million (the Debt Financing). Subject to certain conditions, the indebtedness provided under the Debt Commitment Letter will be fully drawn on the date of the closing of the Merger and available to the Borrowers (as the term is defined in the Debt Commitment Letter), to refinance a portion of Parents existing indebtedness. Funding of the Debt Financing and the Equity Financing is subject to the satisfaction of various conditions set forth in the Debt Commitment Letter and the Equity Commitment Letter.
Is your financial condition relevant to my decision to tender my Shares in the Offer?
We do not think that our financial condition is relevant to your decision whether to tender Shares and accept the Offer because:
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the consideration offered in the Offer consists solely of cash; |
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the Offer is being made for all issued and outstanding Shares; |
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if we consummate the Offer, subject to the satisfaction or waiver of certain conditions, we have agreed to acquire all remaining Shares for the same cash price in the Merger; |
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the Offer is not subject to any financing condition; and |
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we have all of the financial resources, including committed equity and debt financing, sufficient to finance the Offer and the Merger. |
See Section 9 Source and Amount of Funds.
Why are you making the Offer?
We are making the Offer because we want to acquire control of, and ultimately all of the equity interests in, Goldfield. If the Offer is consummated, Parent intends, as soon as practicable after consummation of the Offer, to have the Purchaser merge with and into Goldfield, with Goldfield as the Surviving Corporation. Upon consummation of the Merger, the Surviving Corporation would be a wholly owned subsidiary of Parent. See Section 12 Purpose of the Offer; Plans for Goldfield.
What does the Goldfield Board think about the Offer?
We are making the Offer pursuant to the Merger Agreement, which has been unanimously approved by the Goldfield Board. After careful consideration, the Goldfield Board has unanimously:
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determined and declared that the Merger Agreement and the Transactions contemplated thereby, including the Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders; |
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approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein; |
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determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to Purchaser pursuant to the Offer; and |
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agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the Offer Acceptance Time. |
A more complete description of the Goldfield Boards reasons for authorizing and approving the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, will be set forth in Goldfields Solicitation/Recommendation Statement on Schedule 14D-9 under the Securities Exchange Act of 1934, as amended (the Exchange Act), that is being mailed to the stockholders of Goldfield concurrently herewith. See the Introduction and Section 10 Background of the Offer; Past Contacts or Negotiations with Goldfield.
Has the Goldfield Board received a fairness opinion in connection with the Offer and the Merger?
Yes. Stifel, Nicolaus & Company, Incorporated (Stifel), the financial advisor to Goldfield, delivered an oral opinion to the Goldfield Board on November 22, 2020 and subsequently confirmed by delivery of a written opinion dated as of November 22, 2020 to the effect that, as of such date and subject to and based on the assumptions made, procedures followed, matters considered, limitations of the review undertaken and qualifications contained in such opinion, the Offer Price to be received by holders of Shares (other than Parent, Purchaser and their respective affiliates and other than any dissenting shares) in the Offer and the Merger pursuant to the Merger Agreement was fair to such holders of Shares, from a financial point of view. The full text of Stifels written opinion, which describes the assumptions made, procedures followed, matters considered, limitations of the review undertaken and qualifications contained in such opinion, will be included as an annex to the Schedule 14D-9. Stockholders are urged to read the full text of that opinion carefully and in its entirety.
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How long do I have to decide whether to tender my Shares in the Offer?
If you desire to tender all or any portion of your Shares to the Purchaser pursuant to the Offer, you must comply with the procedures described in this Offer to Purchase and the Letter of Transmittal, as applicable, by the Expiration Date. The term Expiration Date means 11:59 P.M., New York City time, on December 29, 2020, unless, in accordance with the Merger Agreement, the Offer has been extended, in which event the term Expiration Date means such later time and date to which the Offer has been extended; provided, however, that the Expiration Date may not be extended beyond February 19, 2021 (the Outside Date) or the valid termination of the Merger Agreement.
If you desire to tender all or any portion of your Shares to the Purchaser pursuant to the Offer and you cannot deliver everything that is required in order to make a valid tender by the Expiration Date, you may be able to use a guaranteed delivery procedure by which a broker, a bank or a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges Medallion Program (each, an Eligible Institution) may guarantee that the missing items will be received by the Depositary and Paying Agent within two trading days on The New York Stock Exchange American (the NYSE American). Shares delivered by a Notice of Guaranteed Delivery will not be counted by the Purchaser toward the satisfaction of the Minimum Condition; therefore it is preferable for Shares to be tendered by the other methods described herein. For the tender to be valid, however, the Depositary and Paying Agent must receive the missing items within such two-trading-day period. See Section 1 Terms of the Offer and Section 3 Procedures for Accepting the Offer and Tendering Shares.
If you hold Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should be aware that such institutions may establish their own earlier deadline for tendering Shares in the Offer.
Accordingly, if you hold Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you should contact such institution as soon as possible in order to determine the times by which you must take action in order to tender Shares in the Offer.
Can the Offer be extended and under what circumstances?
Yes. We have agreed in the Merger Agreement that, subject to our rights and Goldfields rights to terminate the Merger Agreement in accordance with its terms or terminate the Offer under certain circumstances, we will extend the Offer:
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for any minimum period required by any applicable rule, regulation, interpretation or position of the SEC or the staff thereof or NYSE American (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price) or as may be necessary to resolve any comments of the SEC or the staff or NYSE American, in each case, as applicable to the Offer, the Schedule 14D-9 or the Tender Offer Statement on Schedule TO with respect to the Offer (together with any exhibits, supplements or amendments thereto, the Offer Documents); and |
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if, as of any then-scheduled Offer Expiration Time, any Offer Condition is not satisfied and has not been waived by Parent or Purchaser (to the extent permitted under the Merger Agreement), by (x) on one or more occasions in consecutive increments of up to five business days each (or such longer or shorter period as the parties to the Merger Agreement may agree) or (y) if any then-scheduled Offer Expiration Time is five or less business days before February 19, 2021, until 11:59 p.m., New York City Time, on the day before such date (or such other date and time as the parties to the Merger Agreement may agree) (each such extension period, an Additional Offer Period); provided that, without Goldfields written consent, Purchaser shall not extend the Offer, and without Parents prior written consent, Purchaser shall not be required to extend the Offer, in each case, beyond the earlier of February 19, 2021 or the valid termination of the Merger Agreement in accordance with its terms; |
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provided, that notwithstanding the foregoing, if, at the initial Offer Expiration Time or the end of any Additional Offer Period, all of the Offer Conditions except for the Minimum Condition are satisfied or have been waived by Parent or Purchaser in their sole discretion, Purchaser will only be required to extend the Offer and its expiration date beyond the Offer Expiration Time or such subsequent date upon the request of Goldfield for one or more additional periods of five business days each, not to exceed an aggregate of 15 business days, to permit the Minimum Condition to be satisfied.
If we extend the time period of the Offer, this extension will extend the time that you will have to tender your Shares. See Section 1 Terms of the Offer for more details on our ability to extend the Offer.
How will I be notified if the Offer is extended?
If we extend the Offer, we will inform the Depositary and Paying Agent of that fact and will make a public announcement of the extension not later than 9:00 A.M., New York City time, on the next business day after the day on which the Offer was scheduled to expire. See Section 1 Terms of the Offer.
How do I tender my Shares?
If you wish to accept the Offer and:
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you hold your Shares through a broker, dealer, commercial bank, trust company or other nominee, you should contact your broker, dealer, commercial bank, trust company or other nominee and give instructions that your Shares be tendered in accordance with the procedures described in this Offer to Purchase and the Letter of Transmittal; |
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you are a record holder (i.e., a stock certificate has been issued to you and registered in your name or your Shares are registered in book entry form in your name with Goldfields transfer agent), you must deliver the stock certificate(s) representing your Shares (or follow the procedures described in this Offer to Purchase for book-entry transfer), together with a properly completed and duly executed Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof) or an Agents Message (as defined in Section 3 Procedures for Accepting the Offer and Tendering Shares below) in connection with a book-entry delivery of Shares, and any other documents required by the Letter of Transmittal, to the Depositary and Paying Agent. These materials must reach the Depositary and Paying Agent before the Offer expires; or |
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you are a record holder, but your stock certificate is not available or you cannot deliver it to the Depositary and Paying Agent before the Offer expires, you may be able to obtain two additional NYSE American trading days to tender your Shares using the enclosed Notice of Guaranteed Delivery. |
See the Letter of Transmittal and Section 3 Procedures for Accepting the Offer and Tendering Shares for more information.
May I withdraw Shares I previously tendered in the Offer? Until what time may I withdraw tendered Shares?
Yes. You may withdraw previously tendered Shares any time prior to the Expiration Date and, if not previously accepted for payment, at any time after January 30, 2021, the date that is 60 days after the date of the commencement of the Offer, pursuant to SEC regulations, by following the procedures for withdrawing your Shares in a timely manner. To withdraw your Shares, you must deliver a written notice of withdrawal, or a facsimile of one, with the required information to the Depositary and Paying Agent for the Offer, while you have the right to withdraw your Shares. If you tendered your Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct your broker, dealer, commercial bank, trust company or other nominee prior to the Expiration Date to arrange for the withdrawal of your Shares in a timely manner. See Section 4 Withdrawal Rights.
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Do I have to vote to approve the Offer or the Merger?
Your vote is not required to approve the Offer. You only need to tender your Shares if you choose to do so. If following the completion of the Offer, such Shares accepted for payment pursuant to the Offer or otherwise owned by us equal at least a majority of the then-outstanding Shares and the other conditions of the Offer and the Merger are satisfied or waived, assuming certain statutory requirements are met, we will be able to consummate the Merger pursuant to Section 251(h) of the DGCL without a vote or any further action by the stockholders of Goldfield. See Section 12 Purpose of the Offer; Plans for Goldfield.
If the Offer is successfully completed, will Goldfield continue as a public company?
No. Following the purchase of Shares in the Offer, we expect to consummate the Merger in accordance with Section 251(h) of the DGCL, and no stockholder vote to adopt the Merger Agreement or any other action by the stockholders of Goldfield will be required in connection with the Merger. If the Merger takes place, Goldfield will no longer be publicly-owned. We do not expect there to be a significant period of time between the consummation of the Offer and the consummation of the Merger. If you decide not to tender your Shares in the Offer and the Merger occurs as described above, you will receive as a result of the Merger the right to receive the same amount of cash per Share as if you had tendered your Shares in the Offer. Upon consummation of the Merger, Goldfields common stock will no longer be eligible to be traded on the NYSE American or any other securities exchange, there will not be a public trading market for the common stock of Goldfield, and Goldfield will no longer be required to make filings with the SEC or otherwise comply with the rules of the SEC relating to publicly-held companies. See Section 13 Certain Effects of the Offer.
If you do not consummate the Offer, will you nevertheless consummate the Merger?
No. None of the Purchaser, Parent or Goldfield are under any obligation to pursue or consummate the Merger if the Offer has not been earlier consummated.
Do I have appraisal rights in connection with the Offer and the Merger?
Appraisal rights are not available as a result of the Offer. However, if the Merger takes place, stockholders who have not tendered their Shares in the Offer and who are entitled to demand and properly demand appraisal of such Shares pursuant to, and comply in all respects with, the applicable provisions of Delaware law, will be entitled to appraisal rights under Delaware law. See Section 17 Appraisal Rights.
If I decide not to tender, how will the Offer affect my Shares?
If you decide not to tender your Shares pursuant to the Offer and the Merger occurs as described herein, you will receive as a result of the Merger the right to receive the same amount of cash per Share as if you had tendered your Shares pursuant to the Offer, net of applicable withholding taxes and without interest (the Merger Consideration).
Subject to certain conditions, if we purchase Shares in the Offer, we are obligated under the Merger Agreement to cause the Merger to occur.
Because the Merger will be governed by Section 251(h) of the DGCL, assuming the requirements of Section 251(h) of the DGCL are met, no stockholder vote by the stockholders of Goldfield will be required in connection with the consummation of the Merger. We do not expect there to be significant time between the consummation of the Offer and the consummation of the Merger. See Section 12 Purpose of the Offer; Plans for Goldfield.
If the number of Shares tendered in the Offer is insufficient to cause the Minimum Condition to be satisfied upon expiration of the Offer (taking into account any extensions thereof), then (i) neither the Offer nor the Merger will be consummated and (ii) Goldfields stockholders will not receive the Offer Price or Merger Consideration pursuant to the Offer or Merger, as applicable.
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Will there be a subsequent offering period?
No. Pursuant to Section 251(h) of the DGCL, we expect the Merger to occur as soon as practicable following the Offer Acceptance Time (as defined in the Merger Agreement) without a subsequent offering period.
What is the market value of my Shares as of a recent date?
On November 23, 2020, the last NYSE American trading day before Parent and Goldfield announced that they had entered into the Merger Agreement, the closing price of Shares reported on NYSE American was $4.27 per Share; therefore, the Offer Price of $7.00 per Share represents a premium of approximately 64% over such price and a 57% premium over the 30-day volume-weighted average price of $4.46 as of the same date. On November 30, 2020, the last NYSE American trading day prior to the commencement of this Offer, the closing price of Shares reported on the NYSE American was $6.97 per Share.
Have any stockholders already agreed to tender their Shares in the Offer or to otherwise support the Offer?
Yes. The estate of former CEO John H. Sottile, in its capacity as a stockholder of Goldfield, has entered into a Tender and Support Agreement with Parent and Purchaser that, among other things, requires the tender of all of its Shares in the Offer and, if any meeting of the shareholders of Goldfield is called, then to vote (or cause to be voted) or deliver (or cause to be delivered) a written consent with respect to all of its Shares in favor of the adoption of the Merger Agreement and against any competing transaction. As of November 23, 2020, the estate directly or indirectly owned approximately 8.5% of all Shares issued and outstanding. Parent and Purchaser expressly disclaim beneficial ownership of all Shares covered by the Tender and Support Agreement. For more information related to the agreement entered into by such shareholder, see Section 11 The Merger Agreement; Other Agreements Tender and Support Agreement.
Other than the foregoing, none of the stockholders of Goldfield have agreed with Parent, the Purchaser or any of their affiliates to tender their Shares in connection with the execution of the Merger Agreement. Goldfield has informed us that, as of November 30, 2020, the non-employee directors and executive officers of Goldfield beneficially owned, in the aggregate, 194,180 Shares (excluding any restricted stock units) and that such non-employee directors and executive officers of Goldfield have informed Goldfield that they intend to tender all Shares, if any, beneficially owned by them pursuant to the Offer.
If I tender my Shares, when and how will I get paid?
If the Offer Conditions set forth in Section 15 Certain Conditions of the Offer are satisfied or, to the extent permitted, waived and we consummate the Offer and accept your Shares for payment, we will pay you an amount equal to the number of Shares you tendered multiplied by $7.00 in cash without interest and less any applicable withholding taxes, promptly following the Offer Acceptance Time. See Section 1 Terms of the Offer and Section 2 Acceptance for Payment and Payment of Shares.
What will happen to my restricted stock units in the Offer and the Merger?
Pursuant to the Merger Agreement, and consistent with the terms of the restricted stock units, each restricted stock unit granted under a Goldfield equity plan that is outstanding will, automatically and without any required action on the part of the holder thereof, become fully vested as of immediately prior to, and contingent upon, the
Effective Time and in consideration of such cancellation, the holder will be entitled to receive a cash payment in an amount equal to $7.00, without interest and less any applicable withholding taxes. See Section 11 The Merger Agreement; Other Agreements.
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What are the material United States federal income tax consequences of the Offer and the Merger to a United States Holder?
If you are a United States Holder (as defined in Section 5 Material United States Federal Income Tax Consequences), the receipt of cash by you in exchange for your Shares pursuant to the Offer or the Merger will be a taxable transaction for United States federal income tax purposes. In general, if you are a United States Holder and you hold your Shares as a capital asset, you will recognize capital gain or loss equal to the difference between the amount of cash you receive and your adjusted tax basis in such Shares exchanged therefor. Such gain or loss will generally be treated as a long-term capital gain or loss if you have held your Shares for more than one year at the time of the exchange. If you are a non-United States Holder (as defined in Section 5 Material United States Federal Income Tax Consequences), you generally will not be subject to United States federal income tax with respect to the exchange of Shares for cash pursuant to the Offer or the Merger unless you have certain connections to the United States. See Section 5 Material United States Federal Income Tax Consequences for a summary of the material United States federal income tax consequences of tendering Shares pursuant to the Offer or exchanging Shares in the Merger.
You are urged to consult your own tax advisors to determine the tax consequences to you of the Offer and the Merger in light of your particular circumstances, including the application and effect of any state, local or non-United States tax laws.
Who should I talk to if I have additional questions about the Offer?
Stockholders may call Innisfree toll-free at (877) 717-3930 and banks and brokers may call Innisfree at (212) 750-5833. Innisfree is acting as the Information Agent for the Offer. See the back cover of this Offer to Purchase.
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FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (Parent), hereby offers to purchase for cash all issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a price of $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the Offer Price), upon the terms and subject to the conditions set forth in this offer to purchase (this Offer to Purchase) and in the related letter of transmittal (the Letter of Transmittal) (which, together with any amendments or supplements hereto or thereto, collectively constitute the Offer). Goldfield has informed us that, as of November 30, 2020, the non-employee directors and executive officers of Goldfield beneficially owned, in the aggregate, 194,180 Shares (excluding any restricted stock units) and that such non-employee directors and executive officers of Goldfield have informed Goldfield that they intend to tender all Shares, if any, beneficially owned by them pursuant to the Offer. The Offer and withdrawal rights will expire at 11:59 P.M., New York City time, on December 29, 2020 (the Offer Expiration Time), unless the Offer is extended in accordance with the terms of the Merger Agreement.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of November 23, 2020, by and among Parent, the Purchaser and Goldfield (together with any amendments or supplements thereto, the Merger Agreement). The Merger Agreement provides that after the purchase of Shares in the Offer, the Purchaser will merge with and into Goldfield (the Merger), with Goldfield as the surviving corporation (the Surviving Corporation) in the Merger and continuing as a wholly owned subsidiary of Parent. As a result of the Merger, Shares will cease to be publicly traded. Under the terms of the Merger Agreement, after the completion of the Offer and the satisfaction or waiver of certain conditions, the Merger will be consummated by executing and filing with the Secretary of State of the State of Delaware a certificate of merger or certificate of ownership and merger or other appropriate documents (the Certificate of Merger) in accordance with the relevant provisions of the DGCL. The Merger shall become effective upon the filing of the Certificate of Merger with the Secretary of State of the State of Delaware or at such other date or time as is agreed and specified in the Certificate of Merger (the Effective Time). At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than Shares held in the treasury of Goldfield or owned by any direct or indirect wholly owned subsidiary of Goldfield and each Share owned by Parent, the Purchaser or any direct or indirect wholly owned subsidiary of Parent, or by any stockholders of Goldfield who have properly exercised their appraisal rights under Section 262 of the DGCL) will be converted into the right to receive an amount in cash equal to the Offer Price (the Merger Consideration), without interest and less applicable withholding taxes and without interest. Under no circumstances will interest on the Offer Price or Merger Consideration for Shares be paid to the stockholders of Goldfield, regardless of any delay in payment for such Shares. The Merger Agreement is more fully described in Section 11 The Merger Agreement; Other Agreements, which also contains a discussion of the treatment of equity awards of Goldfield.
Tendering stockholders who are record owners of their Shares and tender directly to the Depositary and Paying Agent (as defined below) will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in the instructions to the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by the Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker or bank should consult such institution as to whether it charges any brokerage or other service fees. Parent or the Purchaser will pay all charges and expenses of American Stock Transfer & Trust Company, LLC, acting as the depositary and paying agent for the Offer (the Depositary and Paying Agent), and Innisfree M&A Incorporated (Innisfree), acting as the information agent for the Offer, incurred in connection with the Offer. See Section 18 Fees and Expenses.
On November 22, 2020, after careful consideration, the board of directors of Goldfield (the Goldfield Board) unanimously (a) determined and declared that the Merger Agreement and the transactions contemplated thereby (the Transactions), including the Offer and the Merger, are advisable, fair to and
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in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the Offer Acceptance Time. A more complete description of the Goldfield Boards reasons for authorizing and approving the Merger Agreement and the Transactions, including the Offer and the Merger, will be set forth in Goldfields Solicitation/Recommendation Statement on Schedule 14D-9 (together with any supplements thereto, the Schedule 14D-9) under the Securities Exchange Act of 1934, as amended (the Exchange Act), that will be mailed to the stockholders of Goldfield.
The Offer is not subject to any financing condition. The Offer is conditioned upon, among others things, the following: (i) the Minimum Condition; (ii) the Regulatory Condition; (iii) the Restraint Condition; (iv) the MAE Condition; (v) the Representations Condition; (vi) the Covenants Condition; (vii) the Compliance Certificate Condition; (viii) the Termination Condition; and (ix) the Inside Date Condition. The Offer is also subject to certain other terms and conditions. See Section 15 Certain Conditions of the Offer.
Section 251(h) of the DGCL provides that, subject to certain statutory requirements, if following consummation of a tender offer for a public Delaware corporation, the stock irrevocably accepted for purchase pursuant to such tender offer and received by the depositary prior to the expiration of such tender offer, plus the stock otherwise owned by the consummating corporation equals at least such percentage of the stock, and of each class or series thereof, of the target corporation that would otherwise be required to adopt a merger agreement under the DGCL or the target corporations certificate of incorporation, and each outstanding share of each class or series of stock that is the subject of such tender offer and is not irrevocably accepted for purchase in the offer is to be converted in such merger into the right to receive the same amount and kind of consideration to be paid for shares of such class or series of stock irrevocably accepted for purchase in such tender offer, the consummating corporation may effect a merger without a vote of the stockholders of the target corporation. Accordingly, if the Offer is consummated and the number of Shares validly tendered in accordance with the terms of the Offer and not validly withdrawn prior to the Expiration Date, together with such Shares then owned by the Purchaser, is one Share more than 50% of the outstanding Shares, the Purchaser will not seek the approval of Goldfields remaining public stockholders before effecting the Merger. Section 251(h) of the DGCL also requires that the Merger Agreement provide that such merger will be effected as soon as practicable, subject to the conditions specified in the Merger Agreement, following the consummation of the tender offer. Therefore, Goldfield, Parent and the Purchaser have agreed to take all necessary action to cause the Merger to become effective as soon as practicable following the acceptance for payment of all Shares validly tendered and not withdrawn pursuant to the Offer (the Offer Acceptance Time). See Section 11 The Merger Agreement; Other Agreements.
No appraisal rights are available in connection with the Offer. However, if we accept Shares in the Offer and the Merger is completed, stockholders may be entitled to appraisal rights in connection with the Merger if they do not tender Shares in the Offer and comply with the applicable procedures described under Section 262 of the DGCL. Such stockholder will not be entitled to receive the Offer Price or the Merger Consideration (in each case, net of applicable withholding taxes and without interest), but instead will be entitled to receive only those rights provided under Section 262 of the DGCL. Stockholders must properly perfect their right to seek appraisal under the DGCL in connection with the Merger in order to exercise appraisal rights. See Section 17 Appraisal Rights.
Stifel, Nicolaus & Company, Incorporated (Stifel), the financial advisor to Goldfield, delivered an oral opinion to the Goldfield Board on November 22, 2020 and subsequently confirmed by delivery of a written opinion dated as of November 22, 2020 to the effect that, as of such date and subject to and based on the assumptions made, procedures followed, matters considered, limitations of the review undertaken and
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qualifications contained in such opinion, the Offer Price to be received by holders of Shares (other than Parent, Purchaser and their respective affiliates and other than any dissenting shares) in the Offer and the Merger pursuant to the Merger Agreement was fair to such holders of Shares, from a financial point of view. The full text of Stifels written opinion, which describes the assumptions made, procedures followed, matters considered, limitations of the review undertaken and qualifications contained in such opinion, will be included as an annex to the Schedule 14D-9. Stockholders are urged to read the full text of that opinion carefully and in its entirety. The material United States federal income tax consequences of the sale of Shares pursuant to the Offer and the exchange of Shares pursuant to the Merger are summarized in Section 5 Material United States Federal Income Tax Consequences.
Parent and the Purchaser have retained Innisfree M&A Incorporated to be the Information Agent and American Stock Transfer & Trust Company, LLC to be the Depositary and Paying Agent in connection with the Offer. Parent or the Purchaser will pay all charges and expenses of American Stock Transfer & Trust Company, LLC, as Depositary and Paying Agent, and Innisfree M&A Incorporated, as Information Agent, incurred in connection with the Offer. See Section 18 Fees and Expenses.
Questions and requests for assistance may be directed to the Information Agent at its address and telephone numbers set forth on the back cover of this Offer to Purchase. Requests for copies of this Offer to Purchase and the related Letter of Transmittal and Notice of Guaranteed Delivery may be directed to the Information Agent. Such copies will be furnished promptly at the Purchasers expense. Stockholders may also contact brokers, dealers, commercial banks or trust companies for assistance concerning the Offer.
This Offer to Purchase, the Letter of Transmittal and the other documents referred to in this Offer to Purchase contain important information that should be read carefully before any decision is made with respect to the Offer.
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Terms of the Offer. |
Upon the terms and subject to the satisfaction or, to the extent permitted, waiver of the Offer Conditions (as defined in Section 15 Certain Conditions of the Offer) (including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), the Purchaser will accept for payment and pay for all Shares validly tendered prior to the Expiration Date and not validly withdrawn as permitted under Section 4 Withdrawal Rights. The term Expiration Date means 11:59 P.M., New York City time, on December 29, 2020, unless, in accordance with the Merger Agreement, the Offer has been extended, in which event the term Expiration Date means such later time and date to which the Offer has been extended; provided, however, that the Expiration Date may not be extended beyond February 19, 2021 (the Outside Date) or the valid termination of the Merger Agreement.
The Offer is conditioned upon the satisfaction of the Minimum Condition and the other conditions set forth in Section 15 Certain Conditions of the Offer. The Purchaser may, subject to the terms and conditions of the Merger Agreement, terminate the Offer without purchasing any Shares if the conditions described in Section 15 Certain Conditions of the Offer are not satisfied or waived. See Section 11 The Merger Agreement; Other Agreements Termination.
Subject to the applicable rules and regulations of the SEC and the provisions of the Merger Agreement, the Purchaser expressly reserves the right to increase the Offer Price, waive any Offer Condition or to make any other changes in the terms and conditions of the Offer. However, pursuant to the Merger Agreement, the Purchaser has agreed that it will not, without the prior written consent of Goldfield (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price (except as expressly required or permitted by the Merger Agreement), (iii) amend, modify, supplement or waive the Minimum Condition or the Termination Condition, (iv) amend, modify or supplement any Offer Condition, (v) amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares or that would reasonably be expected to prevent or materially delay the consummation of the offer or the Merger, (vi) extend or otherwise change the Offer Expiration Time (except as expressly required or permitted by the Merger Agreement), (vii) change the form of consideration payable in the Offer or (viii) provide for any subsequent offering period (or any extension of any thereof) within the meaning of Rule 14d-11 under the Exchange Act.
The Merger Agreement provides, among other things, that with respect to the Offer Price and the Merger Consideration, if at any time between the date of the Merger Agreement and the Effective Time, any change in the outstanding shares of capital stock of Goldfield shall occur, including by reason of any reclassification, recapitalization, consolidation, stock split (including reverse stock split) or combination, exchange or readjustment of shares, or any stock dividend or similar transaction, then the Offer Price, the Merger Consideration and any other amounts payable pursuant to the Merger Agreement will be appropriately adjusted to provide the holders of Shares the same economic effect as contemplated by the Merger Agreement prior to such action.
The Merger Agreement provides that the Purchaser will, and Parent will cause the Purchaser to, (a) extend the Offer for any minimum period required by any applicable rule, regulation, interpretation or position of the SEC or the staff thereof or NYSE American (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price) or as may be necessary to resolve any comments of the SEC or the staff or NYSE American, in each case, as applicable to the Offer, the Schedule 14D-9 or the Offer Documents, and (b) if, as of any then-scheduled Offer Expiration Time, any Offer Condition set forth in Section 15 Certain Conditions of the Offer is not satisfied and has not been waived by Parent or Purchaser (to the extent permitted hereunder), extend the Offer (x) on one or more occasions in consecutive increments of up to five (5) business days each (or such longer or shorter period as the parties hereto may agree) or (y) if any then-scheduled Offer Expiration Time is five (5) or less business days before the Outside Date, until 11:59 p.m., New York City Time,
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on the day before the Outside Date (or such other date and time as the parties hereto may agree) (each such extension period, an Additional Offer Period); provided that, in each case, without Goldfields written consent, Purchaser shall not extend the Offer, and without Parents prior written consent, Purchaser shall not be required to extend the Offer, in each case, beyond the earlier of February 19, 2021 or the valid termination of the Merger Agreement in accordance with its terms. Notwithstanding the foregoing, if, at the initial Offer expiration time or the end of any Additional Offer Period, all of the Offer Conditions except for the Minimum Condition are satisfied or have been waived by Parent or Purchaser in their sole discretion, Purchaser will only be required to extend the Offer and its expiration date beyond the Offer Expiration Time or such subsequent date upon the request of Goldfield for one or more additional periods of five business days each, not to exceed an aggregate of 15 business days, to permit the Minimum Condition to be satisfied.
There can be no assurance that the Purchaser will exercise any right to extend the Offer or that the Purchaser will be required under the Merger Agreement to extend the Offer. During any extension of the initial offer period, all Shares previously validly tendered and not validly withdrawn will remain subject to the Offer and subject to withdrawal rights. See Section 4 Withdrawal Rights.
If, subject to the terms of the Merger Agreement, the Purchaser makes a material change in the terms of the Offer or the information concerning the Offer, or if it waives a material condition of the Offer, the Purchaser will disseminate additional tender offer materials and extend the Offer, if and to the extent required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the Exchange Act, or otherwise. The minimum period during which an Offer must remain open following material changes in the terms of the Offer, other than a change in price, percentage of securities sought, or inclusion of or changes to a dealers soliciting fee, will depend upon the facts and circumstances, including the materiality, of the changes. In the SECs view, an offer to purchase should remain open for a minimum of five business days from the date the material change is first published, sent or given to stockholders and, if material changes are made with respect to information that approaches the significance of price and share levels, a minimum of ten business days may be required to allow for adequate dissemination and investor response. Accordingly, if prior to the Expiration Date the Purchaser decreases the number of Shares being sought or changes the consideration offered pursuant to the Offer, and if the Offer is scheduled to expire at any time earlier than the tenth business day from the date that notice of such increase or change is first published, sent or given to stockholders, the Offer will be extended at least until the expiration of such tenth business day.
The Purchaser expressly reserves the right, in its sole discretion, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, not to accept for payment any Shares if, at the expiration of the Offer, any of the Offer Conditions set forth in Section 15 Certain Conditions of the Offer have not been satisfied or upon the occurrence of any of the events set forth in Section 11 The Merger Agreement; Other Agreements Termination. Under certain circumstances, Parent and the Purchaser may terminate the Merger Agreement and the Offer, but Parent and the Purchaser are prohibited from terminating the Offer prior to any then-scheduled Expiration Date, unless the Merger Agreement has been terminated in accordance with its terms.
The Purchaser expressly reserves the right, in its sole discretion, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, to delay acceptance of Shares and to delay payment for Shares pending receipt of any governmental regulatory approvals specified in Section 16 Certain Legal Matters; Regulatory Approvals. See Section 15 Certain Conditions of the Offer and Section 16 Certain Legal Matters; Regulatory Approvals. The reservation by the Purchaser of the right to delay the acceptance of or payment for Shares is subject to the provisions of Rule 14e-1(c) under the Exchange Act, which requires the Purchaser to pay the consideration offered or to return Shares deposited by or on behalf of tendering stockholders promptly after the termination or withdrawal of the Offer.
Any extension of the Offer, waiver, amendment of the Offer, delay in acceptance for payment or payment or termination of the Offer will be followed, as promptly as practicable, by public announcement thereof, the
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announcement in the case of an extension to be issued not later than 9:00 A.M., New York City time, on the next business day after the previously scheduled Expiration Date in accordance with the public announcement requirements of Rules 14d-4(d), 14d-6(c) and l4e-1(d) under the Exchange Act. Without limiting the obligations of the Purchaser under those rules or the manner in which the Purchaser may choose to make any public announcement, the Purchaser currently intends to make announcements by issuing a press release to a national news service and making any appropriate filings with the SEC.
Goldfield has provided the Purchaser its list of stockholders with security position listings for the purpose of dissemination of the Offer to holders of Shares. The Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of Shares whose names appear on Goldfields stockholder list and will be furnished to brokers, dealers, commercial banks, trust companies or other nominees whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agencys security position listing, for subsequent transmittal to beneficial owners of Shares.
2. |
Acceptance for Payment and Payment for Shares. |
Upon the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of any such extension or amendment), including the satisfaction or, to the extent permitted, earlier waiver of the Offer Conditions set forth in Section 15 Certain Conditions of the Offer, the Purchaser will, and Parent will cause Purchaser to, accept for payment and will pay or cause the Depositary and Paying Agent to pay for all Shares validly tendered and not validly withdrawn prior to the Expiration Date pursuant to the Offer promptly after the Expiration Date. Subject to the terms and conditions of the Merger Agreement and the applicable rules of the SEC, the Purchaser expressly reserves the right to delay acceptance for payment of, or payment for, Shares, pending receipt of regulatory or governmental approvals specified in Section 16 Certain Legal Matters; Regulatory Approvals. For information with respect to approvals that we are or may be required to obtain prior to the completion of the Offer, see Section 16 Certain Legal Matters; Regulatory Approvals.
In all cases, payment for Shares tendered and accepted for payment pursuant to the Offer will be made only after timely receipt by the Depositary and Paying Agent of (a) certificates representing those Shares or confirmation of the book-entry transfer of those Shares into the Depositary and Paying Agents account at The Depository Trust Company (DTC) pursuant to the procedures set forth in Section 3 Procedures for Accepting the Offer and Tendering Shares, (b) a Letter of Transmittal (or, with respect to a recognized Medallion Program approved by The Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges Medallion Program (each, an Eligible Institution), a manually executed facsimile thereof or an Agents Message (as defined in Section 3 Procedures for Accepting the Offer and Tendering Shares below)), properly completed and duly executed, with any required signature guarantees and (c) any other documents required by the Letter of Transmittal. See Section 3 Procedures for Accepting the Offer and Tendering Shares. Accordingly, tendering stockholders may be paid, at different times, depending upon when certificates or book-entry transfer confirmations with respect to their Shares are actually received by the Depositary and Paying Agent.
For purposes of the Offer, the Purchaser will be deemed to have accepted for payment and thereby purchased Shares validly tendered and not validly withdrawn if and when the Purchaser gives oral or written notice to the Depositary and Paying Agent of its acceptance for payment of those Shares pursuant to the Offer. Payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the purchase price therefor with the Depositary and Paying Agent, which will act as agent for the tendering stockholders for purposes of receiving payments from the Purchaser and transmitting those payments to the tendering stockholders. Under no circumstances will interest be paid on the Offer Price for Shares, regardless of any extension of the Offer or any delay in payment for Shares.
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Shares tendered by a Notice of Guaranteed Delivery will not be deemed validly tendered for any purpose, including for purposes of satisfying the Minimum Condition, unless and until Shares underlying such Notice of Guaranteed Delivery are delivered to the Depositary and Paying Agent.
If any tendered Shares are not accepted for payment pursuant to the terms and conditions of the Offer for any reason, or if certificates are submitted for more Shares than are tendered, certificates for those unpurchased Shares will be returned (or new certificates for such Shares not tendered will be sent), without expense to the tendering stockholder (or, in the case of Shares tendered by book-entry transfer into the Depositary and Paying Agents account at DTC pursuant to the procedures set forth in Section 3 Procedures for Accepting the Offer and Tendering Shares those Shares will be credited to an account maintained with DTC) promptly following expiration or termination of the Offer.
If, prior to the Expiration Date, the Purchaser increases the consideration offered to holders of Shares pursuant to the Offer, that increased consideration will be paid to holders of all Shares that are tendered pursuant to the Offer, whether or not those Shares were tendered prior to that increase in consideration.
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Procedures for Accepting the Offer and Tendering Shares. |
Valid Tenders. Except as set forth below, to validly tender Shares pursuant to the Offer, (a) a properly completed and duly executed Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof) in accordance with the instructions of the Letter of Transmittal, with any required signature guarantees, or an Agents Message (as defined below) in connection with a book-entry delivery of Shares, and any other documents required by the Letter of Transmittal, must be received by the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase prior to the Expiration Date and either (1) certificates representing Shares tendered must be delivered to the Depositary and Paying Agent or (2) those Shares must be properly delivered pursuant to the procedures for book-entry transfer described below and a confirmation of that delivery received by the Depositary and Paying Agent (which confirmation must include an Agents Message if the tendering stockholder has not delivered a Letter of Transmittal), in each case, prior to the Expiration Date, or (b) the tendering stockholder must comply with the guaranteed delivery procedures set forth below. The term Agents Message means a message, transmitted through electronic means by DTC to, and received by, the Depositary and Paying Agent and forming a part of a Book-Entry Confirmation (as defined below), which states that (x) DTC has received an express acknowledgment from the participant in DTC tendering such Shares which are the subject of that Book-Entry Confirmation that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and (y) the Purchaser may enforce that agreement against the participant. The term Agents Message also includes any hard copy printout evidencing such message generated by a computer terminal maintained at the Depositary and Paying Agents office.
Book-Entry Transfer. The Depositary and Paying Agent has agreed to establish an account with respect to Shares at DTC for purposes of the Offer within two business days after the date of this Offer to Purchase. Any financial institution that is a participant in DTCs systems may make a book-entry transfer of Shares by causing DTC to transfer those Shares into the Depositary and Paying Agents account in accordance with DTCs procedures for that transfer using DTCs ATOP system. However, although delivery of Shares may be effected through book-entry transfer, either the Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof), properly completed and duly executed, together with any required signature guarantees, or an Agents Message in lieu of the Letter of Transmittal, and any other required documents, must, in any case, be transmitted to and received by the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase by the Expiration Date, or the tendering stockholder must comply with the guaranteed delivery procedures described below. The confirmation of a book-entry transfer of Shares into the Depositary and Paying Agents account at DTC as described above is referred to herein as a Book-Entry Confirmation.
Delivery of documents to DTC in accordance with DTCs procedures does not constitute delivery to the Depositary and Paying Agent.
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Signature Guarantees and Stock Powers. Except as otherwise provided below, all signatures on a Letter of Transmittal must be guaranteed by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of a recognized Medallion Program approved by an Eligible Institution. Signatures on a Letter of Transmittal need not be guaranteed (a) if the Letter of Transmittal is signed by the registered owner(s) (which term, for purposes of this section, includes any participant in any of DTCs systems whose name appears on a security position listing as the owner of such Shares) of Shares tendered therewith and such registered owner has not completed the box entitled Special Payment Instructions or the box entitled Special Delivery Instructions on the Letter of Transmittal or (b) if those Shares are tendered for the account of an Eligible Institution. See Instructions 1 and 5 of the Letter of Transmittal. If the Letter of Transmittal is signed by a person other than the registered owner(s) of such Shares listed, or if payment is to be made to or certificates for Shares representing Shares not tendered or accepted for payment are to be issued in the name of a person other than the registered owners(s), then the tendered certificates must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name or names of the registered owner(s) or holder(s) appear on the certificates, with the signatures on the certificates or stock powers guaranteed as described above. See Instructions 1 and 5 of the Letter of Transmittal.
If certificates representing Shares are forwarded separately to the Depositary and Paying Agent, a properly completed and duly executed Letter of Transmittal must accompany each delivery of certificates.
Guaranteed Delivery. A stockholder who desires to tender Shares pursuant to the Offer and whose certificates for Shares are not immediately available, or who cannot comply with the procedure for book-entry transfer prior to the expiration of the Offer, or who cannot deliver all required documents to the Depositary and Paying Agent prior to the Expiration Date, may tender those Shares by satisfying all of the requirements set forth below:
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the tender is made by or through an Eligible Institution; |
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a properly completed and duly executed Notice of Guaranteed Delivery, substantially in the form provided by the Purchaser, is received by the Depositary and Paying Agent (as provided below) prior to the Expiration Date; and |
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the certificates for all tendered Shares, in proper form for transfer (or a Book-Entry Confirmation with respect to all those Shares), together with a properly completed and duly executed Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof), with any required signature guarantees (or, in the case of a book-entry transfer, an Agents Message in lieu of the Letter of Transmittal), and any other required documents, are received by the Depositary and Paying Agent within two NYSE American trading days after the date of execution of the Notice of Guaranteed Delivery. A trading day is any day on which the NYSE American is open for business. |
The Notice of Guaranteed Delivery may be delivered by overnight courier or transmitted via facsimile transmission or mailed to the Depositary and Paying Agent and must include a guarantee by an Eligible Institution in the form set forth in the Notice of Guaranteed Delivery made available by the Purchaser. In the case of Shares held through DTC, the Notice of Guaranteed Delivery must be delivered to the Depositary and Paying Agent by a participant by means of the confirmation system of DTC.
Shares tendered by a Notice of Guaranteed Delivery will not be deemed validly tendered for any purpose, including for purposes of satisfying the Minimum Condition, unless and until Shares underlying such Notice of Guaranteed Delivery are delivered to the Depositary and Paying Agent.
The method of delivery of Shares, the Letter of Transmittal and all other required documents, including delivery through DTC, is at the election and risk of the tendering stockholder. Delivery of all those documents will be deemed made, and risk of loss of the certificate representing Shares will pass, only when actually received by the Depositary and Paying Agent (including, in the case of a book-entry
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transfer, by Book-Entry Confirmation). If the delivery is by mail, it is recommended that all those documents be sent by properly insured registered mail with return receipt requested. In all cases, sufficient time should be allowed to ensure timely delivery.
The tender of Shares (pursuant to any one of the procedures described above) will constitute the tendering stockholders acceptance of the Offer, as well as the tendering stockholders representation and warranty that such stockholder has the full power and authority to tender, sell, transfer and assign such Shares tendered, as specified in the Letter of Transmittal (and any and all other Shares or other securities issued or issuable in respect of such Shares), and that when the Purchaser accepts such Shares for payment, it will acquire good and unencumbered title, free and clear of all liens, restrictions, charges and encumbrances and not subject to any adverse claims. The Purchasers acceptance for payment of Shares (tendered pursuant to one of the procedures described above) will constitute a binding agreement between the tendering stockholder and the Purchaser upon the terms and subject to the conditions of the Offer.
Other Requirements. Notwithstanding any provision of this Offer to Purchase, the Purchaser will pay for Shares pursuant to the Offer only after timely receipt by the Depositary and Paying Agent of (a) certificates for (or a timely Book-Entry Confirmation with respect to) those Shares, (b) a Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof), properly completed and duly executed, with any required signature guarantees (or, in the case of a book-entry transfer, an Agents Message in lieu of the Letter of Transmittal) and (c) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when certificates or Book-Entry Confirmations with respect to their Shares are actually received by the Depositary and Paying Agent. Under no circumstances will interest be paid by the Purchaser on the purchase price of Shares, regardless of any extension of the Offer or any delay in making that payment.
Binding Agreement. The acceptance for payment by the Purchaser of Shares tendered pursuant to one of the procedures described above will constitute a binding agreement between the tendering stockholder and the Purchaser upon the terms and subject to the conditions of the Offer.
Determination of Validity. All questions as to validity, form and eligibility (including time of receipt) of the surrender of any certificate for Shares hereunder, including questions as to the proper completion or execution of any Letter of Transmittal, Notice of Guaranteed Delivery or other required documents and as to the proper form for transfer of any certificates for Shares, will be determined by the Purchaser (which may delegate power in whole or in part to the Depositary and Paying Agent) in its sole and absolute discretion which determination will be final and binding. The Purchaser reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of or payment for which may be unlawful. The Purchaser also reserves the absolute right to waive any defect or irregularity in the surrender of any Shares or certificate(s) for Shares whether or not similar defects or irregularities are waived in the case of any other stockholder. A surrender will not be deemed to have been validly made until all defects and irregularities have been cured or waived. None of Parent, the Purchaser or any of their respective affiliates or assigns, the Depositary and Paying Agent, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification. The Purchasers interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the Instructions thereto and any other documents related to the Offer) will be final and binding.
Appointment. By executing and delivering a Letter of Transmittal as set forth above (or, in the case of a book-entry transfer, by delivery of an Agents Message in lieu of a Letter of Transmittal), the tendering stockholder irrevocably appoints designees of the Purchaser as that stockholders true and lawful agent and attorney-in-fact and proxies, each with full power of substitution and re-substitution, to the full extent of that stockholders rights with respect to such Shares tendered by that stockholder and accepted for payment by the Purchaser and with respect to any and all other Shares or other securities issued or issuable in respect of those Shares on or after the date of the Merger Agreement. Such proxies and powers of attorney will be irrevocable and
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deemed to be coupled with an interest in the tendered Shares. Such appointment is effective when, and only to the extent that, the Purchaser accepts for payment Shares tendered by the stockholder as provided herein. Upon the effectiveness of the appointment, without further action, all prior powers of attorney, proxies and consents given by that stockholder will be revoked, and no subsequent powers of attorney, proxies and consents may be given (and, if given, will not be deemed effective). Upon the effectiveness of the appointment, the Purchasers designees will, with respect to such Shares or other securities and rights for which the appointment is effective, be empowered to exercise all voting and other rights of that stockholder as they, in their sole discretion, may deem proper at any annual, special, adjourned or postponed meeting of Goldfields stockholders, by written consent in lieu of any such meeting or otherwise. The Purchaser reserves the right to require that, in order for Shares to be deemed validly tendered, immediately upon the Purchasers payment for those Shares, the Purchaser must be able to exercise full voting, consent and other rights to the extent permitted under applicable law with respect to those Shares, including voting at any meeting of stockholders or executing a written consent concerning any matter.
Backup Withholding. Under the United States federal income tax backup withholding rules, the Depositary and Paying Agent (as the payor) may be required to withhold and pay over to the Internal Revenue Service (IRS) a portion (currently, 24%) of the amount of any payments made by the Purchaser to a stockholder pursuant to the Offer, unless the stockholder provides his or her taxpayer identification number (TIN) and certifies that such stockholder is not subject to backup withholding by completing the IRS Form W-9 included in the Letter of Transmittal, or otherwise establishes a valid exemption from backup withholding to the satisfaction of the Depositary and Paying Agent. If a United States Holder (as defined in Section 5 Material United States Federal Income Tax Consequences) does not provide its correct TIN or fails to provide the certifications described above, the IRS may impose a penalty on the stockholder and payment of cash to the stockholder pursuant to the Offer may be subject to backup withholding. All United States Holders surrendering Shares pursuant to the Offer should complete and sign the IRS Form W-9 included in the Letter of Transmittal to provide the information necessary to avoid backup withholding. Certain stockholders (including, among others, corporations and certain foreign persons) are exempt from backup withholding and payments to such persons will not be subject to backup withholding provided that a valid exemption is established. Each non-United States Holder must submit an appropriate properly completed executed original IRS Form W-8 (a copy of which may be obtained from the IRS website at http://www.irs.gov) certifying, under penalties of perjury, to such non-United States Holders foreign status in order to establish an exemption from backup withholding. See Instruction 9 of the Letter of Transmittal.
No alternative, conditional or contingent tenders will be accepted.
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Withdrawal Rights. |
A stockholder may withdraw Shares tendered pursuant to the Offer at any time on or prior to the Expiration Date and, if not previously accepted, at any time after January 30, 2021, the date that is 60 days after the date of the commencement of the Offer, pursuant to SEC regulations, but only in accordance with the procedures described in this Section 4; otherwise, the tender of Shares pursuant to the Offer is irrevocable.
For a withdrawal of Shares to be effective, a written or, with respect to Eligible Institutions, facsimile transmission, notice of withdrawal with respect to such Shares must be timely received by the Depositary and Paying Agent at one of its addresses set forth on the back cover of this Offer to Purchase. Any notice of withdrawal must specify the name of the person having tendered such Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of such Shares to be withdrawn, if different from that of the person who tendered those Shares. The signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless those Shares have been tendered for the account of any Eligible Institution. If Shares have been tendered pursuant to the procedures for book-entry transfer as set forth in Section 3 Procedures for Accepting the Offer and Tendering Shares, any notice of withdrawal must specify the name and number of the account at DTC to be credited with the withdrawn Shares. If certificates representing such Shares to be withdrawn have been delivered
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or otherwise identified to the Depositary and Paying Agent, the name of the registered owner and the serial numbers shown on those certificates must also be furnished to the Depositary and Paying Agent prior to the physical release of those certificates. If a stockholder tenders Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, the stockholder must instruct the broker, dealer, commercial bank, trust company or other nominee to arrange for the withdrawal of those Shares.
If the Purchaser extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept for payment Shares pursuant to the Offer for any reason, then, without prejudice to the Purchasers rights under this Offer, the Depositary and Paying Agent may nevertheless, on behalf of the Purchaser, retain tendered Shares, and those Shares may not be withdrawn except to the extent that tendering stockholders are entitled to withdrawal rights as described herein.
Withdrawals of tenders of Shares may not be rescinded, and any Shares validly withdrawn will be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be retendered by following one of the procedures for tendering shares described in Section 3 Procedures for Accepting the Offer and Tendering Shares at any time prior to the Expiration Date.
All questions as to the form and validity (including time of receipt) of any notice of withdrawal will be determined by the Purchaser in its sole and absolute discretion (which may delegate power in whole or in part to the Depositary and Paying Agent), which determination will be final and binding. The Purchaser also reserves the absolute right to waive any defect or irregularity in the notice of withdrawal of any particular stockholder whether or not similar defects or irregularities are waived in the case of any other stockholder. No withdrawal of Shares will be deemed to have been properly made until all defects and irregularities have been cured or waived. None of Parent, the Purchaser or any of their respective affiliates or assigns, the Depositary and Paying Agent, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give that notification.
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Material United States Federal Income Tax Consequences. |
The following is a summary of the material United States federal income tax consequences to beneficial owners of Shares upon the exchange of Shares for cash pursuant to the Offer or the Merger. This summary is general in nature and does not discuss all aspects of United States federal income taxation that may be relevant to a holder of Shares in light of its particular circumstances. In addition, this summary does not describe any tax consequences arising under the laws of any state, local or non-United States jurisdiction or under any applicable tax treaty or any tax consequences (e.g. estate or gift tax) other than United States federal income taxation. This summary deals only with Shares held as capital assets, and does not address tax considerations applicable to any holder of Shares that may be subject to special treatment under the United States federal income tax laws, including, without limitation:
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a bank or other financial institution; |
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a tax-exempt organization; |
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a retirement plan or other tax-deferred account; |
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a partnership or other pass-through entity (or an investor in a partnership or other pass-through entity); |
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an insurance company; |
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a mutual fund; |
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a dealer or broker in stocks and securities, or currencies; |
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a trader in securities that elects mark-to-market treatment; |
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a regulated investment company; |
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a real estate investment trust; |
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a person who acquired Shares through the exercise of employee stock options, or in other compensatory transactions or who holds Shares that are subject to vesting restrictions; |
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a United States Holder (as defined below) that has a functional currency other than the United States dollar; |
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a person that holds Shares as part of a hedge, straddle, constructive sale, conversion or other integrated or risk reduction transaction; |
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persons who own or owned (actually or constructively) more than 5% of our Shares at any time during the five year period ending on the date of sale (or, if applicable, the Merger); |
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a controlled foreign corporation; |
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a passive foreign investment company; |
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a United States expatriate and certain former citizens or long-term residents of the United States; |
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any person who owns actually or constructively owns an equity interest in Parent or the surviving corporation; |
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a holder of Shares that is required to accelerate the recognition of any item of gross income with respect to the Shares as a result of that income being recognized on an applicable financial statement; or |
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any holder of Shares that exercises its appraisal rights pursuant to Section 262 of the DGCL. |
This discussion also does not address any aspect of the alternative minimum tax or the tax consequences arising from the Medicare tax on net investment income. If a partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes) holds Shares, the tax treatment of a partner in the partnership generally will depend upon the status of the partner and the activities of the partner and the partnership. Partners in a partnership holding Shares should consult their own tax advisors regarding the tax consequences of exchanging the Shares pursuant to the Offer or pursuant to the Merger.
This summary is based on the Internal Revenue Code of 1986, as amended (the Code), the Treasury regulations promulgated under the Code, and administrative rulings and judicial decisions, all as in effect as of the date of this Offer to Purchase, and all of which are subject to change or differing interpretations at any time, with possible retroactive effect. The discussion set out herein is intended only as a summary of the material United States federal income tax consequences to a holder of Shares and does not discuss all aspects of United States federal income taxation that may be relevant to particular holders of Shares. Holders of Shares should consult their own tax advisors with respect to the specific tax consequences to them in connection with the Offer and the Merger in light of their own particular circumstances, including federal estate, gift and other non-income tax consequences, and tax consequences under state, local or non-United States tax laws.
United States Holders.
For purposes of this discussion, the term United States Holder means a beneficial owner of Shares that is, for United States federal income tax purposes:
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a citizen or resident of the United States; |
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a corporation (or any other entity or arrangement treated as a corporation for United States federal income tax purposes) organized in or under the laws of the United States or any state thereof or the District of Columbia; |
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an estate, the income of which is subject to United States federal income taxation regardless of its source; or |
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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. |
Payments with Respect to Shares.
The exchange of Shares for cash pursuant to the Offer or pursuant to the Merger will be a taxable transaction for United States federal income tax purposes, and a United States Holder who receives cash for Shares pursuant to the Offer or the Merger will recognize gain or loss, if any, equal to the difference between the amount of cash received and the holders adjusted tax basis in such Shares exchanged therefor. A United States Holders adjusted tax basis in Shares will generally be equal to the cost of such Shares to the United States Holder, reduced (but not below zero) by any previous returns of capital. Gain or loss will be determined separately for each block of Shares (i.e., Shares acquired at the same cost in a single transaction). Such gain or loss will generally be capital gain or loss, and will generally be long-term capital gain or loss if such United States Holder has held its Shares for more than one year at the time of the exchange. Long-term capital gain recognized by certain non-corporate holders is generally eligible for reduced rates of taxation. The deductibility of capital losses is subject to limitations.
Backup Withholding Tax.
Proceeds from the exchange of Shares pursuant to the Offer or pursuant to the Merger generally will be subject to backup withholding tax at the applicable rate (currently, 24%) unless the United States Holder provides a valid TIN 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. Any amounts withheld under the backup withholding tax rules from a payment to a United States Holder will be allowed as a credit against that holders United States federal income tax liability and may entitle the holder to a refund, provided that the required information is timely furnished to the IRS. Each United States Holder should complete and sign the IRS Form W-9, which will be included with the Letter of Transmittal to be returned to the Depositary and Paying Agent, to provide the information and certification necessary to avoid backup withholding, unless an exemption applies and is established in a manner satisfactory to the Depositary and Paying Agent. See Section 3 Procedures for Accepting the Offer and Tendering Shares.
Non-United States Holders.
The following is a summary of the material United States federal income tax consequences that will apply to you if you are a non-United States Holder of Shares. The term non-United States Holder means a beneficial owner of Shares that is neither a United States Holder nor a partnership (or any other entity or arrangement treated as a partnership for United States federal income tax purposes).
Payments with Respect to Shares.
Subject to the discussion under -Backup Withholding Tax below, any gain realized by a non-United States Holder with respect to Shares exchanged for cash pursuant to the Offer or the Merger generally will be exempt from United States federal income tax unless:
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the gain is effectively connected with a trade or business of such non-United States Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent |
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establishment maintained by such non-United States Holder in the United States), in which case (i) such non-United States Holder generally will be subject to United States federal income tax in the same manner as if it were a United States Holder, and (ii) if the non-United States Holder is a corporation, it may be subject to branch profits tax at a rate of 30% (or a lower rate under an applicable income tax treaty); or |
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such non-United States Holder is an individual who was present in the United States for 183 days or more in the taxable year of the exchange and certain other conditions are met, in which case such non-United States Holder will be subject to tax at a flat rate of 30% (or such lower rate as may be specified under an applicable income tax treaty) on any gain from the exchange of such Shares, net of applicable United States-source losses from sales or exchanges of other capital assets recognized during the same taxable year. |
Backup Withholding Tax.
A non-United States Holder may be subject to backup withholding tax with respect to the proceeds from the disposition of Shares pursuant to the Offer or pursuant to the Merger unless the non-United States Holder certifies under penalties of perjury on an applicable IRS Form W-8 that such non-United States Holder is not a United States person, or such non-United States Holder otherwise establishes an exemption in a manner satisfactory to the Depositary and Paying Agent. Each non-United States Holder should complete, sign and provide to the Depositary and Paying Agent an applicable IRS Form W-8 to provide the information and certification necessary to avoid backup withholding, unless an exemption applies and is established in a manner satisfactory to the Depositary and Paying Agent.
Any amounts withheld under the backup withholding tax rules will be allowed as a refund or a credit against the non-United States Holders United States federal income tax liability, provided the required information is timely furnished to the IRS.
6. |
Price Range of Shares; Dividends. |
Shares are listed on NYSE American under the symbol GV. The Shares are the longest traded security on the NYSE American and its predecessor exchanges, having commenced trading in 1906. The following table sets forth, for the fiscal quarters indicated, the high and low intra-day sales prices per Share as reported on NYSE American since January 1, 2018.
High | Low | |||||||
Fiscal Year Ended December 31, 2018: |
||||||||
First Quarter |
$ | 5.35 | $ | 3.60 | ||||
Second Quarter |
$ | 4.63 | $ | 3.70 | ||||
Third Quarter |
$ | 4.96 | $ | 4.11 | ||||
Fourth Quarter |
$ | 4.32 | $ | 1.98 | ||||
Fiscal Year Ending December 31, 2019: |
||||||||
First Quarter |
$ | 2.87 | $ | 2.15 | ||||
Second Quarter |
$ | 2.95 | $ | 2.19 | ||||
Third Quarter |
$ | 2.49 | $ | 1.97 | ||||
Fourth Quarter |
$ | 3.68 | $ | 2.02 | ||||
Fiscal Year Ending December 31, 2020: |
||||||||
First Quarter |
$ | 3.94 | $ | 2.26 | ||||
Second Quarter |
$ | 4.16 | $ | 2.66 | ||||
Third Quarter |
$ | 4.90 | $ | 3.46 | ||||
Fourth Quarter (through November 30, 2020) |
$ | 6.99 | $ | 4.01 |
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On November 23, 2020, the last NYSE American trading day before Parent and Goldfield announced that they had entered into the Merger Agreement, the closing price of Shares reported on NYSE American was $4.27 per Share; therefore, the Offer Price of $7.00 per Share represents a premium of approximately 64% over such price and a premium of 57% over the 30-day volume-weighted average price of $4.46 as of the same date. On November 30, 2020, the last NYSE American trading day prior to the commencement of this Offer, the closing price of Shares reported on NYSE American was $6.97 per Share.
Stockholders are urged to obtain current market quotations for Shares before making a decision with respect to the Offer.
Goldfield has not paid any cash dividends on its Shares since 1933. In addition, under the terms of the Merger Agreement, Goldfield is not permitted to declare or pay dividends in respect of its Shares unless consented to by Parent in writing.
7. |
Certain Information Concerning Goldfield. |
The following description of Goldfield and its business has been taken from Goldfields Annual Report on Form 10-K for the fiscal year ended December 31, 2019, and is qualified in its entirety by reference to such report.
General. Goldfield is a Delaware corporation with principal executive offices located at 1684 W. Hibiscus Boulevard, Melbourne, Florida 32901. Goldfields telephone number at its corporate headquarters is (321) 724-1700. Goldfield, incorporated in Wyoming in 1906 and subsequently reincorporated in Delaware in 1968, is engaged in both the construction of electrical infrastructure for the utility industry and industrial customers and to a considerably lesser extent real estate development. Real estate development represented 7.1% and 1% of Goldfields total revenue in 2019 and 2018, respectively. The principal market for the electrical construction operation is primarily in the Southeast, mid-Atlantic and Texas-Southwest regions of the United States. The primary focus of the real estate operations is on the development of residential properties on the east coast of Central Florida.
Available Information. Goldfield is subject to the information and reporting requirements of the Exchange Act and in accordance therewith is obligated to file reports and other information with the SEC relating to its business, financial condition and other matters. Certain information, as of particular dates, concerning Goldfields business, principal physical properties, capital structure, material pending litigation, operating results, financial condition, directors and officers (including their remuneration and equity awards granted to them), the principal holders of Goldfields securities, any material interests of such persons in transactions with Goldfield, and other matters are required to be disclosed in proxy statements and periodic reports distributed to Goldfields stockholders and filed or furnished with the SEC. Such reports, proxy statements and other information should be available for inspection at the public reference facilities maintained by the SEC at the SECs Public Reference Room at 100 F Street N.E., Washington, D.C. 20549. Information regarding the public reference facilities may be obtained from the SEC by telephoning 1-800-SEC-0330. Copies of such materials may also be obtained by mail, upon payment of the SECs customary fees, by writing to its principal office at 100 F Street N.E., Washington, D.C. 20549. The SEC also maintains an Internet web site that contains reports, proxy statements and other information about issuers, such as Goldfield, who file electronically with the SEC. The address of that site is http://www.sec.gov. Goldfield also maintains a website at www.goldfieldcorp.com. The information contained in, accessible from or connected to Goldfields website is not incorporated into, or otherwise a part of, this Offer to Purchase or any of Goldfields filings with the SEC. The website addresses referred to in this paragraph are inactive text references and are not intended to be actual links to the websites.
Sources of Information. Except as otherwise set forth herein, the information concerning Goldfield and its business has been taken from Goldfields Annual Report on Form 10-K for its fiscal year ended December 31, 2019, publicly available documents and records on file with the SEC and other public sources and is qualified in
24
its entirety by such records. Although we have no knowledge that any such information contains any misstatements or omissions, none of Parent, the Purchaser, the Information Agent or the Depositary and Paying Agent, or any of their respective affiliates or assigns assumes responsibility for the accuracy or completeness of the information concerning Goldfield contained in those documents and records or for any failure by Goldfield to disclose events which may have occurred or may affect the significance or accuracy of any such information.
Certain Projections. Goldfield has provided us with certain selected unaudited projected financial information concerning Goldfield (the Management Forecasts). Such information, as well as certain additional unaudited projected financial information, is described in Goldfields Schedule 14D-9, which will be filed with the SEC and is being mailed to Goldfields stockholders with this Offer to Purchase. Goldfields stockholders are urged to, and should, carefully read the Schedule 14D-9. Goldfield has advised us that such unaudited projected financial information has been included in the Schedule 14D-9 solely for the purpose of providing stockholders and investors access to certain non-public information that was furnished to third parties and such information may not be appropriate for other purposes.
Goldfield has further advised us that the Management Forecasts were not prepared with a view toward public disclosure, nor were they prepared with a view toward compliance with published guidelines of the SEC, the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of financial forecasts, or U.S. generally accepted accounting principles. In addition, Goldfield has advised us that the Management Forecasts were not prepared with the assistance of or audited, reviewed, compiled or examined by independent accountants. Goldfield has advised us that the summary of the Management Forecasts is not being included in the Schedule 14D-9 to influence any stockholders decision whether to tender his, her or its Shares in the Offer, but because the Management Forecasts were made available by Goldfield to the Goldfield Board and were used by Stifel in connection with the rendering of its fairness opinion to the Goldfield Board and performing its related financial analyses. In addition, before entering into the Merger Agreement, representatives of Parent conducted a due diligence review of Goldfield and, in connection with their review, received certain information from the Management Forecasts. Goldfield has advised us that the Management Forecasts may differ from publicized analyst estimates and forecasts and do not take into account any events or circumstances after the date they were prepared, including the announcement of the Offer and Merger.
Goldfield has further advised us that the Management Forecasts are subjective in many respects and were based on numerous variables and assumptions that are inherently uncertain and may be beyond the control of Goldfields management. Goldfield has advised us that, because the Management Forecasts cover multiple years, they become subject to greater uncertainty with each successive year. Goldfield has advised us that important factors that may affect actual results and result in such forecasts not being achieved include, but are not limited to: the loss of one or more key customers; increased competition within the electrical construction industry; a change in economic conditions in the electric utility industry; increases in labor costs; increases in environmental and regulatory compliance costs; and other risk factors described in Goldfields annual report on Form 10-K for the fiscal year ended December 31, 2019, subsequent quarterly reports on Form 10-Q and current reports on Form 8-K. In addition, Goldfield has advised us that the Management Forecasts do not reflect any events that could affect Goldfields prospects, changes in general business or economic conditions or any other transaction or event that has occurred since, or that may occur and that was not anticipated at, the time the Management Forecasts were prepared, including the announcement of the potential acquisition of Goldfield by Parent and the Purchaser pursuant to the Offer and the Merger. Further, Goldfield has advised us that the Management Forecasts do not take into account the effect of any failure to occur of the Offer or the Merger and should not be viewed as accurate or continuing in that context. Goldfield has advised us that these assumptions upon which the Management Forecasts were based necessarily involve judgments with respect to, among other things, future economic, competitive and regulatory conditions and financial market conditions, all of which are difficult or impossible to predict accurately and many of which are beyond Goldfields control. Goldfield has advised us that the Management Forecasts also reflect assumptions as to certain business decisions that are subject to change.
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Accordingly, there can be no assurance that the forecasts contained in the Management Forecasts will be realized, and actual results may vary materially from those shown. The inclusion of the Management Forecasts in the Schedule 14D-9 should not be regarded as an indication that Goldfield, Parent, the Purchaser or any of their respective affiliates, officers, directors, advisors or other representatives considered or consider the Management Forecasts necessarily predictive of actual future events, and the Management Forecasts should not be relied upon as such. None of Goldfield, Parent, the Purchaser or any of their respective affiliates, officers, directors, advisors or other representatives can give any assurance that actual results will not differ from these Management Forecasts, and none of Goldfield, Parent or the Purchaser undertakes any obligation to update or otherwise revise or reconcile the Management Forecasts to reflect circumstances existing or arising after the date such Management Forecasts 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.
None of Goldfield, Parent, the Purchaser or any of their respective affiliates, officers, directors, advisors or other representatives intend to make publicly available any update or other revisions to these Management Forecasts. None of Goldfield, Parent, the Purchaser or any of their respective affiliates, officers, directors, advisors or other representatives have made or make any representation to any stockholder or other person regarding the ultimate performance of Goldfield compared to the information contained in the Management Forecasts or that forecasted results will be achieved. Goldfield has made no representation to Parent or the Purchaser, in the Merger Agreement or otherwise, concerning the Management Forecasts.
In light of the foregoing factors and the uncertainties inherent in such unaudited projected financial information, readers of Goldfields Schedule 14D-9 are cautioned not to place undue, if any, reliance on the unaudited projected financial information.
8. |
Certain Information Concerning Parent and the Purchaser. |
Parent is a Delaware corporation with its principal executive offices located at 290 Harbor Drive, 5th Floor, Stamford, Connecticut 06902. The telephone number of Parent is (203) 661-6601. Purchaser is a Delaware corporation with its principal executive offices located at 290 Harbor Drive, 5th Floor, Stamford, Connecticut 06902. The telephone number of Purchaser is (203) 661-6601. Parent and Purchaser were both formed on November 12, 2020 solely for the purpose of completing the proposed Offer and Merger and have conducted no business activities other than those related to the structuring and negotiation of the Offer and the Merger and arranging of the Equity Financing and the Debt Financing (as described below in Section 9 Source and Amount of Funds) in connection with the Offer and the Merger. Parent and Purchaser have no assets or liabilities other than their contractual rights and obligations related to the Merger Agreement. Until immediately prior to the time the Purchaser purchases Shares pursuant to the Offer, it is not anticipated that Parent or Purchaser will have any significant assets or liabilities or engage in activities other than those incidental to their formation and capitalization and the transactions contemplated by the Offer and the Merger. Purchaser is a wholly owned subsidiary of Parent.
First Reserve Fund XIV, L.P., a Cayman Islands exempted limited partnership (First Reserve) is the controlling stockholder of Parent. First Reserve has provided to Purchaser an equity commitment equal to $210 million (the Equity Commitment Letter), subject to the adjustments, terms and conditions set forth in the Equity Commitment Letter. See Section 9 Source and Amount of Funds. We refer to the Purchaser, Parent and First Reserve, collectively, as the Participant Group. The business office address of each member of the Participant Group and each such members telephone number is set forth in the attached Schedule I. The name, citizenship, business address, present principal occupation or employment and five-year employment history of each of the members, directors or executive officers of each member of the Participant Group are set forth in Schedule I to this Offer to Purchase.
Except as described in this Offer to Purchase, (i) none of the members of the Participant Group nor, to the knowledge of any member of the Participant Group, any of the persons listed in Schedule I to this Offer to
26
Purchase, beneficially owns or has any right to acquire, directly or indirectly, any Shares or other equity securities of Goldfield and (ii) none of the members of the Participant Group nor, to the knowledge of any member of the Participant Group, any of the persons or entities referred to above has effected any transaction in Shares during the past 60 days.
Except as set forth elsewhere in this Offer to Purchase, (i) none of the members of the Participant Group nor, to the knowledge of any member of the Participant Group, any of the persons listed in Schedule I, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of Goldfield, including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or voting of such securities, finders fees, joint ventures, loan or option arrangements, puts or calls, guarantees of loans, guarantees against loss, guarantees of profits, division of profits or loss or the giving or withholding of proxies, (ii) during the two years prior to the date of this Offer to Purchase, there have been no transactions that would require reporting under the rules and regulations of the SEC between any member of the Participant Group or, to the knowledge of the members of the Participant Group, any of the persons listed in Schedule I, on the one hand, and Goldfield or any of its executive officers, directors and/or affiliates, on the other hand, and (iii) during the two years prior to the date of this Offer to Purchase, there have been no contracts, negotiations or transactions between any member of the Participant Group or, to the knowledge of the members of the Participant Group, any of the persons listed in Schedule I, on the one hand, and Goldfield or any of its executive officers, directors and/or affiliates, on the other hand concerning a merger, consolidation or acquisition, tender offer or other acquisition of securities, an election of directors or a sale or other transfer of a material amount of assets.
None of the members of the Participant Group nor, to the knowledge of any of the members of the Participant Group, any of the persons listed in Schedule I has, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). None of the members of the Participant Group nor, to the knowledge of any of the members of the Participant Group, any of the persons listed in Schedule I to this Offer to Purchase has, during the past five years, been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws.
Available Information. Pursuant to Rule 14d-3 under the Exchange Act, Parent, Purchaser and First Reserve filed with the SEC a Tender Offer Statement on Schedule TO (as amended, the Schedule TO), of which this Offer to Purchase forms a part, and exhibits to the Schedule TO. The Schedule TO and the exhibits thereto can be inspected and copied at the Public Reference Room maintained by the SEC at 100 F Street, N.E., Washington, D.C. 20549-0213. Information regarding the Public Reference Room may be obtained from the SEC by telephoning 1-800-SEC-0330. These filings are also available to the public on the SECs internet site (http://www.sec.gov). Copies of such materials may also be obtained by mail from the Public Reference Section of the SEC at 100 F Street, N.E., Washington, D.C. 20549-0213 at prescribed rates.
9. |
Source and Amount of Funds. |
The Purchaser estimates that it will need up to approximately $172 million to purchase all of the issued and outstanding Shares in the Offer, to provide funding for the consideration to be paid in the Merger, to refinance Goldfields existing indebtedness and to pay related fees and expenses at the closing of the Transactions. First Reserve has provided to Purchaser an equity commitment equal to $210 million. The proceeds of the equity commitment and debt commitment, which, together with Goldfields approximately $10.8 million of available cash following the Merger, will be sufficient to pay the Offer Price for all Shares tendered in the Offer, to pay the consideration to be paid in the Merger, to refinance Goldfields existing indebtedness and to pay all related fees and expenses. In addition, Purchaser has received the Debt Commitment Letter, pursuant to which its lenders have agreed to provide it with a $125 million. Subject to certain conditions, the term loans provided with respect to the Debt Financing will be fully drawn on the date of the closing of the Merger and available to the Borrowers
27
as the term is defined in the Debt Commitment Letter, to finance the Offer and the Merger, pay related fees and expenses and refinance a portion of Parents existing indebtedness. Funding of the Debt Financing and the Equity Financing (as defined below) is subject to the satisfaction of various conditions set forth in the Debt Commitment Letter and the Equity Commitment Letter. The Offer and the Merger are not conditioned upon Parents or Purchasers ability to finance the purchase of Shares pursuant to the Offer and pay for the Shares acquired in the Merger.
We do not think that our financial condition is relevant to your decision whether to tender Shares and accept the Offer because (i) the consideration offered in the Offer consists solely of cash, (ii) the Offer is being made for all issued and outstanding Shares, (iii) if we consummate the Offer, subject to the satisfaction or waiver of certain conditions, we have agreed to acquire all remaining Shares for the same cash price in the Merger, (iv) the Offer is not subject to any financing condition, and (v) we have all of the financial resources, including committed debt and equity financing, sufficient to finance the Offer and the Merger.
Equity Financing.
Purchaser has received an equity commitment letter dated as of November 23, 2020 (the Equity Commitment Letter, and together with the Debt Commitment Letter, the Commitment Letters), pursuant to which First Reserve has committed to contribute, subject to the terms and conditions of the Equity Commitment Letter, to Purchaser an amount equal to $210 million (subject to adjustment as set forth in the Equity Commitment Letter) in cash for the purpose of funding, and to the extent necessary to fund, the aggregate Offer Price or Merger Consideration, and/or fees, costs and expenses required to be paid in connection with the Transactions pursuant to and in accordance with the Merger Agreement, and certain other amounts required to be paid pursuant to the Merger Agreement (such committed equity financing, the Equity Financing and together with the Debt Financing, the Financing). The funding of the Equity Financing is subject to (i) the execution and delivery by Goldfield, Parent and Purchaser of the Merger Agreement, and (ii) the satisfaction, or waiver by Purchaser, of all of the conditions of the Offer in the Merger Agreement as of the Expiration Date, all of the conditions of the Merger in the Merger Agreement as of the Effective Time (see Section 11 The Merger Agreement; Other Agreements) and the substantially concurrent consummation of the Merger in accordance with the terms of the Merger Agreement. First Reserves equity commitment is subject to reduction in the event Purchaser does not require all of the Equity Financing in order to satisfy its obligations.
Goldfield is a third party beneficiary of the Equity Commitment Letter for the limited purposes provided in the Equity Commitment Letter, which is limited to, subject to the terms and conditions of the Merger Agreement, the right of Goldfield to seek specific performance of Purchasers right to cause the Equity Financing to be funded as, and only to the extent provided in, the Equity Commitment Letter.
The obligation of First Reserve to fund its equity commitment will terminate upon the earliest to occur of (i) the valid termination of the Merger Agreement, (ii) the closing of the Merger, (iii) Goldfield or any of its affiliates asserting any claim or commencing a lawsuit or other claim, action, suit, investigation or proceeding under the Limited Guaranty (as described below) or otherwise against any Investor or any Parent Representative as such terms are defined in the Equity Commitment Letter, in connection with the Merger Agreement or any of the transactions contemplated thereby, other than Goldfields right to seek specific performance under the Merger Agreement, (iv) any person, other than the Purchaser, seeking to enforce the Equity Commitment Letter, other than Goldfields right to seek specific performance under the Merger Agreement, or (v) the funding of the Equity Financing in full.
The foregoing summary of certain provisions of the Equity Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Equity Commitment Letter, a copy of which has been filed as Exhibit (d)(4) to the Schedule TO and which is incorporated herein by reference.
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Limited Guaranty.
Concurrently with the execution and delivery of the Equity Commitment Letter, First Reserve executed and delivered to Goldfield a limited guaranty (the Limited Guaranty) in favor of Goldfield in respect of Purchasers obligation under the Merger Agreement for the payment of (i) the Parent Termination Fee when due, and (ii) (x) certain fees, costs and expenses in connection with any proceeding to enforce payment of the Parent Termination Fee and (y) reasonable out-of-pocket and documented expenses incurred in connection actions taken to support the Debt Financing (clauses (i) and (ii), collectively, the Limited Guaranty Obligations), provided that in no event will First Reserves aggregate liability under the Limited Guaranty exceed the sum of Parent Termination Fee (if payable) under clause (i) above plus the lesser of the costs incurred under clause (ii) above and $1,000,000 (Guaranty Cap). The obligations of First Reserve under the Limited Guaranty terminate upon the earliest to occur of: (a) the closing of the Merger, (b) the date Limited Guaranty Obligations equal to the Guaranty Cap have been paid in full, (c) the three-month anniversary of termination of the Merger Agreement in accordance with its terms where Parent would be obligated to make any payment in connection with the termination under the Merger Agreement, if Goldfield has not by the three-month anniversary commenced a suit, action or other proceeding against Purchaser alleging payment is due under the Merger Agreement in connection with the termination or against First Reserve that amounts are due pursuant to the Limited Guaranty, or, if Goldfield has commenced such suit, action or other proceeding prior to such three-month anniversary, the date such claim is finally satisfied or otherwise resolved and the Limited Guaranty Obligations, if any and subject to the Guaranty Cap, are paid in full, and (d) the termination of the Merger Agreement in accordance with its terms under circumstances in which Purchaser would not be obligated to make payments with respect to any of the Limited Guaranty Obligations.
The foregoing summary of certain provisions of the Limited Guaranty does not purport to be complete and is qualified in its entirety by reference to the full text of the Limited Guaranty, a copy of which has been filed as Exhibit (d)(3) to the Schedule TO and which is incorporated herein by reference.
Debt Financing.
The Purchaser has received a debt commitment letter dated November 23, 2020 (the Debt Commitment Letter) from Citizens Bank, N.A. (Citizens) and Sumitomo Mitsui Banking Corporation (SMBC, and, together with Citizens, the Debt Commitment Parties) to provide, subject to the conditions set forth in the Debt Commitment Letter, to the Purchaser (which includes for purposes of the description of the debt financing, Goldfield as the surviving entity of the Merger), $125.0 million in senior secured credit facilities, consisting of a (i) $25.0 million first lien senior secured revolving credit facility (the Revolving Facility) and (ii) $100.0 million in aggregate principal amount of first lien senior secured term loans (the Term Facility and together with the Revolving Facility, the Debt Financing).
The commitment of the Debt Commitment Parties with respect to the Debt Financing expires upon the earliest to occur of (i) 11:59 P.M. New York City time on the date that is five business days after the Outside Date, (ii) the consummation of the Merger without the funding of the Debt Financing, and (iii) the date on which the Merger Agreement is terminated in accordance with its terms. The documentation governing the Debt Financing has not been finalized and, accordingly, the actual terms of the Debt Financing may differ from those described in this document. The Purchaser has agreed to use its reasonable best efforts to arrange the Debt Financing on the terms and conditions described in the Debt Commitment Letter.
Although the Debt Financing described in this document is not subject to a due diligence or market out, such financing may not be considered assured. As of the date hereof, no alternative financing arrangements or alternative financing plans have been made in the event the Debt Financing described herein is not available.
The availability of the Debt Financing is subject to, among other things, the purchase of Shares in the Offer and the consummation of the Merger in accordance with the Merger Agreement (including the satisfaction or
29
waiver with the consent of the Administrative Agent (as defined below) and the Senior Lead Arrangers (as defined below) of all conditions precedent to the consummation of the Merger, and without any material amendment, waiver, modification or consent of any of the provisions thereof that are materially adverse to the initial lenders without the consent of the Senior Lead Arrangers (or their respective affiliates) having a majority in aggregate principal amount of commitments with respect to the Debt Financing), the absence of a Company Material Adverse Effect (as defined in the Merger Agreement and as described below in Section 11 The Merger Agreement; Other Agreements), solvency of the Purchaser and its subsidiaries on a consolidated basis after giving effect to the Transactions, payment of required fees and expenses, the funding of the Equity Financing, delivery of certain historical and pro forma financial information, delivery of documentation and other information required by regulatory authorities under applicable know your customer and anti-money laundering rules and regulations, affording the Senior Lead Arrangers a limited period of time to syndicate the Debt Financing, the execution of certain guarantees and the creation and perfection of certain security interests, the accuracy of specified Merger Agreement representations and specified representations in all material respects, the negotiation, execution and delivery of definitive documentation, and the refinancing of certain of the existing debt facilities of the borrowers using funds from the initial borrowing.
Key terms of the Debt Financing are summarized below:
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Roles. Each of Citizens and SMBC has been appointed as joint lead arranger and joint book-runner for the Debt Financing (which we refer to collectively as the Senior Lead Arrangers). Citizens will act as sole administrative agent and collateral agent for the Debt Financing (Administrative Agent). |
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Interest Rate. The Revolving Facility is expected to bear interest, at Purchasers option, at a rate equal to (i) LIBOR plus 5.50% or (ii) an alternate base rate plus 4.50%. The Term Facility is expected to bear interest, at the Purchasers option, at a rate equal to (i) LIBOR plus 5.50% or (ii) an alternative base rate plus 4.50%. For both the Revolving Facility and the Term Facility, the alternate base rate will be subject to one 0.25% step-down based on achievement of a certain leverage ratio. |
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Prepayments. Voluntary reductions of the unutilized portion of the Debt Financing commitments and prepayments of borrowings will be permitted at any time (subject to customary notice requirements), in minimum principal amounts to be agreed, without premium or penalty (except as set forth below), subject to reimbursement of the lenders redeployment costs in the case of a prepayment of Adjusted LIBOR (as defined in the Debt Commitment Letter) borrowings prior to the last day of the relevant interest period, subject to certain limitations set forth in the Debt Commitment Letter. |
There will be no mandatory prepayments for the Revolving Facility, subject to customary prepayment requirements if the aggregate amount of borrowings exceed the commitments thereunder. As for the Term Facility, term loans shall be prepaid with (a) 50% of excess cash flow for each fiscal year of the Purchaser (commencing with the first full fiscal year ending after the Effective Time) with step-downs to 25% upon achievement of a consolidated first lien net leverage ratio equal to or less than 3.50:1.00 and 0% upon achievement of a consolidated first lien net leverage ratio equal to or less than 3.00:1.00, (b) 100% of the net cash proceeds above an amount to be agreed upon of all non-ordinary course asset sales or other dispositions of property by the Purchaser and its restricted subsidiaries (including casualty insurance and condemnation proceeds in excess of an amount to be agreed), subject to the right of the Purchaser to reinvest if such proceeds are reinvested (or committed to be reinvested) within 12 months and, if so committed to be reinvested, reinvested within 180 days thereafter, and subject to certain exceptions to be agreed and (c) 100% of the net cash proceeds of issuances of debt obligations of the Purchaser and its restricted subsidiaries (except the net cash proceeds of any permitted debt other than refinancing debt).
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Guarantors. All obligations under the Debt Financing will be guaranteed by Parent, the Purchaser and each existing and future direct and indirect, wholly-owned domestic subsidiary of the Purchaser, subject to carve-outs, thresholds and limitations applicable to the Debt Financing. |
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Security. The obligations of Parent, the Purchaser and the guarantors under the Debt Financing and under any interest rate protection or other hedging arrangements entered into with any Debt |
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Commitment Parties (or any affiliates of the foregoing), will be secured on a first priority basis by substantially all of the present and after-acquired assets of the Purchaser and each guarantor. If certain security is not provided at the closing of the Transactions despite the use of commercially reasonable efforts to do so, the delivery of such security will not be a condition precedent to the availability of the Debt Financing on the closing date of the Debt Financing, but instead will be required to be delivered following the closing date of the Debt Financing pursuant to arrangements to be mutually agreed. |
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Other Terms. The Debt Financing will contain customary representations and warranties and customary affirmative and negative covenants, including, among other things, restrictions on indebtedness, investments, sales of assets, mergers and consolidations, prepayments of subordinated indebtedness, liens and dividends and other distributions. The Debt Financing will also include customary events of defaults including a change of control. |
The foregoing summary of certain provisions of the Debt Commitment Letters do not purport to be complete and are qualified in their entirety by reference to the Debt Commitment Letters themselves, which are incorporated herein by reference. We have filed copies of the Debt Commitment Letters as Exhibit (b)(1) to the Schedule TO, which are incorporated herein by reference.
Other than as discussed in this Section 9, there are currently no replacement financing arrangements or replacement financing plans.
10. |
Background of the Offer; Past Contacts or Negotiations with Goldfield. |
The following is a description of significant contacts between representatives of First Reserve, Parent and the Purchaser, on the one hand, and representatives of Goldfield, on the other hand, that resulted in the execution of the Merger Agreement and commencement of the Offer. The discussion below covers only the key events and does not attempt to describe every communication among the parties. For a review of Goldfields activities relating to the contacts leading to the Merger Agreement, please refer to the Schedule 14D-9, which will be filed by Goldfield with the SEC and is being mailed to stockholders concurrently with this Offer to Purchase.
In mid-2019, First Reserves management team commenced a process to explore and evaluate potential investment opportunities in the utility services space, including acquisitions of public companies.
On February 13, 2020, Stifel reached out to a representative of First Reserve regarding the opportunity of acquiring Goldfield.
On March 2, 2020, First Reserve executed a confidentiality agreement with Goldfield. Also on March 2, 2020, First Reserve received preliminary materials related to Goldfield from Stifel.
On March 17, 2020, First Reserves management team and representatives of Stifel had an introductory telephonic meeting to discuss and explore the opportunity of acquiring Goldfield. However, due to the effect of and circumstances around COVID-19, the Goldfield Board decided that it would put the acquisition process on hold and First Reserves management team decided that they would reevaluate the opportunity with Goldfield at a later date.
On June 26, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting to re-open discussions regarding the potential acquisition of Goldfield.
On August 18, 2020, Stifels representatives provided updated financial materials and a process letter, which summarized the procedures and timetable for providing a non-binding indication of interest. The process letter established September 2, 2020 as the deadline to submit a preliminary non-binding indication of interest.
On August 25, 2020, First Reserves management team and representatives of Stifel had another telephonic meeting to discuss and explore the opportunity of acquiring Goldfield, and the proper timing for such acquisition.
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On September 2, 2020, First Reserve submitted a preliminary non-binding indication of interest with respect to an acquisition of all of the equity of Goldfield at a total enterprise value of $174 million and a per Share price of $5.75 (or $6.43 per Share when excluding operating leases from net debt like items in the calculation).
On September 10, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting in which Stifel provided feedback on First Reserves preliminary non-binding indication of interest and described the next steps in the process.
On September 30, 2020, representatives of Stifel and Goldfields management team gave a management presentation to First Reserves management team and discussed the business.
On October 5, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting to debrief and discuss thoughts and follow-up questions from the initial management presentation.
On October 8, 2020, Stifel informed First Reserve that it had been invited to the second round of the process. Stifel provided another process letter, which summarized the procedures and timetable for the submission of a non-binding letter of intent for the acquisition of Goldfield. The process letter established October 28, 2020 as the deadline to submit a non-binding letter of intent. Also on October 8, 2020, Goldfield and Stifel provided First Reserve and its advisors access to a virtual data room containing materials in respect of Goldfield for purposes of First Reserves preliminary due diligence investigation.
On October 14, 2020, representatives of Stifel uploaded a form Merger Agreement to the virtual data room, which provided that the acquisition of Goldfield would be structured as a tender offer.
On October 20, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and certain of First Reserves advisors had a virtual diligence meeting to discuss financial and accounting diligence matters.
On October 23, 2020, First Reserves management team, representatives of Stifel and Goldfields management team had an in-person diligence meeting in Wakefield Room A at the Hilton Melbourne Rialto Place, 200 Rialto Place, Melbourne, Florida 32901 to cover various topics.
On October 26, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting to discuss the real estate business of Goldfield.
On October 28, 2020, First Reserve submitted a non-binding letter of intent with respect to an acquisition of all of the equity of Goldfield with a per Share price of $7.00 and a total enterprise value of approximately $205 million. First Reserve also submitted proposed drafts of the Merger Agreement and related documentation including an Equity Commitment Letter and a Limited Guaranty, which had been prepared by representatives of Simpson Thacher & Bartlett LLP (Simpson Thacher), outside counsel to First Reserve.
On October 30, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting to clarify some points in First Reserve non-binding letter of intent, including quality of earnings and debt-like items. On the same date, Stifel requested that best and final bids be submitted and established by November 9, 2020.
On November 6, 2020, First Reserves management team, representatives of Stifel and Goldfields management team had a virtual diligence meeting during which various topics related to the business and the potential transaction were discussed.
On November 9, 2020, First Reserve submitted a non-binding best and final letter of intent with respect to an acquisition of all of the equity of Goldfield with a per Share price of $7.00 and a total enterprise value of approximately $214 million.
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On November 10, 2020, Stifel notified First Reserve that the Goldfield Board was willing to grant First Reserve exclusivity under the terms that were submitted as part of First Reserves non-binding best and final letter of intent dated November 9, 2020.
On November 11, 2020, First Reserve and Goldfield executed the Exclusivity Agreement, pursuant to which, among other things, Goldfield agreed to a period of exclusive negotiation with First Reserve commencing on the date of the Exclusivity Agreement and ending at 11:59 p.m. (New York City time) on November 18, 2020. The Exclusivity Agreement further provided that if the parties continued to negotiate in good faith towards a transaction, the Exclusivity Period would be automatically extended to 11:59 p.m. (New York City time) on November 25, 2020. See Section 11 The Merger Agreement; Other Agreements Exclusivity Agreement. Also on November 11, 2020, First Reserves management team and representatives of Stifel had a telephonic meeting to discuss the completion of ongoing third-party diligence work streams. Further, on November 11, 2020, K&L Gates LLP (K&L Gates), outside counsel to Goldfield, sent a revised draft of the Merger Agreement to representatives of Simpson Thacher.
On November 12, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and certain of First Reserves advisors had a virtual meeting to discuss tax and structuring diligence matters. Also on November 12, 2020, representatives of K&L Gates sent revised drafts of the Equity Commitment Letter and Limited Guaranty to representatives of Simpson Thacher.
On November 13, 2020, First Reserves management team, representatives of Stifel and Goldfields management team had a virtual meeting to discuss the steps required to complete the confirmatory due diligence process.
On November 16, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and certain of First Reserves advisors had a virtual meeting to discuss equipment-related diligence matters. Also on November 16, 2020, representatives of Simpson Thacher sent revised drafts of the Merger Agreement and related documentation, including the Equity Commitment Letter, the Limited Guaranty and the Tender and Support Agreement, to representatives of K&L Gates. Further on November 16, 2020, representatives of K&L Gates sent a revised draft of the Tender and Support Agreement to representatives of Simpson Thacher.
On November 17, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and certain of First Reserves advisors, including representatives of Simpson Thacher, had virtual meetings to discuss various legal diligence matters. Also on November 17, 2020, representatives of K&L Gates sent revised drafts of the Equity Commitment Letter and Limited Guaranty to representatives of Simpson Thacher. Further on November 17, 2020, representatives of Simpson Thacher sent a revised draft of the Tender and Support Agreement to representatives of K&L Gates.
On November 18, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and certain of First Reserves advisors, including representatives of Simpson Thacher, had various virtual meetings to discuss various legal diligence matters. Also on November 18, 2020, representatives of Simpson Thacher sent revised drafts of the Equity Commitment Letter and Limited Guaranty to representatives of K&L Gates.
On November 19, 2020, First Reserves management team, representatives of Stifel, Goldfields management team and related officers and certain of First Reserves advisors, including representatives of Simpson Thacher, had various telephonic meetings to discuss certain legal diligence matters. Also on November 19, 2020, First Reserves management team, representatives of Stifel and Goldfields management team had a virtual meeting to discuss business diligence findings. Also on November 19, 2020, representatives of Simpson Thacher and representatives of K&L Gates discussed issues in the Merger Agreement. Further, on November 19, 2020, representatives of K&L Gates sent revised drafts of the Merger Agreement and the Equity Commitment Letter.
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On November 20, 2020, First Reserves management team and Goldfields management team had two virtual meetings, one to discuss the Merger Agreement and related transaction documentation and one to meet Goldfields divisional vice presidents.
On November 21, 2020, representatives of Simpson Thacher sent revised drafts of the Merger Agreement and related documents to representatives of K&L Gates. Also on November 21, 2020, First Reserves management team and Goldfields management team had individual virtual meetings with each of Goldfields divisional vice presidents.
On November 22, 2020, representatives of K&L Gates informed representatives of Simpson Thacher that the Goldfield Board held a special meeting to consider the adoption and approval of the Merger Agreement and the transactions contemplated thereby, which was attended by representatives of Stifel and K&L Gates. At such special meeting, the Goldfield Board unanimously (i) determined that the Merger Agreement and the Transactions, including the Offer and the Merger, are advisable and in the best interests of Goldfield and Goldfields stockholders, (ii) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, (iii) resolved to recommend that the stockholders of Goldfield accept the Offer and tender their shares to Purchaser pursuant to the Offer, and (iv) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the Offer Acceptance Time.
On November 22, 2020, representatives of K&L Gates had a telephonic meeting with representatives of Simpson Thacher to discuss the remaining issues in the Merger Agreement and related documentation. Also on November 22, 2020, First Reserves management team, representatives of Stifel and Goldfields management team had a virtual meeting to discuss the Merger Agreement and related transaction documentation. Further on November 22, 2020, representatives of K&L Gates sent a revised draft of the Merger Agreement to representatives of Simpson Thacher.
Throughout the day on November 23, 2020, representatives of Simpson Thacher and representatives of K&L Gates had discussions and exchanged draft documentation to finalize the Merger Agreement and related documents, including the disclosure schedules. During the evening of November 23, 2020, Parent, the Purchaser and Goldfield executed the Merger Agreement and the Limited Guaranty, and Parent and the Purchaser received the Equity Commitment Letter from First Reserve and the Debt Commitment Letter from the Debt Commitment Parties.
Prior to the opening of U.S. stock markets on November 24, 2020, Parent, the Purchaser and Goldfield issued a joint press release publicly announcing the execution of the Merger Agreement.
11. |
The Merger Agreement; Other Agreements. |
The following is a summary of certain provisions of the Merger Agreement. This summary is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO, which is incorporated herein by reference. Copies of the Merger Agreement and the Schedule TO, and any other filings that we make with the SEC with respect to the Offer or the Merger, may be obtained in the manner set forth in Section 7 Certain Information Concerning Goldfield. Capitalized terms used but not defined in this section will have the respective meanings given to them in this Offer to Purchase. Stockholders of Goldfield and other interested parties should read the Merger Agreement for a more complete description of the provisions summarized below.
The Offer.
The Merger Agreement provides that the Purchaser will commence the Offer to purchase all Shares at a price per share equal to the Offer Price by December 8, 2020, and that, subject only to the satisfaction, or waiver by the Purchaser or Parent, of the Offer Conditions that are described in Section 15 Certain Conditions of the Offer, the Purchaser will (and Parent will cause the Purchaser) to consummate the Offer in accordance with its
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terms and accept for payment and promptly pay (or cause the Depositary and Paying Agent to pay) for all such Shares validly tendered and not validly withdrawn pursuant to the Offer. The initial Expiration Date of the Offer will be 11:59 P.M., New York City time, on December 29, 2020.
Terms and Conditions of the Offer.
The obligations of Purchaser to, and of Parent to cause Purchaser to, accept for payment, and pay for, any Shares validly tendered (and not withdrawn) pursuant to the Offer are subject only to the terms and conditions set forth in the Merger Agreement, including the prior satisfaction of or waiver by Parent or Purchaser in their sole discretion of the Minimum Condition, the Termination Condition and the other Offer Conditions. See Section 15 Certain Conditions of the Offer. Under the terms of the Merger Agreement, Purchaser has the right, but not the obligation, to at any time and from time to time in its sole discretion waive, in whole or in part, any Offer Condition or modify the terms of the Offer (including by increasing the Offer Price), except that without the prior written consent of Goldfield, Purchaser may not (i) reduce the number of Shares subject to the Offer, (ii) reduce the Offer Price (except as expressly required or permitted by the Merger Agreement), (iii) amend, modify, supplement or waive the Minimum Condition or the Termination Condition, (iv) amend, modify or supplement any Offer Condition, (v) amend, modify or supplement any Offer Condition in any manner adverse to the holders of Shares or that would reasonably be expected to prevent or materially delay the consummation of the Offer or the Merger, (vi) extend or otherwise change the Offer Expiration Time (except as expressly required or permitted by the Merger Agreement), (vii) change the form of consideration payable in the Offer or (viii) provide for any subsequent offering period (or any extension of any thereof) within the meaning of Rule 14d-11 under the Exchange Act.
Expiration and Extension of the Offer.
The initial Expiration Date of the Offer will be 11:59 P.M., New York City time, on December 29, 2020.
The Merger Agreement provides that, subject to our rights and Goldfields rights to terminate the Merger Agreement in accordance with its terms or terminate the Offer under certain circumstances, we will extend the Offer: any minimum period required by any applicable rule, regulation, interpretation or position of the SEC or the staff thereof or NYSE American (including in order to comply with Exchange Act Rule 14e-1(b) in respect of any change in the Offer Price) or as may be necessary to resolve any comments of the SEC or the staff or NYSE American, in each case, as applicable to the Offer, the Schedule 14D-9 or the Offer Documents, and if, as of any then-scheduled Offer Expiration Time, any Offer Condition set forth in Section 15 Certain Conditions of the Offer is not satisfied and has not been waived by Parent or Purchaser (to the extent permitted hereunder), extend the Offer (x) on one or more occasions in consecutive increments of up to five (5) business days each (or such longer or shorter period as the parties hereto may agree) or (y) if any then-scheduled Offer Expiration Time is five (5) or less business days before the Outside Date, until 11:59 p.m., New York City Time, on the day before the Outside Date (or such other date and time as the parties hereto may agree) (each such extension period, an Additional Offer Period); provided that, in each case, without Goldfields written consent, Purchaser shall not extend the Offer, and without Parents prior written consent, Purchaser shall not be required to extend the Offer, in each case, beyond the earlier of February 19, 2021 or the valid termination of the Merger Agreement in accordance with its terms. Notwithstanding the foregoing, if, at the initial Offer Expiration Time or the end of any Additional Offer Period, all of the Offer Conditions except for the Minimum Condition are satisfied or have been waived by Parent or Purchaser in their sole discretion, Purchaser will only be required to extend the Offer and its expiration date beyond the Offer Expiration Time or such subsequent date upon the request of Goldfield for one or more additional periods of five business days each, not to exceed an aggregate of 15 business days, to permit the Minimum Condition to be satisfied.
Recommendation.
Goldfield has represented in the Merger Agreement that the Goldfield Board has unanimously (a) determined and declared that the Merger Agreement and the Transactions contemplated thereby, including the
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Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the Offer Acceptance Time (the matters described in clauses (a) through (d), the Board Recommendation).
The Merger.
The Merger Agreement provides that, subject to its terms and conditions and in accordance with Section 251(h) of the DGCL, at the Effective Time, the Purchaser will merge with and into Goldfield (the Merger), with Goldfield continuing as the surviving corporation (the Surviving Corporation) in the Merger as a wholly owned subsidiary of Parent. The closing of the Merger will take place as promptly as practicable following the Offer Acceptance Time, subject to the satisfaction or, to the extent permitted, waiver of the conditions to the Merger set forth in the Merger Agreement, or such other date as Parent and Goldfield mutually agree in writing. The Merger shall become effective at the time that the Certificate of Merger is duly filed with the Secretary of State of the State of Delaware, or at such later time as is agreed to by the Purchaser, Parent and Goldfield and specified in the Certificate of Merger (the time at which the Merger becomes effective is herein referred to as the Effective Time).
Certificate of Incorporation; Bylaws; Directors and Officers of the Surviving Corporation.
At the Effective Time, the certificate of incorporation of Goldfield, as in effect immediately prior to the Effective Time, will be amended and restated in its entirety as a result of the Merger and in the form set forth on Exhibit B to the Merger Agreement and the bylaws of the Purchaser, as in effect immediately prior to the Effective Time, will be amended and restated in its entirety as a result of the Merger and in the form set forth on Exhibit C to the Merger Agreement, in each case until amended in accordance with applicable law. The Merger Agreement provides that the directors of the Purchaser immediately prior to the Effective Time will be the initial directors of the Surviving Corporation and the officers of Goldfield immediately prior to the Effective Time will be the initial officers of the Surviving Corporation.
Conditions to the Merger.
The obligations of Goldfield, Parent and Purchaser to consummate the Merger are subject to the satisfaction or, to the extent permitted by applicable law, written waiver, on or prior to the closing of the Merger, of the following conditions: (i) Purchaser (or Parent on Purchasers behalf) shall have consummated the Offer; and (ii) no governmental authority having jurisdiction over any Goldfield, Parent or Purchaser has issued any order, and there is no applicable law or other legal restraint, injunction or prohibition in effect, that makes consummation of the Merger illegal or otherwise prohibited.
Conversion of Shares.
Under the terms of the Merger Agreement, at the Effective Time, by virtue of the Merger and without any action on the part of Parent, Purchaser, Goldfield or any stockholder or any other person:
(a) |
except as otherwise provided in the Merger Agreement, each Share outstanding immediately prior to the Effective Time will (i) be converted automatically into the right to receive an amount in cash equal to the Offer Price (the Merger Consideration) and (ii) cease to be outstanding and shall automatically be canceled and cease to exist and each holder of a certificate representing any such Shares shall have only the right to receive the Merger Consideration with respect thereto in accordance with the terms of the Merger Agreement; |
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(b) |
each Share owned by Parent, Purchaser or any other direct or indirect wholly owned subsidiary of Parent immediately prior to the Effective Time (other than Shares irrevocably accepted for payment by Purchaser in connection with the Offer) will be canceled and cease to exist, and no payment will be made with respect to such Shares and each holder of a certificate representing any such Shares shall cease to have any rights with respect to such Shares; |
(c) |
each Share owned by Goldfield or held in Goldfields treasury immediately prior to the Effective Time will be canceled and cease to exist, and no payment will be made with respect to such Shares and each holder of a certificate representing any such Shares shall cease to have any rights with respect to such Shares; |
(d) |
each Share owned by any direct or indirect wholly owned subsidiary of Goldfield immediately prior to the Effective Time shall remain outstanding and no payment shall be made with respect to such Shares; and |
(e) |
each share of common stock of Purchaser outstanding immediately prior to the Effective Time shall be converted into and become one fully paid, nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation (the Surviving Corporation Common Stock), which, along with any Shares that remain outstanding pursuant to clause (d) above, shall constitute the only outstanding shares of capital stock of the Surviving Corporation as of immediately following the Effective Time. |
Goldfield Restricted Stock Units.
Under the terms of the Merger Agreement, and consistent with the terms of the Goldfield restricted stock units (each a Restricted Stock Unit), each Restricted Stock Unit outstanding immediately prior to the Offer Acceptance Time, whether vested or unvested, will become fully vested and will be canceled as of immediately prior to, and contingent upon, the Effective Time in exchange for the right to receive a lump-sum cash payment, without interest and less any applicable withholding taxes, in an amount equal to the product of (x) the number of Shares issuable under such Restricted Stock Unit multiplied by (y) the Offer Price.
Representations and Warranties.
The Merger Agreement contains representations and warranties of Goldfield, Parent and the Purchaser.
In the Merger Agreement, Goldfield has made customary representations and warranties (qualified by reference to certain SEC filings and its disclosure letter to the Merger Agreement) to Parent and the Purchaser with respect to, among other matters:
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Goldfields corporate existence and power to conduct its business; |
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the corporate organization of Goldfield; |
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Goldfields corporate power and authority to enter into the Merger Agreement; |
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the due execution and delivery by Goldfield of the Merger Agreement and the enforceability of the Merger Agreement against Goldfield; |
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compliance with governmental authorizations by Goldfield and its subsidiaries; |
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the absence of conflicts with the organizational documents of Goldfield, applicable law or contracts of Goldfield; |
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Goldfields and its subsidiaries capital structure; |
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Goldfields filings with the SEC; |
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Goldfields financial statements and internal controls; |
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the accuracy of the information supplied by Goldfield for inclusion in certain SEC filings relating to the Offer; |
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the absence of certain changes or events involving Goldfield; |
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the absence of certain undisclosed liabilities; |
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the absence of legal proceedings involving Goldfield and its subsidiaries; |
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compliance with applicable law by Goldfield and its subsidiaries since January 1, 2018; |
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anti-corruption compliance matters; |
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selected contracts; |
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tax matters; |
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employee benefits plans; |
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labor and employment matters; |
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insurance coverage of Goldfield and its subsidiaries; |
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environmental matters; |
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intellectual property matters; |
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real property matters; |
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the absence of undisclosed related party transactions; |
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brokers or finders fees; |
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the fairness opinion delivered to the Goldfield Board by Stifel as financial advisor to the Goldfield Board; and |
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compliance with takeover laws. |
Some of the representations and warranties in the Merger Agreement made by Goldfield are qualified as to knowledge, materiality or Company Material Adverse Effect.
For purposes of the Merger Agreement, Company Material Adverse Effect means any state of facts, circumstance, condition, event, change, development, occurrence, result or effect (each, an Effect) that, individually or in the aggregate with such other Effects, has a material adverse effect on the business, assets, liabilities, condition (financial or otherwise) or results of operations of Goldfield and its subsidiaries, taken as a whole; provided, however, no Effect to the extent based upon, resulting or arising from any of the following, will be deemed to constitute a Company Material Adverse Effect or will be taken into account in determining whether there has been, or would reasonably be expected to be, a Company Material Adverse Effect:
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changes in the general economic, regulatory, political, business, financial or market conditions in the United States or elsewhere in the world; |
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general changes in the credit, debt, financial or capital markets or in interest or exchange rates, in each case, in the United States or elsewhere in the world; |
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changes in the conditions generally affecting the industries in which Goldfield and its subsidiaries operate; |
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general changes in geopolitical conditions, any outbreak, continuation or escalation of any military conflict, declared or undeclared war, armed hostilities, or acts of foreign or domestic terrorism (including cyber-terrorism); |
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any epidemic, plague, or other outbreak of illness or public health event (including COVID-19), hurricane, flood, tornado, earthquake or other natural disaster or act of God; |
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any failure by Goldfield or any of Goldfields subsidiaries to meet any internal or external projections or forecasts or any decline in the price of Shares or other securities of Goldfield (but excluding, in each case, the underlying causes of such failure or decline, as applicable, unless such underlying causes would otherwise be excepted from this definition); |
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the public announcement or pendency of the Transactions, including, in any such case, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, vendors, lenders, investors, licensors, licensees, venture partners or employees; |
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changes in applicable laws or the interpretation thereof after the date of the Merger Agreement; |
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changes in generally accepted accounting principles in the United States or any other applicable accounting standards or the interpretation thereof after the date of the Merger Agreement; |
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any action required to be taken by Goldfield pursuant to the terms of the Merger Agreement or at the written direction of Parent or Purchaser; |
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any breach of the Merger Agreement by Parent or Purchaser; or |
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any change in Goldfields stock price or trading volume on the NYSE American (but excluding, in each case, the underlying causes of such change, as applicable, unless such underlying causes would otherwise be excepted from this definition); |
except that the Effects referenced in the first, second, third, fourth, fifth, eighth and ninth bullets above are not to be disregarded and will be taken into account in determining whether there is a Company Material Adverse Effect to the extent any such Effects disproportionately impact Goldfield and its subsidiaries, taken as a whole, as compared to other participants in the industries in which Goldfield and Goldfields subsidiaries operate.
In the Merger Agreement, Parent and the Purchaser have made customary representations and warranties (qualified by reference their disclosure letter to the Merger Agreement) to Goldfield with respect to, among other matters:
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the corporate organization and valid existence of Parent and the Purchaser; |
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Parents and the Purchasers power and authority to enter into the Merger Agreement; |
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the due execution and delivery by Parent and the Purchaser of the Merger Agreement and the enforceability of the Merger Agreement against Parent and the Purchaser; |
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compliance with governmental authorizations by Parent and the Purchaser; |
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the absence of conflicts with the organizational documents of Parent or the Purchaser, applicable law, or contracts of Parent or the Purchaser; |
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the capitalization and operation of Purchaser; |
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that no vote of Parent stockholders is required to approve the Merger Agreement; |
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the accuracy of the information supplied by Parent or the Purchaser for inclusion in certain SEC filings relating to the Offer; |
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the absence of legal proceedings involving Parent or its affiliates as of the date of the Merger Agreement; |
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the financing commitments and guarantee obtained by Parent and Purchaser for the Transactions; |
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the Surviving Corporations solvency after giving effect to the Transactions; |
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ownership of Shares by Parent, the Purchaser and Parents subsidiaries; |
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certain agreements; |
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management agreements; and |
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brokers or finders fees. |
Some of the representations and warranties in the Merger Agreement made by Parent and the Purchaser are qualified as to knowledge, materiality or Parent Material Adverse Effect. For purposes of the Merger Agreement, Parent Material Adverse Effect means any Effect that does or would reasonably be expected to prevent, materially delay or materially impair Purchaser or Parent from consummating the Offer or the Merger or any of the other transactions contemplated by the Merger Agreement when required pursuant to the terms and conditions of the Merger Agreement.
The representations and warranties and agreements contained in the Merger Agreement will terminate at the Effective Time, other than any covenant or agreement that by its terms contemplates performance after the Effective Time.
The representations and warranties contained in the Merger Agreement have been made by each party to the Merger Agreement solely for the benefit of the other parties, and those representations and warranties should not be relied on by any other person. In addition, those representations and warranties:
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have been made only for purposes of the Merger Agreement; |
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with respect to Goldfield, have been qualified by (i) matters specifically disclosed in any reports filed by Goldfield with the SEC after January 1, 2018 and prior to the date of the Merger Agreement (subject to certain exceptions) and (ii) confidential disclosures made to Parent and the Purchaser in the disclosure letter delivered in connection with the execution of the Merger Agreement; such information modifies, qualifies and creates exceptions to the representations and warranties in the Merger Agreement; |
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will not survive consummation of the Merger; |
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have been included in the Merger Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters of fact; |
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were, in certain circumstances, made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement; and |
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are subject to materiality qualifications contained in the Merger Agreement which may differ from what may be viewed as material by investors, including qualifications as to materiality or a Material Adverse Effect, as described above. |
Covenants Conduct of Goldfield.
The Merger Agreement provides that from the date of the signing of the Merger Agreement until the earlier of the Effective Time or termination of the Merger Agreement, except as set forth in Goldfields disclosure letter, required by applicable law, expressly required or permitted by the Merger Agreement or undertaken with the prior written consent of Parent, Goldfield will, and will cause each of its subsidiaries to:
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conduct its and their respective business in the ordinary course of business consistent with past practice; |
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use reasonable best efforts to preserve intact its business organization, operations, assets, goodwill and relationships with material customers, suppliers, subcontractors, officers, employees and other third parties having business dealings with Goldfield and its subsidiaries; and |
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operate its and their respective businesses in accordance with applicable law. |
Goldfield has also agreed that, without limiting the generality of the foregoing and except for matters set forth in Goldfields disclosure letter, required by applicable law, expressly required or permitted by the Merger
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Agreement or undertaken with the prior written consent of Parent, Goldfield will not, and will not permit any of its subsidiaries to:
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amend the organizational documents of Goldfield or the organizational documents of any of its subsidiaries (whether by merger, consolidation or otherwise); |
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issue, sell, grant, pledge, transfer, lease, dispose of, grant any lien or otherwise enter into any contract or other agreement with respect to Goldfields securities or any other capital stock or other equity securities of Goldfield or any capital stock of or other equity securities of Goldfields subsidiaries, or grant any options, warrants or other rights to acquire any such capital stock or other interest in or any instrument convertible into or exchangeable or exercisable for any such capital stock or other interest, other than the issuance of shares of Goldfield common stock pursuant to the terms of Goldfields Restricted Stock Units outstanding as of the date of the Merger Agreement pursuant to Goldfields existing stock plans in accordance with the applicable Goldfield stock plan and equity awards terms as in effect on the date of the Merger Agreement; |
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except in connection with actions permitted by the Merger Agreement, take any action to exempt any person from, or make any acquisition of securities of Goldfield by any person not subject to, any state takeover statute or similar statute or regulation that applies to Goldfield with respect to an Acquisition Proposal or otherwise, including the restrictions on business combinations set forth in Section 203 of the DGCL, except for Parent, Purchaser, or any of their respective subsidiaries or affiliates, or the Transactions; |
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adopt any plan of merger, consolidation, reorganization, recapitalization, restructuring, complete or partial liquidation or dissolution of Goldfield or any its subsidiaries, file a petition in bankruptcy under any provisions of federal or state bankruptcy applicable law on behalf of Goldfield or any of its subsidiaries or consent to the filing of any bankruptcy petition against Goldfield or any of its subsidiaries under any similar applicable law; |
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create any subsidiary of Goldfield or any subsidiary of Goldfields existing subsidiaries; |
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establish a record date for, declare, accrue, set aside or pay any dividend or make any other distribution on or in respect of (whether in cash, stock, property or otherwise) Goldfields or any subsidiary of Goldfields capital stock or other securities (other than dividends to Goldfield or from one of its wholly owned subsidiaries) or redeem, repurchase or otherwise reacquire (or offer to redeem, repurchase or otherwise reacquire), split, combine or reclassify any Goldfield securities or capital stock of Goldfield or any of its subsidiaries, or otherwise change the capital structure of Goldfield or any of its subsidiaries, other than (i) any repurchases pursuant to Goldfield or its subsidiaries right (under written commitments in effect as of the date of the signing of the Merger Agreement) to purchase securities of Goldfield or capital stock of Goldfield or any of its subsidiaries held by an officer or other employee, or individual who is an independent contractor, consultant or director, of or to Goldfield or any of its subsidiaries, but only upon termination of such persons employment or engagement by Goldfield, (ii) for purposes of effecting a net share withholding in connection with the vesting of any of Restricted Stock Units in satisfaction of any required tax withholdings or (iii) between Goldfield and a wholly owned subsidiary of Goldfield or between wholly owned subsidiaries of Goldfield; |
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except as required by GAAP or applicable law, (i) revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable, other than in the ordinary course of business consistent with past practice or (ii) make any change in financial accounting methods, principles, policies or practices or procedures; |
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accelerate, terminate or consent to the termination of, cancel, amend in any material respect, grant a waiver of any material right under or otherwise modify in any material respect any Specified Contract (as defined in the Merger Agreement) or any contract that would constitute a specified contract if in effect as of the date of the Merger Agreement or enter into any contract that would constitute a Specified Contract if in effect as of the date of the Merger Agreement; |
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make any capital expenditures or capital expenditure commitments that commits any of Goldfield or its subsidiaries to expend in excess of $1,500,000 in the aggregate; |
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repurchase, prepay, incur, assume or guarantee any indebtedness to any person, issue or sell any debt securities of Goldfield or any of Goldfields subsidiaries or guarantee any debt securities of any other person or enter into any arrangement having the economic effect of any of the foregoing other than any such transactions between Goldfield and one of its wholly owned subsidiaries or borrowings incurred in the ordinary course of business (including any borrowings in respect of letters of credit) that do not, at any time, exceed $250,000, in the aggregate; |
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grant or suffer to exist any liens on any properties or assets of Goldfield or its subsidiaries that are material to Goldfield and its subsidiaries, taken as a whole, other than permitted liens under the terms of the Merger Agreement; |
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make any capital investment in or loan or advance to, or forgive any loan to, any other person except for loans, capital contributions, advances or investments between Goldfield and any wholly owned subsidiaries of Goldfield or between wholly owned subsidiaries of Goldfield and advances to employees and consultants for travel and other business-related expenses in the ordinary course of business consistent with past practices and in compliance with Goldfields policies related thereto; |
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other than in the ordinary course of business and other than with respect to intellectual property rights of Goldfield and its subsidiaries, sell, lease, sublease, license, sublicense, abandon, waive, relinquish, transfer, pledge, abandon, assign, swap, mortgage, hypothecate or otherwise dispose of any of the assets, properties or rights of Goldfield or any of its subsidiaries that are material to Goldfield and its subsidiaries, taken as a whole; |
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purchase or acquire, directly or indirectly (including by merger, consolidation, or acquisition of stock or assets or any other business combination), any corporation, partnership, other business organization or division thereof or any other business or all or substantially all of the assets of any person (other than reorganizations solely among wholly owned subsidiaries of Goldfield) or any assets, real property, securities, properties, interests or businesses from any person (except for a wholly owned subsidiary of Goldfield) having a value in excess of $250,000, in each case, other than acquisitions of raw materials, supplies, equipment, inventory and third-party software in the ordinary course of business; |
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enter into a new line of business or abandon or discontinue any existing line of business; |
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settle, pay, discharge or satisfy any proceeding (or agree to do any of the foregoing), other than any settlement, payment, discharge or satisfaction that (a) does not relate to any transaction litigation or (b) (1) either (x) results solely in a monetary obligation involving only the payment of monies by Goldfield or a subsidiary of Goldfield of not more than $250,000, individually or in the aggregate for all such proceedings (excluding any settlements made under the following clause (y)), or (y) results solely in a monetary obligation that is funded by an indemnity obligation to, or an insurance policy of, Goldfield or any Goldfield subsidiary and the payment of monies by Goldfield or any Goldfield subsidiary that are not more than $250,000, individually or in the aggregate (not funded by an indemnity obligation or through insurance policies) and (2) does not involve any admission of guilt or impose any material restrictions or limitations upon the operations or business of or other conduct remedy or injunctive relief applicable to Goldfield or any subsidiary of Goldfield, whether before, on or after the Effective Time; |
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except as required by applicable law, expressly required or permitted by the Merger Agreement or required by the terms of any Goldfield employee plan as in effect as of the date of the Merger Agreement, (a) increase the compensation or benefits payable by Goldfield or any subsidiary of Goldfield to directors, officers, employees, consultants or independent contractors, other than increases with respect to Goldfield employees who are not directors or executive officers, in the ordinary course of business in connection with Goldfields or one of its subsidiarys annual merit-based compensation review process or job promotions and that do not exceed 3% individually or in the aggregate, |
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(b) establish, adopt, enter into, amend, terminate, or take any action to accelerate rights under any Goldfield employee plans or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Goldfield employee plan if it were in existence as of the date of the Merger Agreement, other than amendments required by applicable law, (c) grant any rights to severance or termination pay to any current or former officer, employee, director, independent contractor or consultant, (d) grant or amend any equity or equity-based awards except as required by existing Goldfield stock plans, or (e) hire or terminate (other than for cause) any officer, employee, independent contractor or consultant, other than individuals with an annual base salary less than $150,000; |
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become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization; |
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sell, license, sublicense, allow to lapse, abandon, assign, transfer, create any lien on (other than permitted liens under the terms of the Merger Agreement), or otherwise grant any rights under any material Goldfield-owned intellectual property or intellectual property exclusively licensed by Goldfield, other than the grant of nonexclusive licenses in the ordinary course of business consistent with past practice, or make any material adverse change to any privacy policy published by Goldfield or any of its subsidiaries, except as required by applicable law; |
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make, rescind or change any material tax election, settle or compromise any claim relating to a material amount of taxes, surrender any right to claim a refund of a material amount of taxes, waive or extend the statute of limitations in respect of a material amount of taxes, enter into any closing agreement or request any ruling with respect to a material amount of taxes, amend any tax return relating to a material amount of taxes or make any material change in any of the methods, principles or practices used by it for tax accounting except as required by applicable law; |
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enter into any material transaction or contract with any affiliate, holder of five percent (5%) or more of the Shares, director or executive officer of Goldfield or any of its subsidiaries or enter into any other material transaction or contract with any other person that would be required to be reported by Goldfield pursuant to Item 404 of Regulation S-K under the Exchange Act; |
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engage in any plant closing or mass layoff which would trigger the notice requirements pursuant to the WARN Act; |
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enter into or adopt any poison pill or similar stockholder rights plan; |
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enter into any contract or commitment which materially restrains, restricts, limits or impedes the ability of Goldfield or any of its affiliates to compete with or conduct any of its respective businesses in any geographic area; |
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fail to maintain in full force and effect or materially modify the existing insurance policies (or alternative policies with comparable terms and conditions) covering Goldfield and its subsidiaries and their respective properties, assets and businesses; or |
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authorize any of, or agree or commit to take, any of the proceeding actions. |
Notwithstanding anything to the contrary above, pursuant to the Merger Agreement the parties acknowledge and agree that nothing contained in the Merger Agreement will give Parent or Purchaser, directly or indirectly, the right to control or direct Goldfields operations (including for purposes of the HSR Act) prior to the consummation of the Offer. Prior to the Effective Time, Goldfield shall exercise, consistent with the terms and conditions of the Merger Agreement, complete control and supervision over its operations.
At or prior to the closing of the Merger, if requested by Parent in writing, Goldfield shall deliver, or cause its applicable subsidiary to deliver, to Parent (or to the title insurance company engaged by Parent) such customary affidavits, indemnities and other agreements, evidence of authority, lien releases and such other documents and instruments reasonably required by such title insurance company in order to issue a title insurance policy with respect to each parcel of owned real property, free and clear of all liens, other than permitted liens under the terms of the Merger Agreement.
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Acquisition Proposals; Change in Recommendation.
Goldfield agreed that it and its subsidiaries and their respective directors and officers will not, and will not authorize their other representatives to, and will direct and cause them not to:
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initiate, solicit, propose, knowingly induce or knowingly encourage or knowingly facilitate (including by providing any information) any Acquisition Proposal, including any inquiries or the submission of any proposals or offers which could reasonably be expected to lead to an Acquisition Proposal; |
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other than informing third parties of the existence of the provisions of the Merger Agreement described in this section, engage in, continue or otherwise participate in negotiations or discussions with, or provide access to its properties, books and records or furnish any non-public information (or access thereto) concerning Goldfield or any of its subsidiaries to, any third party in connection with, relating to or for the purpose of encouraging or facilitating or that could reasonably be expected to lead to, an Acquisition Proposal, |
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recommend, enter into or execute any contract, letter of intent, acquisition agreement, agreement in principle, memorandum of understanding or similar agreement with respect to any Acquisition Proposal, |
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approve, endorse or recommend, or propose publicly to approve, endorse or recommend any Acquisition Proposal, |
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waive, terminate, modify or fail to enforce any standstill or similar provision or obligation of a person (other than Parent or its affiliates) with respect to Goldfield or its subsidiaries or |
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approve, authorize or agree to do any of the foregoing. |
Goldfield further agreed that, immediately following the execution of the Merger Agreement, Goldfield and its subsidiaries and their respective directors and officers shall, and shall direct and cause their respective representatives to, (a) cease and cause to be terminated any solicitation and any and all existing discussions or negotiations with any person conducted prior to the signing of the Merger Agreement with respect to any Acquisition Proposal or any inquiry or request for information that could reasonably be expected to lead to, or result in, an Acquisition Proposal, (b) terminate access by any third party to any physical or electronic data room relating to any potential Acquisition Proposal and (c) deliver written notice to each such person requesting that any such person (other than Parent, Purchaser and their respective representatives) promptly return or destroy all confidential information regarding Goldfield and its subsidiaries. Notwithstanding the forgoing, Goldfield shall be permitted to grant limited waivers of, and not enforce, any standstill provision or similar provision that has the effect of prohibiting the counterparty thereto from making an Acquisition Proposal to the Goldfield Board to the extent that the Goldfield Board determines in good faith, after consultation with outside counsel, that the failure to grant such limited waiver or to not enforce such provision would be inconsistent with Goldfield Boards fiduciary duties under applicable law.
Notwithstanding anything to the contrary contained in the Merger Agreement, if prior to the consummation of the Offer Goldfield receives a bona fide written Acquisition Proposal (which Acquisition Proposal was made after the date of the Merger Agreement and did not result from a material breach of the restrictions described in this section), and the Goldfield Board determines in good faith (after consultation with outside counsel and its financial advisor) that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, then Goldfield and its representatives may: (i) furnish any information with respect to Goldfield and its subsidiaries and access thereto to any third party making such Acquisition Proposal (and its representatives and financing sources); provided that (a) prior to furnishing any such information, Goldfield receives from such third party an executed Acceptable Confidentiality Agreement and (b) any such non-public information so furnished has been previously provided or made available (including through the data room) to Parent substantially concurrent with such information so furnished to such third party or (ii) participate or engage in negotiations or discussions with the third party making such Acquisition Proposal.
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Except as outlined in this section, none of Goldfield, the Goldfield Board nor any committee thereof shall (i) (A) withdraw, withhold or modify, amend or qualify in a manner adverse to Parent or Purchaser, or propose publicly to withdraw, withhold or modify, amend or qualify in a manner adverse to Parent or Purchaser, the Board Recommendation, (B) approve, adopt, recommend or declare advisable, or propose publicly to approve, recommend or declare advisable, any Acquisition Proposal, (C) fail to include the Board Recommendation in the Schedule 14D-9 when disseminated to Goldfields stockholders, (D) if any Acquisition Proposal has been made public, fail to reaffirm the Board Recommendation upon request of Parent within the earlier of three business days prior to the then scheduled Expiration Date or five business days upon receipt of a request from Parent to do so; or (E) fail to recommend against any Acquisition Proposal that is a tender offer or exchange offer subject to Regulation 14D under the Exchange Act within five business days after the commencement of such tender or exchange offer (any action described in this clause (i) being referred to as a Change in Recommendation) or (ii) approve, recommend, declare advisable or enter into or execute any contract, letter of intent, acquisition agreement, agreement in principle, memorandum of understanding or similar agreement with respect to any Acquisition Proposal, other than an Acceptable Confidentiality Agreement (an Alternative Acquisition Agreement).
The Merger Agreement further provides that, at any time prior to the consummation of the Offer, the Goldfield Board may make a Change in Recommendation contemplated in clauses (A) or (C) of the definition thereof in response to an Intervening Event if (i) the Goldfield Board determines in good faith (after consultation with its outside legal and financial advisors) that the failure to do so would be inconsistent with the Goldfield Boards fiduciary duties under applicable law, (ii) (A) Goldfield has provided Parent five business days prior written notice (provided that such notice shall not constitute a Change in Recommendation) advising Parent that Goldfield intends to make a Change in Recommendation, which such notice shall specify, in reasonable detail, the Intervening Event and the reasons for the Change in Recommendation (provided that Parent shall be required to keep all such information confidential in accordance with the terms of the Confidentiality Agreement), and (B): (1) during such five business day period, if requested by Parent, Goldfield and its representatives shall negotiate in good faith with Parent and its representatives regarding any changes to the terms of the Merger Agreement and any other proposals made by Parent so that a failure to effect a Change in Recommendation would no longer be inconsistent with the Goldfield Boards fiduciary duties under applicable law; (2) following such five business day period, after taking into account any changes to the terms of the Merger Agreement and any other proposals made by Parent during such five business day period, the Goldfield Board shall have determined in good faith (after consultation with its outside legal and financial advisors) that the failure to effect a Change in Recommendation in response to such Intervening Event would be inconsistent with the Goldfield Boards fiduciary duties under applicable law; and (3) if Goldfield has validly effected a Change in Recommendation in response to an Intervening Event in compliance with the provisions of the Merger Agreement described in this section, then following such Change in Recommendation Goldfield shall thereafter be permitted to take any action described in clauses (D) and (E) of the definition of Change in Recommendation, and, for the avoidance of doubt, Goldfield shall not be able to take any action described in clause (B) of the definition of Change in Recommendation. In the event of any material change in any event, occurrence or fact relating to such Intervening Event (other than in respect of any revisions proposed or proposals made by Parent as referred to above), a new notice shall be required from Goldfield pursuant to (ii) above, except that the references to five business days shall be deemed to be three business days, and the provisions of this section shall otherwise apply to the Intervening Event as modified thereby.
At any time prior to the consummation of the Offer if, in response to a bona fide written Acquisition Proposal made by a third party after the date of the Merger Agreement which does not arise from a breach of the provisions described in this section and has not been withdrawn, the Goldfield Board determines in good faith (after consultation with its outside legal and financial advisors) that (i) such Acquisition Proposal constitutes a Superior Proposal and (ii) the failure to take an action set forth in clause (x) or (y) would be inconsistent with the Goldfield Boards fiduciary duties under applicable law, then (x) the Goldfield Board may make a Change in Recommendation or (y) Goldfield may terminate the Merger Agreement under Section 8.1(d)(i) (Termination) of the Merger Agreement in order to enter into an definitive agreement with respect to such Superior Proposal;
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provided that in either such case (A) Goldfield shall have provided to Parent five business days prior written notice (the Superior Proposal Notice) (provided that such notice shall not constitute a Change in Recommendation) advising Parent that Goldfield intends to take such action (and specifying, in reasonable detail, the material terms and conditions of any such Superior Proposal, including the identity of the third party making any such Superior Proposal) and providing Parent with a complete copy of any written proposal or offer, including any proposed Alternative Acquisition Agreement or financing documentation, and any other documents containing the material terms of such Superior Proposal (provided that Parent will be required to keep all such documents and their terms confidential in accordance with the terms of the Confidentiality Agreement), and (B): (1) during such five business day period, if requested by Parent, Goldfield and its representatives shall negotiate and discuss in good faith with Parent and its representatives regarding changes to the terms of the Merger Agreement and any other proposals made by Parent intended by Parent to cause such Acquisition Proposal to no longer constitute a Superior Proposal and (2) following such five business day period, after taking into account any changes to the terms of the Merger Agreement made by Parent during such five business day period, the Goldfield Board has determined in good faith (after consultation with its outside legal and financial advisors) that (x) such Acquisition Proposal continues to constitute a Superior Proposal, and (y) the failure to make the Change in Recommendation or terminate the Merger Agreement under Section 8.1(d)(i) (Termination) would be inconsistent with the Goldfield Boards fiduciary duties under applicable law. Any material revisions, modifications or amendments to the terms of such Acquisition Proposal will constitute a new Acquisition Proposal and will in each case require Goldfield to deliver to Parent a new Superior Proposal Notice, except that the references to five business days will be deemed to be three business days.
During the period commencing on the date of the Merger Agreement and ending on the earlier of the valid termination of the Merger Agreement and the Effective Time (the Pre-Closing Period), Goldfield will promptly (and in any event no later than twenty-four (24) hours after receipt) advise Parent orally or in writing in the event that Goldfield receives (x) any Acquisition Proposal, (y) any inquiry, proposal, offer or request for information with respect to, or that could reasonably be expected to lead to, an Acquisition Proposal and in connection with such notice provide to Parent the material terms and conditions of any such Acquisition Proposal (including the identity of the third party making any such Acquisition Proposal including any documents submitted therewith). During the Pre-Closing Period, Goldfield shall (i) notify Parent in writing if Goldfield determines to begin providing non-public information or to engage in discussions or negotiations concerning an Acquisition Proposal, (ii) keep Parent reasonably informed of the status, material details and material terms of any such Acquisition Proposal (including, prior to initially furnishing any information or to commencing any discussions or negotiations, advising Parent of any determination by the Goldfield Board and any discussions and negotiations concerning the material terms and conditions thereof), and (iii) promptly provide to Parent (and in any event no later than twenty four (24) hours after receipt or delivery thereof) any written proposal, indication of interest (or amendment thereto) or any other written material that constitutes or is related to an Acquisition Proposal (or amendment thereto) including copies of any proposed Alternative Acquisition Agreements and any other material agreements (or drafts thereof) and any financing commitments related thereto. Goldfield will not, and will cause its affiliates not to, enter into any contract with any person that prohibits Goldfield, its subsidiaries or representatives from providing such information or any other information described in this section to Parent, Purchaser or their representatives or otherwise limits or impairs Goldfields, its subsidiaries, its affiliates or their respective representatives ability to comply with their respective obligations under the provisions of the Merger Agreement described in this section.
Nothing contained in the Merger Agreement shall prohibit Goldfield or the Goldfield Board, directly or indirectly, through their respective representatives, from (i) taking and disclosing to the stockholders of Goldfield any position contemplated by Rule 14d-9, Rule 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, (ii) making any stop, look and listen communication to Goldfields stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or (iii) making any disclosure to the stockholders of Goldfield that the Goldfield Board determines in good faith (after consultation with its outside legal counsel) that the failure to do so would be inconsistent with the Goldfield Boards fiduciary duties under applicable law; provided that such provisions shall not be deemed to permit the Goldfield Board to make a Change in
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Recommendation except to the extent permitted by the provisions of the Merger Agreement described in this section. Goldfield agrees that any breach of this section by any of its representatives acting on Goldfields behalf shall be deemed a breach of the Merger Agreement by Goldfield.
For purposes of this Offer to Purchase and the Merger Agreement:
Acceptable Confidentiality Agreement means a confidentiality agreement containing terms that are not more favorable to the third party that is party to such agreement and its affiliates and representatives than the terms set forth in the Confidentiality Agreement are to Parent and its affiliates and representatives.
Acquisition Proposal means any indication of interest, inquiry, offer or proposal, including any amendment or modification to any existing indication of interest, inquiry, offer or proposal from any third party, relating to or concerning an Acquisition Transaction (as defined in the Merger Agreement).
Intervening Event means a positive event, occurrence or fact occurring or arising after the date hereof that is material to Goldfield and its subsidiaries taken as a whole and was not known and was not reasonably foreseeable to the Goldfield Board prior to the date of the Merger Agreement (or, if known and reasonably foreseeable, the magnitude or consequences of which were not known and reasonably foreseeable by the Goldfield Board as of the date of the Merger Agreement), other than (i) any event, occurrence or fact that relates to an Acquisition Proposal or (ii) changes in the market price of Goldfields common stock or Goldfield meeting, failing to meet or exceeding published or unpublished revenue or earnings projections (it being understood that the underlying causes of any such changes may, if they are not otherwise excluded from the definition of Intervening Event, be taken into account in determining whether an Intervening Event has occurred).
Superior Proposal means a bona fide written Acquisition Proposal (as defined in the Merger Agreement) (provided that for this purpose the references to twenty percent (20%) in the definition of Acquisition Transaction shall be deemed to be references to fifty percent (50%)) that did not result from a breach of certain obligations under the Merger Agreement and which the Goldfield Board determines in its good faith judgement, after considering the advice of outside legal counsel and financial advisors and after considering all of the financial, legal, timing, regulatory and other aspects and risks of such Acquisition Proposal (including any break-up fee, expense reimbursement, conditions to consummation and financing terms) and the person making such Acquisition Proposal and after taking into account any change to the terms of the Merger Agreement offered by Parent in response to such Superior Proposal, that such Acquisition Proposal, (i) is reasonably capable of being consummated in accordance with its terms and (ii) would, if consummated, result in a transaction that is more favorable to Goldfields stockholders from a financial point of view than the Transactions.
Employee Benefits.
The Merger Agreement provides that for a period of one year immediately following the Effective Time, Parent will provide, or will cause to be provided, to each continuing employee of Goldfield and of each of Goldfields subsidiaries as of the Effective Time (other than continuing employees covered by a collective bargaining agreement) (i) base salary or base wages and short-term cash incentive compensation opportunities and discretionary bonus opportunities (other than equity-based and other long-term incentive compensation opportunities) that are no less favorable in the aggregate than those provided to such continuing employee as of the Effective Time, and (ii) health and welfare benefits and other employee benefits (other than severance payments and benefits and deferred compensation) that are substantially comparable in the aggregate to those provided to such continuing employee as of the Effective Time.
The provisions of the Merger Agreement described in this section are for the sole benefit of the parties to the Merger Agreement and nothing in the applicable section of the Merger Agreement, whether express or implied, creates any third party beneficiary or other rights in any other person, including without limitation, any current or former employee or any participant in any employee benefit plan or arrangement, or any dependent or
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beneficiary thereof, or any right to continued employment with Goldfield, the subsidiaries of Goldfield, Parent or the Surviving Corporation. Nothing in the applicable section of the Merger Agreement, whether express or implied, modifies, amends any employee benefit plan or limits the right of Goldfield, Parent, the Surviving Corporation or any of their respective affiliates to amend, terminate or otherwise modify any employee benefit plan or arrangement in accordance with its terms and applicable law.
Director and Officer Liability.
The Merger Agreement provides that for a period of six years from and after the Effective Time, Parent shall (and will cause the Surviving Corporation to) indemnify, defend and hold harmless, to the fullest extent permitted under applicable law (and shall advance expenses as incurred to the fullest extent permitted under applicable law, provided the person to whom expenses are advanced provides an undertaking to repay such advances if a court of competent jurisdiction determines in a final, nonappealable judgment that such person is not entitled to be indemnified hereunder), each present and former director and officer of Goldfield and its direct and indirect subsidiaries (each, an Indemnified Party) against any costs and expenses (including reasonable attorneys fees), judgments, settlements, fines, losses, claims, damages or liabilities (whether civil, criminal, administrative, investigative or other), arising out of or pertaining to matters existing or occurring prior to the Effective Time, including the Transactions.
The Merger Agreement also provides that, prior to the Effective Time, Goldfield shall use its reasonable best efforts to purchase a tail or runoff officers and directors liability insurance policy or policies in respect of acts or omissions occurring prior to the Effective Time, and covering each Indemnified Party on terms with respect to coverage, deductibles and amounts no less favorable than those of such policy currently in effect for a period of six years following the Effective Time, and at a price not to exceed 350% of the current annual premiums paid by Goldfield for such insurance. Parent will, and will cause the Surviving Corporation to, maintain such policies in full force and effect for their full term, and will continue to honor the obligations thereunder. If Goldfield fails to purchase such tail or runoff policy prior to Closing, then either (i) Parent may purchase such tail or runoff policy on behalf of Goldfield or the Surviving Corporation or (ii) the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, maintain an officers and directors liability insurance policy or policies in respect of acts or omissions occurring prior to the Effective Time covering the Indemnified Parties on terms with respect to each of coverage and amount no less favorable than those of such policies in effect for a period of six years after the Effective Time; provided further, that in satisfying this obligation, neither Parent nor the Surviving Corporation shall be obligated to pay annual premiums in excess of 350% of the current annual premiums paid by Goldfield for such insurance and if such premiums for such insurance would at any time exceed 350% of the current annual premiums paid by Goldfield for such insurance, then Parent or the Surviving Corporation shall cause to be maintained such policies of insurance described above that provide the maximum dollar amount of coverage available at an annual premium equal to 350% of the current annual premiums paid by Goldfield for such insurance.
The Merger Agreement also provides that from and after the Effective Time, Parent shall cause the Surviving Corporation to fulfill and honor in all respects the obligations of Goldfield and its subsidiaries pursuant to (i) each indemnification agreement made publicly available or made available to Parent or its representatives prior to the execution of the Merger Agreement that is in effect between Goldfield or any of its subsidiaries and any individual who at the Effective Time is, or at any time prior to the Effective Time was, a director or officer of Goldfield or of a Goldfield subsidiary; and (ii) any indemnification, advancement or exculpation provision set forth in the certificate of incorporation or bylaws or other organizational documents of Goldfield or any of its subsidiaries as in effect on the date of the Merger Agreement. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the certificate of incorporation and bylaws of the Surviving Corporation shall contain, and Parent shall cause the certificate of incorporation and bylaws of the Surviving Corporation to contain, provisions no less favorable with respect to indemnification, advancement of expenses and exculpation than are set forth in the certificate of incorporation and bylaws of Goldfield as in effect on the date of the Merger Agreement.
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In the event that Parent or the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and, in each such case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as applicable, shall assume the obligations concerning indemnification set forth in the provisions of the Merger Agreement described in this section.
Transaction Litigation.
The Merger Agreement provides that Goldfield is entitled to direct and control the defense of any litigation brought against Goldfield or its directors or officers relating to the Transactions (Transaction Litigation); provided, however, Goldfield must promptly notify Parent in writing of any such Transaction Litigation. Goldfield must (a) give Parent the right to review and comment on all material filings or responses to be made by Goldfield and shall discuss in advance any material discussions or communications proposed to be held by Goldfield with any third party in connection with any such Transaction Litigation (and Goldfield shall in good faith take any comments or feedback provided by Parent into account), and the opportunity to participate in the defense and settlement of, any such Transaction Litigation at Parents own expense and (b) if Parent does not exercise such right to participate (subject to Goldfields control right), keep Parent reasonably and promptly informed with respect to the status of such Transaction Litigation. No compromise or full or partial settlement of any Transaction Litigation shall be agreed to by Goldfield without Parents prior written consent.
Rule 14d-10 Matters.
The Merger Agreement provides that, prior to the consummation of the Offer, to the extent required, the compensation committee of the Goldfield Board (the Compensation Committee) will take such steps to cause each employment compensation, severance or other employee benefit arrangement (whether in existence prior to or after the date of the Merger Agreement) pursuant to which consideration is payable to any officer, director or employee who is a holder of any security of Goldfield to be approved by the Compensation Committee in accordance with the requirements of Rule 14d-10(d)(2) under the Exchange Act and the instructions thereto as an employment compensation, severance or other employee benefit arrangement within the meaning of Rule 14d-10(d)(2) under the Exchange Act and satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d) of the Exchange Act. Each member of the Compensation Committee is an independent director within the meaning of the requirements of Rule 14d-10(d) promulgated under the Exchange Act.
Takeover Laws.
The Merger Agreement provides that, if any control share acquisition, business combination, fair price, moratorium or other anti-takeover applicable law may become or is deemed or purports to be applicable to any Transaction, then each of Goldfield, Parent, Purchaser, and their respective boards of directors will use their respective reasonable best efforts to (i) take such actions with respect thereto as are necessary so that the Transactions may be consummated as promptly as practicable on the terms contemplated by the Merger Agreement and (ii) otherwise act to render such anti-takeover applicable law (or, in the case of Section 203 of the DGCL, the restrictions on business combinations provided therein) inapplicable to, or to minimize the effects of the foregoing on, the Transactions.
Delisting.
The Merger Agreement provides that, Parent will cause, and Goldfield will reasonably cooperate with Parent to cause, Goldfields securities to be de-listed from NYSE American and de-registered under the Exchange Act as promptly as practicable following the Effective Time.
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Financing Cooperation.
Goldfield has agreed it will, and will cause its subsidiaries to, use reasonable best efforts to cause their respective representatives, to provide to Parent, all reasonable cooperation reasonably requested by Parent and as necessary and customary to assist Parent in connection with the arrangement of any Debt Financing in connection with the transactions contemplated by the Merger Agreement, including to:
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promptly (and in any event, no later than five business days after the date of the Merger Agreement) provide Parent and its financing sources and their respective agents with Goldfields financial statements; |
(ii) |
participate in a reasonable number of lender meetings, presentations and sessions with prospective financing sources, and if reasonably requested by Parent, sessions with rating agencies, in each case at reasonable times and locations mutually agreed; |
(iii) |
assist with the preparation of materials for investor presentations, bank information memoranda, confidential information memoranda, marketing materials and similar documents required in connection with the Debt Financing and, if reasonably requested by Parent, rating agency materials; |
(iv) |
provide appropriate representations in connection with the preparation of financial statements and other financial data of Goldfield and direct Goldfields independent auditors to provide reasonable and customary assistance and cooperation in connection with the Debt Financing; |
(v) |
cooperate with the marketing efforts of Parent and its financing sources for any portion of the Debt Financing; |
(vi) |
facilitate the obtaining of guarantees and pledging of collateral in connection with the Debt Financing, including using commercially reasonable efforts to cause individuals to execute and deliver any customary documents as may be reasonably requested by Parent to facilitate the foregoing; |
(vii) |
provide, at least three business days prior to the closing of the Merger, to Parent and its financing sources all customary documentation and other information with respect to Goldfield and its subsidiaries, as is reasonably requested in writing by Parent at least ten business days prior to the closing date of the Merger that is required in connection with the Debt Financing by U.S. regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including the USA PATRIOT Act; |
(viii) |
use commercially reasonable efforts to cause individuals to take corporate action (subject to the occurrence of the closing) reasonably necessary to permit the completion of the Debt Financing; |
(ix) |
assist with the payoff of existing indebtedness of Goldfield and its subsidiaries and the release of related liens at the closing; and |
(x) |
to the extent applicable, provide customary authorization letters to the Parent and its financing sources authorizing the distribution of information to the financing sources and containing a representation to the financing sources that the public side versions of such documents, if any, do not include material non-public information about Goldfield, its subsidiaries or any of their respective securities. |
Neither Goldfield nor any of its subsidiaries would be required to take any action that would (i) reasonably be expected to conflict with, or result in any violation or breach of, or default under, any organizational documents of Goldfield or any of its subsidiaries, any material contract, or any applicable law, (ii) unreasonably interfere with the conduct of the business or operations of Goldfield or any of its subsidiaries, (iii) result in any officer, manager or director of Goldfield or any its subsidiaries incurring personal liability with respect to any matters relating to the Debt Financing or the approval thereof, (iv) require Goldfield, its subsidiaries or any of their respective affiliates to incur any liability or commit to any obligation that is not contingent upon the occurrence of the closing, (v) require providing access to or disclose information that Goldfield is advised by legal counsel would jeopardize any attorney-client privilege of or violate confidentiality requirements binding on, Goldfield or any of its subsidiaries (provided that, Goldfield and its subsidiaries shall reasonably cooperate in seeking alternative means to provide such information), or (vi) require any change to any fiscal period.
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Parent shall reimburse Goldfield for all reasonable out-of-pocket and documented expenses incurred in connection with the actions taken at Parents request to assist Parent in connection with the arrangement of any Debt Financing. Parent shall further indemnify Goldfield, it subsidiaries and their respective representatives for any losses incurred in connection with the arrangement of the Debt Financing and any information utilized in connection therewith, subject to customary exceptions for gross negligence, bad faith or willful and intentional misconduct.
Other Covenants.
The Merger Agreement contains other customary covenants, including, but not limited to, covenants relating to certain regulatory filings, public announcements, access to information and confidentiality.
Termination.
The Merger Agreement may be terminated and the Transactions may be abandoned at any time prior to the consummation of the Offer:
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by mutual written agreement of Goldfield and Parent; |
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by either Goldfield or Parent, if: |
(a) |
the Offer has not been consummated in accordance with the terms of the Merger Agreement on or before 11:59 p.m., Eastern Time, on February 19, 2021; provided, that, the right to terminate the Merger Agreement pursuant to the forgoing will not be available to any party whose material breach of any provision of the Merger Agreement has been a principal cause of, or resulted in, the failure of the Offer to be consummated by such time (the Nonconsummation Condition); or |
(b) |
any governmental authority having competent jurisdiction over any party to the Merger Agreement shall have issued a final, non-appealable order, or any applicable law or other legal restraint, injunction or prohibition shall be in effect, that makes consummation of the Offer or the Merger illegal or otherwise prohibited; or |
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by Parent, prior to the consummation of the Offer, if: |
(a) |
a Change in Recommendation has occurred or Goldfield or any of its subsidiaries has entered into any Alternative Acquisition Agreement or the Goldfield Board (or any committee thereof) has approved, recommended, declared advisable or authorized the execution of any Alternative Acquisition Agreement; or |
(b) |
Goldfield has breached any of its representations, warranties, covenants or other agreements contained in the Merger Agreement, which breach or failure to perform would give rise to the failure of the Representations Condition and Covenants Condition and is incapable of being cured by the Outside Date or, if capable of being cured in such time frame, has not been cured by Goldfield within 30 days after written notice has been given by Parent to Goldfield of such breach or failure to perform; provided, however, that Parent may not terminate the Merger Agreement pursuant to such provision of the Merger Agreement if, at the time such termination would otherwise take effect in accordance with the foregoing, Parent or Purchaser is in material breach of any provision of the Merger Agreement; or |
(c) |
if the Offer (as it may have been extended) expires as a result of the non-satisfaction of one or more Offer Conditions in a circumstance where Parent has no further obligation to extend the Offer; provided, however, that the right to terminate the Merger Agreement pursuant such provision of the Merger Agreement will not be available to Parent if its material breach of any provision of the Merger Agreement has been the primary cause of, or resulted in, the non-satisfaction of any Offer Conditions or the termination or withdrawal of the Offer pursuant to its terms without any Shares being purchased; or |
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by Goldfield, prior to the consummation of the Offer, if: |
(a) |
the Goldfield Board has determined that an Acquisition Proposal constitutes a Superior Proposal, Goldfield has complied with its obligations under the Merger Agreement to notify and engage with Parent with respect to the Superior Proposal as described in -Acquisition proposals; Change in Recommendation, Goldfield pays, or causes to be paid, to Parent the Goldfield Termination Fee (as defined below) prior to or concurrently with such termination and substantially concurrently with such termination, Goldfield enters into a definitive Alternative Acquisition Agreement in respect of such Superior Proposal; |
(b) |
Parent shall have breached or failed to perform any of its representations, warranties, covenants or other agreements contained in the Merger Agreement, which breach or failure to perform would have a Parent Material Adverse Effect and is incapable of being cured by the Outside Date or, if capable of being cured in such time frame, has not been cured by Parent within 30 days after written notice has been given by Goldfield to Parent of such breach or failure to perform; provided, however, that Goldfield may not terminate the Merger Agreement pursuant to such provision of the Merger Agreement if, at the time such termination would otherwise take effect in accordance with the foregoing, Goldfield is in material breach of any provision of the Merger Agreement; |
(c) |
Purchaser fails to commence the Offer by December 15, 2020; provided, however, that Goldfield may not terminate the Merger Agreement pursuant to such provision of the Merger Agreement if such failure to commence the Offer is principally caused by the material breach by Goldfield of any covenant or obligation of Goldfield set forth in the Merger Agreement; or |
(d) |
(i) Purchaser fails to consummate the Offer, (ii) all of the Offer Conditions have been satisfied or (to the extent permitted by applicable law) waived at the Offer Expiration Time, (iii) Goldfield has given Purchaser at least three business days prior written notice stating Goldfields intention to terminate, (iv) all of the Offer Conditions remain satisfied through the three business day period, and (v) the Offer Acceptance Time shall not have occurred by the end of such three business day period. |
The party desiring to terminate the Merger Agreement pursuant to the provisions described above (other than pursuant to the Nonconsummation Condition) will give written notice of such termination to each other party to the Merger Agreement and specify the applicable provision or provisions thereof pursuant to which such termination is being effected.
Effect of Termination.
If the Merger Agreement is validly terminated in accordance with its terms by either Goldfield or Purchaser, it will, subject to certain surviving provisions, become void and of no further force or effect and there will be no liability or obligation on the part of any party, provided, subject to the limitations described under -Goldfield Termination Fee and -Parent Termination Fee, no person will be relieved from liability for any willful and material breach of the Merger Agreement prior to the date of such termination. The Confidentiality Agreement (as defined below) shall not be affected by the termination of the Merger Agreement and shall continue in full force and effect in accordance with its terms.
Goldfield Termination Fee.
Goldfield shall pay (or cause to be paid to) Parent a fee in the amount of $5,654,000 (the Goldfield Termination Fee) if the Merger Agreement is validly terminated:
1. |
by Goldfield as a result of the Goldfield Board determining that an Acquisition Proposal constitutes a Superior Proposal and substantially concurrently with the termination of the Merger Agreement, Goldfield enters into a definitive Alternative Acquisition Agreement in respect of such Superior Proposal; |
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2. |
by Parent as a result of a Change in Recommendation or Goldfield entering into, or the Goldfield Board approving, any Alternative Acquisition Agreement; |
3. |
by Parent or Goldfield as a result of the Offer not being consummated by the Outside Date (provided that the terminating party shall not be in material breach of the Merger Agreement or a principal cause for the failure of the Offer to be consummated) if at such time the Merger Agreement was terminable by Goldfield pursuant to item 2 above; |
4. |
(a) (i) by Parent or Goldfield as a result of the Offer not being consummated by the Outside Date (provided that the terminating party shall not be in material breach of the Merger Agreement or a principal cause for the failure of the Offer to be consummated), (ii) by Parent as a result of Goldfield breaching its representations, warranties, covenants and other agreements, where such breach would give rise to the failure of the Representations Condition and the Covenants Condition and such breach cannot be cured within 30 days after written notice is provided by Parent to Goldfield, or (iii) by Parent as a result of the Offer expiring as a result of the non-satisfaction of one or more Offer Conditions in a circumstance where Parent has no further obligation to extend the Offer (provided that Parent shall not be in material breach of the Merger Agreement or a principal cause for the failure of the Offer to be consummated), (b) any Acquisition Proposal shall have been publicly made to the stockholders of Goldfield or otherwise have been announced or become publicly known prior to termination, and (c) within 12 months after such termination, Goldfield or any of its subsidiaries enters into a definitive agreement with respect to or consummates an Acquisition Proposal, subject to certain qualifications and conditions. |
If Parent receives payment from Goldfield of the Goldfield Termination Fee, Parents right to receive payment from Goldfield of the Goldfield Termination Fee shall be the sole and exclusive remedy of any of Parent, Purchaser or any of their respective affiliates or representatives against Goldfield and Goldfield Related Parties for all losses and damages suffered as a result of the failure of the Transactions to be consummated; provided that in circumstances in which the Goldfield Termination Fee is not payable, termination of the Merger Agreement shall not relieve Goldfield from liability for, and Parent the Purchaser may seek recourse with respect to, any willful breach of the Merger Agreement prior to such termination. Goldfield Related Parties means the former, current or future equity holders, controlling persons, directors, officers, employees, agents, representatives or affiliates of Goldfield or its subsidiaries or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate, representative or agent of any of the foregoing.
Parent Termination Fee.
Parent shall pay (or cause to be paid to) Goldfield a fee in the amount of $10,439,000 (the Parent Termination Fee) if the Merger Agreement is validly terminated:
1. |
by Goldfield as a result of Parent breaching its representations, warranties, covenants and other agreements, where such breach would have a Parent Material Adverse Effect and such breach cannot be cured by the Outside Date, or if capable of being cured in such time frame, is not cured within 30 days after written notice is provided by Goldfield to Parent; |
2. |
by Goldfield as a result of Purchaser failing to consummate the Offer when all of the Offer Conditions have been satisfied or (to the extent permitted by applicable law) waived at the Offer Expiration Time, and Goldfield has given Purchaser at least three business days prior written notice stating Goldfields intention to terminate, all of the Offer Conditions remain satisfied through the three business day period, and the Offer Acceptance Time shall not have occurred by the end of such three business day period; |
3. |
by Parent or Goldfield as a result of the Offer not being consummated by the Outside Date (provided that the terminating party shall not be in material breach of the Merger Agreement or a principal cause |
53
for the failure of the Offer to be consummated) if at such time the Merger Agreement was terminable by Goldfield pursuant to item 1 or item 2 above. |
Goldfields right to terminate the Merger Agreement and receive payment of the Parent Termination Fee, together with (x) certain fees, costs and expenses in connection with any proceeding to enforce payment of the Parent Termination Fee and (y) reasonable out-of-pocket and documented expenses incurred in connection actions taken to support the Debt Financing, shall constitute the sole and exclusive remedy of Goldfield and the Goldfield Related Parties against Parent, Purchaser, First Reserve and their respective affiliates, the financing sources and any other Parent Related Parties for all losses and damages in respect of the Merger Agreement or the transactions contemplated by the Merger Agreement or any breach of any representation, warranty, covenant or agreement to be made in connection with the Merger Agreement, and upon payment of the Parent Termination Fee, together with all amounts identified in (x) and (y) above, none of the Parent Related Parties shall (i) shall have any further liability or obligation, or (ii) seek to recover any other damages or seek any other remedy, and (iii) in no event shall Parent or Purchaser be subject to monetary damages in excess of an aggregate amount equal to the Parent Termination Fee, plus any amounts identified in (x) and (y) above. While Goldfield may pursue both a grant of specific performance of the type contemplated by the Merger Agreement and the Equity Commitment Letter and the payment of the Parent Termination Fee, as the case may be, under no circumstances shall Goldfield be permitted or entitled to receive both a grant of specific performance that results in the consummation of the Offer and payment of the Parent Termination Fee. Parent Related Parties means the former, current or future equity holders, controlling persons, directors, officers, employees, agents, affiliates, members, managers or general or limited partners of Parent or Purchaser or any former, current or future stockholder, controlling person, director, officer, employee, general or limited partner, member, manager, affiliate or agent of any of the foregoing.
Expenses.
Except as otherwise provided in the Merger Agreement, all costs and expenses incurred by the parties to the Merger Agreement will be paid by the party incurring such cost or expense, provided that Parent will be responsible for costs and expenses related to filings to obtain regulatory approvals and certain taxes and fees imposed with the transfer of Shares pursuant to the Offer or the Merger.
Specific Performance; Remedies.
The Merger Agreement provides that irreparable damage for which monetary damages, even if available, would not be an adequate remedy, would occur and that the parties to the Merger Agreement would not have any adequate remedy at law in the event that any of the provisions of the Merger Agreement were not performed in accordance with their specific terms or were otherwise breached. Under the terms of the Merger Agreement, the parties agreed that the parties will be entitled to an injunction or injunctions, specific performance, or other equitable relief, to prevent breaches or threatened or anticipated breaches of the Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement, without proof of damages or otherwise.
The Merger Agreement further provides that, prior to the termination of the Merger Agreement, Goldfield may, subject to the terms of the Merger Agreement, seek an injunction, specific performance or other equitable relief to cause Purchaser to enforce the terms of the Equity Commitment Letter (solely in its capacity as a third party beneficiary under the Equity Commitment Letter) and Parents or Purchasers respective obligations to consummate the Offer and the Merger in accordance with the terms and subject to the conditions of the Merger Agreement if:
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all Offer Conditions and conditions to consummate the Merger set forth in the Merger Agreement, have been satisfied (other than those conditions that by their nature are to be satisfied at the Effective Time or the closing of the Merger, each of which is capable of being satisfied at such time); |
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Goldfield has irrevocably confirmed in writing to Parent that it is prepared to consummate the closing if Parent and/or Purchaser performs their respective obligations to consummate the Offer and the Merger; and |
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Parent fails to consummate the Offer and the closing by the date that is three business days after the later of (x) the first date upon which Parent would have been required to consummate the Offer and (y) the date of delivery of such notice, and at all times during such three business day period Goldfield stood ready, willing and able to consummate the closing and the other Transactions. |
No recourse and Waiver of Certain Claims.
Pursuant to the Merger Agreement, each party agrees that any claim, action, suit or other legal proceeding based upon, arising out of, or related to the Merger Agreement, or the negotiation, execution or performance of the Merger Agreement, may only be brought against the entities that are expressly named as parties to the Merger Agreement and then only with respect to the specific obligations set forth in the Merger Agreement with respect to such party. The Merger Agreement provides that no past, present or future director, officer, employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, affiliate, agent, attorney or other representative of any party to the Merger Agreement or any of their successors or permitted assigns or any direct or indirect director, officer, employee, incorporator, manager, member, general or limited partner, stockholder, equityholder, controlling person, affiliate, agent, attorney, Representative, successor or permitted assign of any of the foregoing (each, a Non-Recourse Party), will have any liability for any obligations or liabilities of any party under the Merger Agreement or for any claim, action or proceeding based on, in respect of or by reason of the transactions contemplated by the Merger Agreement or in respect of any written or oral representations made or alleged to be made in connection therewith (other than pursuant to the express terms and limitations set forth in the Limited Guaranty and the Equity Commitment Letter). The Merger Agreement further provides that, without limiting the rights of Goldfield against Parent, in no event will Goldfield or any of its affiliates seek to enforce the Merger Agreement against, make any claims for breach of the Merger Agreement against, or seek to recover monetary damages from, any Non-Recourse Party (other than pursuant to the express terms and limitations set forth in the Limited Guaranty and the Equity Commitment Letter).
The Merger Agreement further provides that, subject to any definitive agreements entered into in connection with the Debt Financing, (i) no financing source will have any liability to Goldfield or any of its affiliates or any other person relating to or arising out of the Transactions, the Merger Agreement or the Debt Financing, or any transactions contemplated by, or document related to, the foregoing (including any willful breach thereof, or the failure of the transactions contemplated thereby to be consummated), and (ii) none of Goldfield or any of its affiliates shall have any rights or claims whatsoever against any of the financing sources under the Merger Agreement or in connection with the Debt Financing, or otherwise in respect of the Transactions or any of the other transactions contemplated by any of the foregoing.
Assignment.
Neither the Merger Agreement nor any of the rights, interests or obligations thereunder may be assigned by any party to the Merger Agreement without the prior written consent of the other parties to the Merger Agreement; provided, that, Parent and Purchaser may assign all or any of their rights and obligations hereunder to any affiliate so long as (a) Parent and Purchaser continue to remain liable for all of such rights and obligations as if no such assignment had occurred, and (b) such assignment in no way causes a material delay or materially impairs the ability of Parent and Purchaser to consummate the Transactions; and provided, further, that Parent and Purchaser may, without the prior written consent of the other parties, grant a security interest in, and collaterally assign, any of their rights under the Merger Agreement to the financing sources in connection with the Debt Financing.
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Amendment.
The Merger Agreement may be amended by written agreement of Goldfield, Parent and the Purchaser, at any time prior to the consummation of the Offer. No amendment may be made to the financing provisions of the Merger Agreement in a manner that would be materially adverse to the financing sources without the prior consent of the financing sources.
Governing Law.
The Merger Agreement is governed by Delaware law.
Confidentiality Agreement.
On March 2, 2020, Goldfield and First Reserve XIV Advisors, L.L.C. (First Reserve Advisors) entered into a confidentiality agreement (the Confidentiality Agreement). As a condition to being furnished Confidential Information (as defined in the Confidentiality Agreement), First Reserve Advisors agreed that such Confidential Information will be kept by it and its representatives confidential and will be used solely for the purposes of evaluating, negotiating or advising with respect to a possible transaction involving Goldfield. The Confidentiality Agreement contains a customary standstill provision with a term of 12 months that terminates upon the earlier of (i) the public announcement by Goldfield that its Board has approved, or that Goldfield or its subsidiaries has entered into, a definitive agreement providing for a business combination or sale transaction involving the acquisition of more than 50% of the voting securities of Goldfield, (ii) any other person or group having consummated an acquisition of more than 50% of the outstanding equity securities of Goldfield or its principal subsidiaries, or (iii) the public announcement by any other person or group of (x) the commencement of a tender offer for shares of Goldfield if the Board recommends or is neutral to such tender offer, or (y) a proxy contest with respect to a tender offer for shares of Goldfield pursuant to which stockholders elect directors who were not nominated by the Board and such elected directors represent a majority of the Board. The Confidentiality Agreement also contains a customary employee non-solicit provision with a term of 18 months covering certain specified employees identified therein.
The foregoing summary of the Confidentiality Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Confidentiality Agreement, which is filed as Exhibit (d)(2) to the Schedule TO incorporated herein by reference.
Exclusivity Agreement.
On November 11, 2020, First Reserve Advisors and Goldfield entered into an exclusivity agreement (the Exclusivity Agreement), pursuant to which, among other things, Goldfield agreed to a period of exclusive negotiation with First Reserve commencing on the date of the Exclusivity Agreement and ending at 11:59 p.m. (New York City time) on November 18, 2020 (the Exclusivity Period). The Exclusivity Agreement further provided that if the parties continued to negotiate in good faith towards a transaction, the Exclusivity Period would be automatically extended to 11:59 p.m. (New York City time) on November 25, 2020 (the Extended Exclusivity Period). Immediately following the expiration of the Exclusivity Period, the Exclusivity Period was automatically extended for the Extended Exclusivity Period.
The Exclusivity Agreement also provided that Goldfield would immediately cease and cause to be terminated any discussions or negotiations with any person that may be ongoing with respect to an acquisition proposal and would immediately terminate all physical and electronic dataroom access previously granted to any such person, its subsidiaries or representatives. Further, during the Exclusivity Period and Extended Exclusivity Period, as applicable, Goldfield would not (i) solicit, initiate, knowingly encourage or knowingly facilitate any acquisition proposal, (ii) engage in, continue or otherwise participate in discussions or negotiations regarding, or furnish to any person any non-public information concerning Goldfield or any of its subsidiaries relating to or
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that could reasonably be expected to lead to any acquisition proposal, except to notify such person that Goldfield is not permitted to respond to any acquisition proposal, or (iii) recommend, enter into or execute any agreement with respect to any acquisition proposal. Upon the receipt of any acquisition proposal, or any inquiries or offers that could reasonably be expected to lead to an acquisition proposal, Goldfield agreed to promptly (and in any event within 24 hours) notify First Reserve Advisors of such acquisition proposal and the identity of the person or persons making such acquisition proposal.
The foregoing summary of the Exclusivity Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Exclusivity Agreement, which is filed as Exhibit (d)(5) to the Schedule TO incorporated herein by reference.
Tender and Support Agreement.
Concurrently with the execution of the Merger Agreement, the estate of former CEO John H. Sottile, in its capacity as a stockholder of Goldfield (the Supporting Stockholder), entered into a Tender and Support Agreement with Parent and Purchaser (the Tender and Support Agreement), pursuant to which it has agreed, among other things, and subject to the terms and conditions of the Tender and Support Agreement, to tender all of its Shares into the Offer, which, as of November 23, 2020, in the aggregate represents approximately 8.5% of the outstanding Shares of Goldfield. The Tender and Support Agreement terminates upon the occurrence of certain events, including the termination of the Merger Agreement in accordance with its terms.
Subject to the terms and conditions of the Tender and Support Agreement, the Supporting Stockholder agrees, among other things, to validly tender all of its Shares after commencement of the Offer, and in any event no later than the tenth (10th) business day after the commencement of the Offer, and to vote against any action, agreement or transaction involving Goldfield that can impede, interfere with or prevent the consummation of the Merger. In addition, the Supporting Stockholder has agreed to, if necessary, vote its shares: (i) for the adoption of the Merger Agreement, in the event any vote or consent of the stockholders of Goldfield is required to adopt the Merger Agreement, approve the Merger or otherwise approve any of the transaction contemplated in the Merger Agreement; (ii) against any action or agreement that is intended or would reasonably be expected to result in the failure of any of the Offer Conditions to be satisfied; (iii) against any Acquisition Proposal or Alternative Acquisition Agreement (as defined in the Merger Agreement); (iv) against any other action, agreement or transaction involving Goldfield that is intended, or would reasonably be expected, to impede, interfere with or prevent the consummation of the Offer or the Merger or the other transactions contemplated by the Merger Agreement; and (v) against any commitment or agreement to take any action inconsistent with any of the preceding clauses (i) through (iv).
The Tender and Support Agreement will terminate upon the earliest to occur of (a) the termination of the Merger Agreement in accordance with its terms, (b) the Effective Time, (c) the delivery of written notice of termination by the Supporting Stockholder to Parent and Purchaser following any amendment, modification, change or waiver to any provision of the Merger Agreement that, without the Supporting Stockholders prior written consent, decreases the amount or changes the form of the cash consideration (other than adjustments in accordance with the terms of the Merger Agreement), and (d) the termination of the Offer or the Offer Expiration Time, in each case, without acceptance for payment of the subject Shares pursuant to the Offer (provided that the termination right only applies so long as the Supporting Stockholder is not in breach of the Tender and Support Agreement).
The foregoing summary of the Tender and Support Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Tender and Support Agreement, which is filed as Exhibit (d)(6) to the Schedule TO incorporated herein by reference.
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Equity Commitment Letter and Limited Guaranty.
The descriptions of the Equity Commitment Letter and the Limited Guaranty included in Section 9 Source and Amount of Funds Equity Financing and Limited Guaranty are incorporated into this Section 11 by reference.
12. |
Purpose of the Offer; Plans for Goldfield. |
Purpose of the Offer. The Offer is being made pursuant to the Merger Agreement. The purpose of the Offer is to acquire control of, and the entire equity interest in, Goldfield. The Offer, as the first step in the acquisition of Goldfield, is intended to facilitate the acquisition of all outstanding Shares. After the Offer Acceptance Time, the Purchaser intends to consummate the Merger as promptly as practicable, subject to the satisfaction of certain conditions. The Merger Agreement provides, among other things, that the Purchaser will be merged into Goldfield and that upon consummation of the Merger, the surviving corporation will become a wholly owned subsidiary of Parent.
Merger Without a Meeting. If the Offer is consummated, we do not anticipate seeking the approval of Goldfields remaining public stockholders before effecting the Merger. Section 251(h) of the DGCL provides that following consummation of a successful tender offer for a public corporation, and subject to certain statutory provisions, if the acquirer holds at least the amount of shares of each class of stock of the target corporation that would otherwise be required to approve a merger for the target corporation, and the other stockholders receive the same consideration for their stock in the merger as was payable in the tender offer, then the acquirer can effect a merger without the action of the other stockholders of the target corporation. Accordingly, if we consummate the Offer, we intend to effect the closing of the Merger without a vote of the stockholders of Goldfield in accordance with Section 251(h) of the DGCL.
Plans for Goldfield.
We expect that, following consummation of the Merger and the other Transactions, the operations of Goldfield, the Surviving Corporation, will be conducted substantially as they currently are being conducted. We do not have any current intentions, plans or proposals to cause any material changes in the Surviving Corporations business, other than in connection with Goldfields current strategic planning.
Nevertheless, the management and/or the board of directors of Parent or the Surviving Corporation may initiate a review of the Surviving Corporation to determine what changes, if any, would be desirable following the Offer and the Merger to enhance the business and operations of the Surviving Corporation and may cause the Surviving Corporation to engage in certain extraordinary corporate transactions, such as reorganizations, mergers or sales or purchases of assets, if the management and/or board of directors of Parent or the Surviving Corporation decide that such transactions are in the best interest of Parent or the Surviving Corporation upon such review.
13. |
Certain Effects of the Offer. |
Market for the Shares. If the Offer is successful, there will be no market for the Shares because Parent and the Purchaser intend to consummate the Merger at the Effective Time.
Stock Quotation. The Shares are currently listed on the NYSE American and trade under the symbol GV. Immediately following the consummation of the Merger (which is expected to occur as soon as practicable following the Offer Acceptance Time), the Shares will no longer meet the requirements for continued listing on the NYSE American because the only stockholder will be Parent. Immediately following the consummation of the Merger, we intend and will cause Goldfield to de-list the Shares from the NYSE American.
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Exchange Act Registration. The Shares currently are registered under the Exchange Act. The purchase of Shares pursuant to the Offer may result in such Shares becoming eligible for deregistration under the Exchange Act. Registration of Shares may be terminated by Goldfield upon application to the SEC if the outstanding Shares are not listed on a national securities exchange and if there are fewer than 300 holders of record of Shares.
We intend to seek to cause Goldfield to apply for termination of registration of the Shares as soon as possible after consummation of the Offer if the requirements for termination of registration are met. Termination of registration of the Shares under the Exchange Act would reduce the information required to be furnished by Goldfield to its stockholders and to the SEC and would make certain provisions of the Exchange Act (such as the short-swing profit recovery provisions of Section 16(b), the requirement of furnishing a proxy statement or information statement in connection with stockholders meetings or actions in lieu of a stockholders meeting pursuant to Sections 14(a) and 14(c) of the Exchange Act and the related requirement of furnishing an annual report to stockholders) no longer applicable with respect to the Shares. In addition, if the Shares are no longer registered under the Exchange Act, the requirements of Rule 13e-3 with respect to going private transactions would no longer be applicable to Goldfield. Furthermore, the ability of affiliates of Goldfield and persons holding restricted securities of Goldfield to dispose of such securities pursuant to Rule 144 under the U.S. Securities Act of 1933, as amended, may be impaired or eliminated. If registration of the Shares under the Exchange Act was terminated, the Shares would no longer be eligible for continued inclusion on the Federal Reserve Boards list of margin securities or eligible for stock exchange listing.
If registration of the Shares is not terminated prior to the Merger, then the registration of the Shares under the Exchange Act will be terminated following completion of the Merger.
Margin Regulations. The Shares are currently margin securities under the regulations of the Board of Governors of the Federal Reserve System (the Federal Reserve Board), which has the effect, among other things, of allowing brokers to extend credit using such Shares as collateral. Depending upon factors similar to those described above regarding listing and market quotations, following the Offer, the Shares may no longer constitute margin securities for purposes of the margin regulations of the Federal Reserve Board, in which event the Shares would be ineligible as collateral for margin loans made by brokers.
14. |
Dividends and Distributions. |
Goldfield has paid no cash dividends on its common stock since 1933.
As discussed in Section 11 The Merger Agreement; Other Agreements, the Merger Agreement provides that from the date of the Merger Agreement to the Effective Time, without the prior written consent of Parent, Goldfield will not (a) establish a record date for, declare, accrue, set aside or pay any dividend or make any other distribution on or in respect of (whether in cash, stock, property or otherwise) Goldfields or any subsidiary of Goldfields capital stock or other securities (other than dividends to Goldfield or from one of Goldfields wholly owned subsidiaries).
15. |
Certain Conditions of the Offer. |
Notwithstanding any other provision of the Offer or the Merger Agreement, subject to any applicable rules and regulations of the SEC, the Purchaser will not be required to, and Parent will not be required to cause the Purchaser to, accept for payment or pay for any Shares validly tendered and not withdrawn pursuant to the Offer, if as of the Expiration Date of the Offer, any of the following conditions (the Offer Conditions) have not been satisfied or, to the extent permitted, waived in writing by Parent:
(i) |
the number of Shares validly tendered and received (as defined in Section 251(h)(6) of the DGCL) in the Offer and not validly withdrawn prior to the Offer Expiration Time represent (together with any |
59
Shares owned by Parent and its affiliates and excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received (as such term is defined in Section 251(h)(6)(f) of the DGCL)) at least one share more than one-half of the number of the Shares outstanding at the first time, irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer Acceptance Time (such condition, the Minimum Condition); |
(ii) |
any waiting period (or any extension thereof) under the HSR Act applicable to the Transactions shall have expired or been terminated (such condition, the Regulatory Condition); |
(iii) |
no governmental authority having jurisdiction over any party to the Merger Agreement has issued any order, nor any applicable law or other legal restraint, injunction or prohibition is in effect, that makes consummation of the Offer, the acquisition of Shares by Parent or Purchaser, the Merger or the other Transactions illegal or otherwise prohibited (such condition, the Restraint Condition); |
(iv) |
since the date of the Merger Agreement, there has not been any Effect that has had or would reasonably be expected to have a Company Material Adverse Effect (as defined in the Merger Agreement and described in Section 11 The Merger Agreement; Other Agreements of the Offer to Purchase) (such condition, the MAE Condition); |
(v) |
the accuracy of Goldfields representations and warranties contained in the Merger Agreement (subject to de minimis, materiality and Company Material Adverse Effect (as defined in the Merger Agreement and described in Section 11 The Merger Agreement; Other Agreements) qualifiers) (such condition, the Representations Condition); |
(vi) |
Goldfield having complied in all material respects with each of the covenants, obligations and agreements it is required to comply with or perform at or prior to the Effective Time (such condition, the Covenants Condition); |
(vii) |
Parent and Purchaser having received a certificate of Goldfield, signed by an officer of Goldfield, dated the date on which the Offer expires certifying that the MAE Condition, the Representations Condition and the Covenants Condition have been satisfied (the Compliance Certificate Condition); |
(viii) |
the Merger Agreement having not been terminated in accordance with its terms (such condition, the Termination Condition); and |
(ix) |
the occurrence of January 29, 2021 (the Inside Date) (such condition, the Inside Date Condition). |
The foregoing conditions are for the sole benefit of Parent and the Purchaser and, subject to the terms and conditions of the Merger Agreement and applicable law, may be waived by Parent and the Purchaser, in whole or in part at any time and from time to time in their sole discretion, in each case subject to the terms of the Merger Agreement and to the extent permitted by applicable law. The failure by Parent, the Purchaser of any other affiliate of Parent at any time to exercise any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right that may be asserted at any time and from time to time, subject to the applicable rules and regulations of the SEC.
16. |
Certain Legal Matters; Regulatory Approvals. |
General. Except as described in this Offer to Purchase, the Purchaser is not aware of any pending legal proceeding relating to the Offer. Except as described in this Section 16, based on its examination of publicly available information filed by Goldfield with the SEC and other publicly available information concerning Goldfield, the Purchaser is not aware of any governmental license or regulatory permit that appears to be material to Goldfields business that might be adversely affected by the Purchasers acquisition of Shares as contemplated herein or of any approval or other action by any governmental, administrative or regulatory authority or agency, domestic or foreign, that would be required for the acquisition or ownership of Shares by the Purchaser or Parent as contemplated herein. Should any such approval or other action be required, the Purchaser currently contemplates that, except as described below under State Takeover Laws, such approval or other action will be
60
sought. While the Purchaser does not currently intend to delay acceptance for payment of Shares tendered pursuant to the Offer pending the outcome of any such matter, there can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that if such approvals were not obtained or such other actions were not taken, adverse consequences might not result to Goldfields business, or certain parts of Goldfields business might not have to be disposed of, any of which could cause the Purchaser to elect to terminate the Offer without the purchase of Shares thereunder under certain conditions. See Section 15 Certain Conditions of the Offer.
State Takeover Laws. A number of states (including Delaware, where Goldfield is incorporated) have adopted takeover laws and regulations which purport, to varying degrees, to be applicable to attempts to acquire securities of corporations which are incorporated in such states or which have substantial assets, stockholders, principal executive offices or principal places of business therein.
In general, Section 203 of the DGCL prevents a Delaware corporation from engaging in a business combination (defined to include mergers and certain other actions) with an interested stockholder (including a person who owns or has the right to acquire 15% or more of a corporations outstanding voting stock) for a period of three years following the time such person became an interested stockholder unless, among other things, the business combination is approved by the board of directors of such corporation before such person became an interested stockholder. The Goldfield Board has unanimously approved the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, for purposes of Section 203 of the DGCL.
A number of states have adopted laws and regulations applicable to attempts to acquire securities of corporations that are incorporated, or have substantial assets, stockholders, principal executive offices or principal places of business, or whose business operations otherwise have substantial economic effects, in such states. In 1982, in Edgar v. MITE Corp., the Supreme Court of the United States invalidated on constitutional grounds the Illinois Business Takeover Statute which, as a matter of state securities law, made takeovers of corporations meeting certain requirements more difficult. However, in 1987, in CTS Corp. v. Dynamics Corp. of America, the Supreme Court held that the State of Indiana could, as a matter of corporate law, constitutionally disqualify a potential acquiror from voting shares of a target corporation without the prior approval of the remaining stockholders where, among other things, the corporation is incorporated, and has a substantial number of stockholders, in the state. The state law before the Supreme Court was by its terms applicable only to corporations that had a substantial number of stockholders in the state and were incorporated there. Subsequently, in TLX Acquisition Corp. v. Telex Corp., a U.S. federal district court in Oklahoma ruled that the Oklahoma statutes were unconstitutional as applied to corporations incorporated outside Oklahoma in that they would subject such corporations to inconsistent regulations. Similarly, in Tyson Foods, Inc. v. McReynolds, a U.S. federal district court in Tennessee ruled that four Tennessee takeover statutes were unconstitutional as applied to corporations incorporated outside Tennessee. This decision was affirmed by the United States Court of Appeals for the Sixth Circuit. In December 1988, a U.S. federal district court in Florida held in Grand Metropolitan PLC v. Butterworth that the provisions of the Florida Affiliated Transactions Act and the Florida Control Share Acquisition Act were unconstitutional as applied to corporations incorporated outside of Florida.
Goldfield, directly or through subsidiaries, conducts business in a number of states throughout the United States, some of which have enacted takeover laws. We do not know whether any of these laws will, by their terms, apply to the Offer or the Merger and have not attempted to comply with any such laws. Should any person seek to apply any state takeover law, we will take such action as then appears desirable, which may include challenging the validity or applicability of any such statute in appropriate court proceedings. In the event any person asserts that the takeover laws of any state are applicable to the Offer or the Merger, and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, we may be required to file certain information with, or receive approvals from, the relevant state authorities. In addition, if enjoined, we may be unable to accept for payment any Shares tendered pursuant to the Offer, or be delayed in continuing or consummating the Offer and the Merger. In such case, we may not be obligated to accept for payment any Shares tendered in the Offer. See Section 15 Certain Conditions of the Offer.
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Antitrust Compliance. Under the HSR Act, and the related rules and regulations that have been issued by the FTC, certain acquisition transactions may not be consummated until required information and documentary material has been furnished for review by the FTC and Antitrust Division of the Department of Justice (the Antitrust Division), and certain waiting period requirements have been satisfied. These requirements apply to the Purchasers acquisition of Shares in the Offer and the Merger.
Under the HSR Act, the purchase of Shares in the Offer may not be completed until the expiration of a 15 calendar day waiting period which begins when Purchaser files a Pre-merger Notification and Report Form under the HSR Act with the FTC and the Antitrust Division, unless such waiting period is earlier terminated by the FTC and the Antitrust Division. If the end of the 15 calendar day waiting period is set to fall on a federal holiday or weekend day, the waiting period is automatically extended until 11:59 P.M., New York City time, the next business day. Purchaser and Goldfield will file a Pre-merger Notification and Report Form under the HSR Act with the FTC and the Antitrust Division in connection with the purchase of Shares in the Offer and the Merger no later than December 8, 2020, and the required waiting period with respect to the Offer and the Merger will expire at 11:59 P.M., New York City Time, on December 23, 2020, unless earlier terminated by the FTC and the Antitrust Division, or if Purchaser withdraws its HSR filing under 16 C.F.R. §803.12 or if Purchaser or Goldfield receives a formal request for additional information or documentary material prior to that time (referred to as a Second Request). If prior to the expiration or termination of this waiting period either the FTC or the Antitrust Division issues a Second Request, the waiting period with respect to the Offer and the Merger would be extended for an additional period of up to 10 calendar days following the date of Purchasers or Goldfields (as applicable) substantial compliance with the Second Request. Only one extension of the waiting period pursuant to a Second Request is authorized by the HSR Act rules. After that time, absent Purchasers and Goldfields agreement, they can be prevented from closing only by court order. The FTC or the Antitrust Division may terminate the additional 10 calendar day waiting period before its expiration. In practice, complying with a Second Request can take a significant period of time. If the HSR Act waiting period expired or was terminated, completion of the Merger would not require an additional filing under the HSR Act if the Purchaser owns 50% or more of the outstanding Shares at the time of the Merger or if the Merger occurs within one year after the HSR Act waiting period applicable to the Transactions expired or was terminated.
At any time before or after Purchasers acquisition of Shares pursuant to the Offer, the Antitrust Division or the FTC could take such action under the antitrust laws as either deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares pursuant to the Offer, or seeking the divestiture of Shares acquired by Purchaser or the divestiture of substantial assets of Goldfield or its subsidiaries or Purchaser or its subsidiaries. State attorneys general may also bring legal action under both state and Federal antitrust laws, as applicable. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, what the result of such challenge will be.
17. |
Appraisal Rights. |
No appraisal rights are available to the holders of Shares in connection with the Offer. However, if the Merger takes place pursuant to Section 251(h) of the DGCL stockholders who have not tendered their Shares pursuant to the Offer and who comply with the applicable legal requirements will have appraisal rights under Section 262 of the DGCL. If you choose to exercise your appraisal rights in connection with the Merger and you comply with the applicable legal requirements under the DGCL, you will be entitled to payment for your Shares based on a judicial determination of the fair value of your Shares, together with interest, as determined by the Delaware Court of Chancery. This value may be the same, more or less than the price that the Purchaser is offering to pay you in the Offer and the Merger. Moreover, the Purchaser may argue in an appraisal proceeding that, for purposes of such a proceeding, the fair value of such Shares is less than the price paid in the Offer and the Merger.
Under Section 262 of the DGCL, where a merger is approved under Section 251(h) of the DGCL, either a constituent corporation before the effective date of the merger, or the surviving corporation within ten days
62
thereafter, shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of Section 262. The Schedule 14D-9 constitutes the formal notice of appraisal rights under Section 262 of the DGCL. Any holder of Shares who wishes to exercise such appraisal rights or who wishes to preserve his, her or its right to do so, should review the discussion of appraisal rights in the Schedule 14D-9 as well as Section 262 of the DGCL, attached as Annex B to the Schedule 14D-9, carefully because failure to timely and properly comply with the procedures specified may result in the loss of appraisal rights under the DGCL.
Any stockholder wishing to exercise appraisal rights is urged to consult legal counsel before attempting to exercise such rights.
As described more fully in the Schedule 14D-9, if a stockholder elects to exercise appraisal rights under Section 262 of the DGCL with respect to Shares held immediately prior to the Effective Time, such stockholder must do all of the following:
|
within the later of the consummation of the Offer, which shall occur on the date on which acceptance and payment for Shares occurs, and twenty days after the date of mailing of the notice of appraisal rights in the Schedule 14D-9 (which date of mailing is December 1, 2020), deliver to Goldfield at the address indicated below, a demand in writing for appraisal of such Shares, which demand must reasonably inform Goldfield of the identity of the stockholder and that the stockholder is demanding appraisal; |
|
not tender such Shares in the Offer; and |
|
continuously hold of record such Shares from the date on which the written demand for appraisal is made through the Effective Time. |
The foregoing summary of the rights of Goldfields stockholders to seek appraisal rights under Delaware law is qualified in its entirety by reference to Section 262 of the DGCL. The preservation and proper exercise of appraisal rights requires strict adherence to the applicable provisions of the DGCL. Failure to fully and precisely follow the steps required by Section 262 of the DGCL for the perfection of appraisal rights may result in the loss of those rights. A copy of Section 262 of the DGCL is included as Annex B to the Schedule 14D-9.
Appraisal rights cannot be exercised at this time. The information provided above is for informational purposes only with respect to your alternatives if the Merger is completed. If you tender your Shares in the Offer, you will not be entitled to exercise appraisal rights with respect to your Shares but, instead, upon the terms and subject to the conditions to the Offer, you will receive the Offer Price for your Shares.
18. |
Fees and Expenses. |
Parent and the Purchaser have retained Innisfree M&A Incorporated to be the Information Agent and American Stock Transfer & Trust Company, LLC to be the Depositary and Paying Agent in connection with the Offer. The Information Agent may contact holders of Shares by mail, telephone, telecopy and personal interview and may request brokers, bankers and other nominees to forward materials relating to the Offer to beneficial owners of Shares.
The Information Agent and the Depositary and Paying Agent each will receive customary compensation for their respective services in connection with the Offer, will be reimbursed for customary expenses and will be indemnified against certain liabilities and expenses in connection therewith, including certain liabilities under federal securities laws.
Neither Parent nor the Purchaser will pay any fees or commissions to any broker or dealer or to any other person (other than to the Depositary and Paying Agent and the Information Agent) in connection with the
63
solicitation of tenders of Shares pursuant to the Offer. Brokers, bankers and other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding offering materials to their customers.
19. |
Miscellaneous |
The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any state in which the making of the Offer or the acceptance thereof would not be in compliance with the laws of such state. However, the Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer in any such state and to extend the Offer to holders of Shares in such state.
No person has been authorized to give any information or to make any representation on behalf of Parent or the Purchaser not contained herein or in the Letter of Transmittal and, if given or made, such information or representation must not be relied upon as having been authorized. Neither delivery of this Offer to Purchase nor any purchase pursuant to the Offer will, under any circumstances, create any implication that there has been no change in the affairs of Parent, the Purchaser, Goldfield or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase.
The Purchaser has filed with the SEC a Tender Offer Statement on Schedule TO pursuant to Rule 14d-3 of the General Rules and Regulations under the Exchange Act, together with exhibits furnishing certain additional information with respect to the Offer, and may file amendments thereto. A copy of such documents, and any amendments thereto, may be examined at, and copies may be obtained from, the SEC in the manner set forth under Section 7 Certain Information Concerning Goldfield Available Information.
FR UTILITY SERVICES MERGER SUB, INC.
December 1, 2020
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DIRECTORS AND EXECUTIVE OFFICERS OF THE PURCHASER, PARENT, FIRST RESERVE AND CONTROLLING ENTITIES
1. |
Purchaser |
Purchaser is a Delaware corporation incorporated on November 12, 2020, with principal executive offices at 290 Harbor Drive, Stamford, CT 06902. The telephone number of its principal executive offices is (203) 661-6601. To date, Purchaser has engaged in no activities other than those incidental to its formation, and Purchaser does not expect to engage in any activities other than those related to the structuring and negotiation of the Offer and the Merger and arranging of the Equity Financing and the Debt Financing (as described below in Section 9 Source and Amount of Funds) in connection with the Offer and the Merger. The Purchaser has no assets or liabilities other than its contractual rights and obligations related to the Merger Agreement. Until immediately prior to the time the Purchaser purchases Shares pursuant to the Offer, it is not anticipated that the Purchaser will have any significant assets or liabilities or engage in activities other than those incidental to its formation and capitalization and the transactions contemplated by the Offer and the Merger. Purchaser is a direct wholly owned subsidiary of Parent.
Directors and Executive Officers of the Purchaser
The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of the Purchaser are set forth below.
Name |
Position |
Business Address and
|
Present Principal Occupation
|
|||
Jeffrey K. Quake | Director and President |
290 Harbor Drive, Stamford, CT 06902
United States |
Jeffrey K. Quake, Managing Director, joined First Reserve in 2005. Mr. Quakes responsibilities include investment origination, execution and exit strategy, focusing on the global energy equipment manufacturing and services sector. Prior to joining First Reserve, he was a member of the investment team at J.P. Morgans private equity fund for five years. Prior to J.P. Morgan, he was a member of the Corporate Finance team at Lehman Brothers, Inc. Mr. Quake holds a B.A. from Williams College and an M.B.A. from Harvard Business School. | |||
Michael A. Scardigli | Secretary |
290 Harbor Drive, Stamford, CT 06902
United States |
Michael A. Scardigli, Managing Director, joined First Reserve in 2008 as an Associate and returned to First Reserve as a Vice President in 2012 after earning his M.B.A. Mr. Scardiglis responsibilities include investment origination and structuring, due diligence, execution and monitoring, focusing on the equipment, manufacturing and services sector. Prior to joining First Reserve, he was an Analyst in the Mergers and Acquisitions Group in the Investment Banking Division at Citigroup. Mr. Scardigli holds a B.A. from Georgetown University and an M.B.A. from the Wharton School of Business. |
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Name |
Position |
Business Address and
|
Present Principal Occupation
|
|||
Juan Diego Vargas | Treasurer |
600 Travis, Suite 6000, Houston, TX 77002
United States |
Juan Diego Vargas, Director, joined First Reserve in 2007 as an Associate and returned to First Reserve as a Vice President in 2012 after earning his M.B.A. Mr. Vargas responsibilities include investment origination and structuring, due diligence, execution and monitoring, focusing on the equipment, manufacturing and services sector, as well as the resources sector. Prior to joining First Reserve, he was an Analyst in the Financial Sponsors and Latin America Groups at Morgan Stanley. Mr. Vargas holds a B.B.A. from the University of Notre Dame and an M.B.A. from London Business School. |
2. |
Parent |
Parent is a Delaware corporation incorporated on November 12, 2020, with principal executive offices at 290 Harbor Drive, Stamford, CT 06902. The telephone number of its principal executive offices is (203) 661-6601. The sole stockholder of Parent is First Reserve Fund XIV, L.P. The general partner of First Reserve Fund XIV, L.P. is First Reserve GP XIV, L.P. The general partner of First Reserve GP XIV, L.P. is First Reserve GP XIV Limited. To date, Parent has engaged in no activities other than those incidental to its formation, and Parent does not expect to engage in any activities other than those related to the structuring and negotiation of the Offer and the Merger and arranging of the Equity Financing and the Debt Financing (as described below in Section 9 Source and Amount of Funds) in connection with the Offer and the Merger.
Directors and Executive Officers of Parent
The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer or Parent are set forth below.
Name |
Position |
Business Address and
|
Present Principal Occupation
|
|||
Jeffrey K. Quake | Director and President |
290 Harbor Drive, Stamford, CT 06902
United States |
Jeffrey K. Quake, Managing Director, joined First Reserve in 2005. Mr. Quakes responsibilities include investment origination, execution and exit strategy, focusing on the global energy equipment manufacturing and services sector. Prior to joining First Reserve, he was a member of the investment team at J.P. Morgans private equity fund for five years. Prior to J.P. Morgan, he was a member of the Corporate Finance team at Lehman Brothers, Inc. Mr. Quake holds a B.A. from Williams College and an M.B.A. from Harvard Business School. | |||
Michael A. Scardigli | Director and Secretary |
290 Harbor Drive, Stamford, CT 06902
United States |
Michael A. Scardigli, Managing Director, joined First Reserve in 2008 as an Associate and returned to First Reserve as a Vice President in 2012 after earning his M.B.A. Mr. Scardiglis responsibilities include investment origination and structuring, due diligence, execution and monitoring, focusing on the equipment, manufacturing and services sector. Prior |
66
Name |
Position |
Business Address and
|
Present Principal Occupation
|
|||
to joining First Reserve, he was an Analyst in the Mergers and Acquisitions Group in the Investment Banking Division at Citigroup. Mr. Scardigli holds a B.A. from Georgetown University and an M.B.A. from the Wharton School of Business. | ||||||
Juan Diego Vargas | Director and Treasurer |
600 Travis, Suite 6000, Houston, TX 77002
United States |
Juan Diego Vargas, Director, joined First Reserve in 2007 as an Associate and returned to First Reserve as a Vice President in 2012 after earning his M.B.A. Mr. Vargas responsibilities include investment origination and structuring, due diligence, execution and monitoring, focusing on the equipment, manufacturing and services sector, as well as the resources sector. Prior to joining First Reserve, he was an Analyst in the Financial Sponsors and Latin America Groups at Morgan Stanley. Mr. Vargas holds a B.B.A. from the University of Notre Dame and an M.B.A. from London Business School. |
3. |
FIRST RESERVE |
First Reserve Fund XIV, L.P. is a Cayman Islands exempted limited partnership with principal executive offices at 290 Harbor Drive, 5th Floor, Stamford CT 06902. The telephone number of its principal executive offices is (203) 661-6601. The general partner of First Reserve Fund XIV, L.P. is First Reserve GP XIV, L.P. The general partner of First Reserve GP XIV, L.P. is First Reserve GP XIV Limited.
Directors and Executive Officers of First Reserve
The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each designated member of First Reserve Management are set forth below.
Name |
Position |
Present Principal Occupation
|
||
Alex T. Krueger
United States |
President & CEO
290 Harbor Drive, Stamford, CT 06902 |
Alex T. Krueger, President and Chief Executive Officer, joined First Reserve in 1999 (previously, he served as Co-Chief Executive Officer from 2015-2017). Mr. Krueger is responsible for the overall management of the firm and sits on the Private Equity Funds Investment Committee, which is responsible for the supervision of the Firms investment program and strategy. Mr. Krueger also is responsible for the development and management of the Private Equity investment team. In addition, he maintains responsibilities for investment origination, structuring, execution, monitoring and exit strategy across the global energy industry, with particular expertise in the natural resources upstream sector. Prior to joining First Reserve, Mr. Krueger worked in the Energy group of Donaldson, Lufkin & Jenrette in Houston. Mr. Krueger holds two B.S. degrees from the University of Pennsylvania. |
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The Letter of Transmittal, certificates for Shares and any other required documents should be sent by each stockholder of Goldfield or such stockholders broker, dealer, commercial bank, trust company or other nominee to the Depositary and Paying Agent as follows:
The Depositary and Paying Agent for the Offer is:
By Mail: | By Overnight Courier: | |
American Stock Transfer & Trust Co., LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
American Stock Transfer & Trust Co., LLC
Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
By Facsimile:
For Eligible Institutions Only:
718-234-5001
For Confirmation Only Telephone:
877-248-6417
Questions or requests for assistance may be directed to the Information Agent at the telephone numbers and address set forth below. Questions or requests for assistance or additional copies of the Offer to Purchase, this Letter of Transmittal and the Notice of Guaranteed Delivery may be directed to the Information Agent at the address and telephone numbers set forth below. Stockholders may also contact their broker, dealer, commercial bank or trust company for assistance concerning the Offer.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Stockholders may call toll free: (877) 717-3930
Banks and Brokers may call collect: (212) 750-5833
Exhibit (a)(1)(B)
Letter of Transmittal to Tender Shares of Common Stock
Of
THE GOLDFIELD CORPORATION
at $7.00 Net Per Share Pursuant to the Offer to Purchase dated December 1, 2020 by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
The undersigned represents that I (we) have full authority to surrender without restriction the certificate(s) listed below. You are hereby authorized and instructed to deliver to the address indicated below (unless otherwise instructed in the boxes in the following page) a check representing a cash payment for shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation (Goldfield) tendered pursuant to this Letter of Transmittal (as defined below), at a price of $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the Offer Price), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase) and this letter of transmittal (together with any amendments or supplements hereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer).
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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Method of delivery of the certificate(s) is at the option and risk of the owner thereof. See Instruction 2.
Mail or deliver this Letter of Transmittal, together with the certificate(s) representing your Shares, to:
If delivering by hand, express mail, courier, or other expedited service: |
By mail: | |
American Stock Transfer & Trust Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
American Stock Transfer & Trust Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York 11219 |
Pursuant to the Offer of FR Utility Services Merger Sub, Inc. (the Purchaser) to purchase all of the issued and outstanding Shares of Goldfield, the undersigned encloses herewith and surrenders the certificate(s) representing Shares of Goldfield set forth above.
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY. YOU MUST SIGN THIS LETTER OF TRANSMITTAL WHERE INDICATED BELOW, WITH A SIGNATURE GUARANTEE IF REQUIRED, AND COMPLETE EITHER THE SUBSTITUTE FORM W-9 ACCOMPANYING THIS LETTER OF TRANSMITTAL OR AN APPLICABLE INTERNAL REVENUE SERVICE FORM W-8. SEE INSTRUCTION 9 BELOW.
PLEASE READ THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.
IF YOU WOULD LIKE ADDITIONAL COPIES OF THIS LETTER OF TRANSMITTAL OR ANY OF THE OTHER OFFER DOCUMENTS, STOCKHOLDERS SHOULD CONTACT THE INFORMATION AGENT, INNISFREE M&A INCORPORATED TOLL FREE AT (877) 717-3930. BANKS AND BROKERS MAY CALL (212) 750-5833.
You have received this Letter of Transmittal in connection with the offer of FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (Parent), which is an affiliate of First Reserve Fund XIV, L.P., to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share (collectively, the Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a price of $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the Offer Price), as described in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase) and this letter of transmittal (together with any amendments or supplements hereto, the Letter of Transmittal, and together with the Offer to Purchase the Offer).
You should use this Letter of Transmittal to deliver to American Stock Transfer & Trust Company, LLC (the Depositary and Paying Agent) Shares represented by stock certificates, or held in book-entry form on the books of Goldfield, for tender. If you are delivering your Shares by book-entry transfer to an account maintained by the Depositary and Paying Agent at The Depository Trust Company (DTC), you must use an Agents Message (as defined in Instruction 2 below). In this Letter of Transmittal, stockholders who deliver certificates
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representing their Shares are referred to as Certificate Stockholders, and stockholders who deliver their Shares through book-entry transfer are referred to as Book-Entry Stockholders.
If certificates for your Shares are not immediately available or you cannot deliver your certificates and all other required documents to the Depositary and Paying Agent prior to the Expiration Date (as defined in Section 1-Terms of the Offer of the Offer to Purchase) or you cannot complete the book-entry transfer procedures prior to the Expiration Date, you may nevertheless tender your Shares according to the guaranteed delivery procedures set forth in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase. See Instruction 2 below. Delivery of documents to DTC will not constitute delivery to the Depositary and Paying Agent.
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☐ | CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY AND PAYING AGENT WITH DTC AND COMPLETE THE FOLLOWING (ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS IN DTC MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER): | |||
Name of Tendering Institution: | ||||
DTC Participant Number: | ||||
Transaction Code Number: | ||||
☐ | CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND PAYING AGENT AND COMPLETE THE FOLLOWING (PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY): | |||
Name(s) of Registered Owner(s): | ||||
Number: | ||||
Date of Execution of Notice of Guaranteed Delivery: | ||||
Name of Institution which Guaranteed Delivery: |
NOTE: SIGNATURES MUST BE PROVIDED BELOW.
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.
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Ladies and Gentlemen:
The undersigned hereby tenders to FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (Parent), which is an affiliate of First Reserve Fund XIV, L.P., the above-described shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a price of $7.00 per Share, net to the seller in cash, without interest and less any applicable withholding taxes (the Offer Price), on the terms and subject to the conditions set forth in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), receipt of which is hereby acknowledged, and this letter of transmittal (together with any amendments or supplements hereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer).
On the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), subject to, and effective upon, acceptance for payment and payment for such Shares validly tendered herewith, and not properly withdrawn, prior to the Expiration Date in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, the Purchaser, all right, title and interest in and to all of such Shares being tendered hereby and any and all cash dividends, distributions, rights, other shares or other securities issued or issuable in respect of such Shares on or after the date hereof (collectively, Distributions). In addition, the undersigned hereby irrevocably appoints American Stock Transfer & Trust Company, LLC (the Depositary and Paying Agent) the true and lawful agent and attorney-in-fact and proxy of the undersigned with respect to such Shares and any Distributions with full power of substitution (such proxies and power of attorney being deemed to be an irrevocable power coupled with an interest in the tendered shares) to the full extent of such stockholders rights with respect to such Shares and any Distributions (a) to deliver certificates representing Shares (the Share Certificates) and any Distributions, or transfer of ownership of such Shares and any Distributions on the account books maintained by DTC, together, in either such case, with all accompanying evidence of transfer and authenticity, to or upon the order of the Purchaser, (b) to present such Shares and any Distributions for transfer on the books of Goldfield, and (c) to receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares and any Distributions, all in accordance with the terms and subject to the conditions of the Offer.
The undersigned hereby irrevocably appoints each of the designees of the Purchaser the attorneys-in-fact and proxies of the undersigned, each with full power of substitution, to the full extent of such stockholders rights with respect to such Shares tendered hereby which have been accepted for payment and with respect to any Distributions. The designees of the Purchaser will, with respect to such Shares and any associated Distributions for which the appointment is effective, be empowered to exercise all voting and any other rights of such stockholder, as they, in their sole discretion, may deem proper at any annual, special, adjourned or postponed meeting of the stockholders of Goldfield, by written consent in lieu of any such meeting or otherwise. This proxy and power of attorney shall be irrevocable and coupled with an interest in the tendered Shares. Such appointment is effective when, and only to the extent that, the Purchaser accepts such Shares tendered with this Letter of Transmittal for payment pursuant to the Offer. Upon the effectiveness of such appointment, without further action, all prior powers of attorney, proxies and consents given by the undersigned with respect to such Shares and any associated Distributions will be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given (and, if given, will not be deemed effective). The Purchaser reserves the right to require that, in order for Shares to be deemed validly tendered, immediately upon the Purchasers acceptance for payment of such Shares, the Purchaser must be able to exercise full voting, consent and other rights, to the extent permitted under applicable law, with respect to such Shares and any associated Distributions, including voting at any meeting of stockholders or executing a written consent concerning any matter.
The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer such Shares and any Distributions tendered hereby and, when the same are accepted for payment by the Purchaser, the Purchaser will acquire good, marketable and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim. The undersigned hereby represents and warrants that the undersigned is the registered owner of such Shares, or the Share Certificate(s) have been endorsed to the undersigned in blank, or the undersigned is a participant in
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DTC whose name appears on a security position listing as the owner of such Shares. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary and Paying Agent or the Purchaser to be necessary or desirable to complete the sale, assignment and transfer of such Shares and any Distributions tendered hereby. In addition, the undersigned shall promptly remit and transfer to the Depositary and Paying Agent for the account of the Purchaser any and all Distributions in respect of such Shares tendered hereby, accompanied by appropriate documentation of transfer and, pending such remittance or appropriate assurance thereof, the Purchaser shall be entitled to all rights and privileges as owner of any such Distributions and may withhold the entire purchase price or deduct from the purchase price the amount or value thereof, as determined by the Purchaser in its sole discretion.
It is understood that the undersigned will not receive payment for such Shares unless and until such Shares are accepted for payment and until the Share Certificate(s) owned by the undersigned are received by the Depositary and Paying Agent at the address set forth above, together with such additional documents as the Depositary and Paying Agent may require, or, in the case of Shares held in book-entry form, ownership of Shares is validly transferred on the account books maintained by DTC, and until the same are processed for payment by the Depositary and Paying Agent.
IT IS UNDERSTOOD THAT THE METHOD OF DELIVERY OF SHARES, THE SHARE CERTIFICATE(S) AND ALL OTHER REQUIRED DOCUMENTS (INCLUDING DELIVERY THROUGH DTC) IS AT THE OPTION AND RISK OF THE UNDERSIGNED AND THAT THE RISK OF LOSS OF SUCH SHARES, SHARE CERTIFICATE(S) AND OTHER DOCUMENTS SHALL PASS ONLY AFTER THE DEPOSITARY AND PAYING AGENT HAS ACTUALLY RECEIVED SUCH SHARES OR SHARE CERTIFICATE(S) (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION (AS DEFINED BELOW)). IF DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall not be affected by, and shall survive, the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal representatives, successors and assigns of the undersigned. Except as stated in the Offer to Purchase, this tender is irrevocable.
The undersigned understands that the acceptance for payment by the Purchaser of Shares tendered pursuant to one of the procedures described in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase and in the instructions hereto will constitute a binding agreement between the undersigned and the Purchaser upon the terms and subject to the conditions of the Offer.
Unless otherwise indicated herein under Special Payment Instructions, please issue the check for the purchase price in the name(s) of, and/or return any Share Certificates representing Shares not tendered or accepted for payment to, the registered owner(s) appearing under Description of Shares Tendered. Similarly, unless otherwise indicated under Special Delivery Instructions, please mail the check for the purchase price and/or return any Share Certificates representing Shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered owner(s) appearing under Description of Shares Tendered. In the event that both the Special Delivery Instructions and the Special Payment Instructions are completed, please issue the check for the purchase price and/or issue any Share Certificates representing Shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name of, and deliver such check and/or return such Share Certificates (and any accompanying documents, as appropriate) to, the person or persons so indicated. Unless otherwise indicated herein in the box titled Special Payment Instructions, please credit any Shares tendered hereby or by an Agents Message and delivered by book-entry transfer, but which are not purchased, by crediting the account at DTC designated above. The undersigned recognizes that the Purchaser has no obligation pursuant to the Special Payment Instructions to transfer any Shares from the name of the registered owner thereof if the Purchaser does not accept for payment any Shares so tendered.
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SPECIAL PAYMENT INSTRUCTIONS
(See Instructions 1, 4, 5 and 7)
To be completed ONLY if Share Certificate(s) not tendered or not accepted for payment and/or the check for the purchase price in consideration of Shares accepted for payment are to be issued in the name of someone other than the undersigned or if Shares tendered by book-entry transfer which are not accepted for payment are to be returned by credit to an account maintained at DTC other than that designated above.
Issue: ☐ Check and/or ☐ Share Certificates to:
Name:
(Please Print)
Address:
(Include Zip Code)
(Tax Identification or Social Security Number)
☐ Credit Shares tendered by book-entry transfer that are not accepted for payment to the DTC account set forth below.
(DTC Account Number)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 4, 5 and 7)
To be completed ONLY if Share Certificate(s) not tendered or not accepted for payment and/or the check for the purchase price of Shares accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that shown in the box titled Description of Shares Tendered above.
Deliver: ☐ Check(s) and/or ☐ Share Certificates to:
Name:
(Please Print)
Address:
(Include Zip Code)
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IMPORTANT-SIGN HERE
(U.S. Holders Please Also Complete the Enclosed Internal Revenue Service (IRS) Form W-9)
(Non-U.S. Holders Please Obtain and Complete an Applicable IRS Form W-8)
(Signature(s) of Stockholder(s)) |
Dated: , 2020
(Must be signed by registered owner(s) exactly as name(s) appear(s) on Share Certificate(s) or on a security position listing or by person(s) authorized to become registered owner(s) by certificates and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5. For information concerning signature guarantees, see Instruction 1.)
Name(s): |
(Please Print) |
Capacity (full title): |
Address: |
(Include Zip Code) |
Area Code and Telephone Number: |
Tax Identification or |
Social Security No.: |
GUARANTEE OF SIGNATURE(S)
(For use by Eligible Institutions only;
see Instructions 1 and 5)
Name of Firm: |
(Include Zip Code) |
Authorized Signature: |
Name: |
(Please Type or Print) |
Area Code and Telephone Number: |
Dated: , 2020 |
Place medallion guarantee in space below: |
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INSTRUCTIONS
Forming Part of the Terms and Conditions of the Offer
1. Guarantee of Signatures. Except as otherwise provided below, all signatures on this Letter of Transmittal must be guaranteed by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges Medallion Program (each, an Eligible Institution). Signatures on this Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal is signed by the registered owner(s) (which term, for purposes of this document, includes any participant in any of DTCs systems whose name appears on a security position listing as the owner of such Shares) of Shares tendered herewith and such registered owner has not completed the box titled Special Payment Instructions or the box titled Special Delivery Instructions on this Letter of Transmittal or (b) if such Shares are tendered for the account of an Eligible Institution. See Instruction 5.
2. Delivery of Letter of Transmittal and Certificates or Book-Entry Confirmations. This Letter of Transmittal is to be completed by stockholders if Share Certificates are to be forwarded herewith. If tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase, an Agents Message must be utilized. For any Eligible Institution, a manually executed facsimile of this document may be used in lieu of the original. Share Certificates representing all physically tendered Shares, or confirmation of any book-entry transfer into the Depositary and Paying Agents account at DTC of Shares tendered by book-entry transfer (Book Entry Confirmation), as well as this Letter of Transmittal properly completed and duly executed with any required signature guarantees, or an Agents Message in the case of a book-entry transfer, and any other documents required by this Letter of Transmittal, must be received by the Depositary and Paying Agent at its address set forth herein prior to the Expiration Date. Please do not send your Share Certificates directly to the Purchaser, Parent, or Goldfield.
Stockholders whose Share Certificates are not immediately available or who cannot deliver all other required documents to the Depositary and Paying Agent prior to the Expiration Date or who cannot complete the procedures for book-entry transfer prior to the Expiration Date may nevertheless tender their Shares by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase. Pursuant to such procedure: (a) such tender must be made by or through an Eligible Institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery substantially in the form provided by Purchaser must be received by the Depositary and Paying Agent prior to the Expiration Date, and (c) Share Certificates representing all tendered Shares, in proper form for transfer (or a Book Entry Confirmation with respect to such Shares), this Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof), properly completed and duly executed with any required signature guarantees (or, in the case of a book-entry transfer, an Agents Message), and all other documents required by this Letter of Transmittal, if any, must be received by the Depositary and Paying Agent within two NYSE American trading days after the date of execution of such Notice of Guaranteed Delivery.
A properly completed and duly executed Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof) must accompany each such delivery of Share Certificates to the Depositary and Paying Agent.
The term Agents Message means a message, transmitted through electronic means by DTC to, and received by, the Depositary and Paying Agent and forming part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering Shares which are the subject of such Book-Entry Confirmation that such participant has received and agrees to be bound by the terms of this Letter of Transmittal and that the Purchaser may enforce such agreement against the participant. The term
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Agents Message also includes any hard copy printout evidencing such message generated by a computer terminal maintained at the Depositary and Paying Agents office.
THE METHOD OF DELIVERY OF SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. DELIVERY OF ALL SUCH DOCUMENTS WILL BE DEEMED MADE AND RISK OF LOSS OF THE SHARE CERTIFICATES SHALL PASS ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.
No alternative, conditional or contingent tenders will be accepted. All tendering stockholders, by execution of this Letter of Transmittal (or facsimile thereof), waive any right to receive any notice of the acceptance of their Shares for payment.
All questions as to validity, form and eligibility (including time of receipt) of the surrender of any Share Certificate hereunder, including questions as to the proper completion or execution of any Letter of Transmittal, Notice of Guaranteed Delivery or other required documents and as to the proper form for transfer of any Share Certificates, will be determined by the Purchaser (which may delegate power in whole or in part to the Depositary and Paying Agent) in its sole and absolute discretion which determination will be final and binding. The Purchaser reserves the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of or payment for which may be unlawful. The Purchaser also reserves the absolute right to waive any defect or irregularity in the surrender of any Shares or Share Certificate(s) whether or not similar defects or irregularities are waived in the case of any other stockholder. A surrender will not be deemed to have been validly made until all defects and irregularities have been cured or waived. None of Parent, the Purchaser or any of their respective affiliates or assigns, the Depositary and Paying Agent, the Information Agent or any other person will be under any duty to give notification of any defects or irregularities in tenders or incur any liability for failure to give any such notification.
The Purchasers interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the Instructions thereto and any other documents related to the Offer) will be final and binding.
3. Inadequate Space. If the space provided herein is inadequate, the Share Certificate numbers, the number of Shares represented by such Share Certificates and/or the number of Shares tendered should be listed on a separate schedule attached hereto and separately signed on each page thereof in the same manner as this Letter of Transmittal is signed.
4. Partial Tenders (Applicable to Certificate Stockholders Only). If fewer than all Shares evidenced by any Share Certificate delivered to the Depositary and Paying Agent are to be tendered, fill in the number of Shares which are to be tendered in the column titled Number of Shares Tendered in the box titled Description of Shares Tendered. In such cases, new Share Certificate(s) for the remainder of such Shares that were evidenced by the old Share Certificate(s) but not tendered will be sent to the registered owner, unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the Expiration Date. All Shares represented by Share Certificates delivered to the Depositary and Paying Agent will be deemed to have been tendered unless otherwise indicated.
5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered owner(s) of such Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the Share Certificate(s) without alteration or any other change whatsoever.
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If any Shares tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.
If any tendered Shares are registered in the names of different holder(s), it will be necessary to complete, sign and submit as many separate Letters of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof) as there are different registrations of such Shares.
If this Letter of Transmittal or any Share Certificates or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to the Purchaser of their authority so to act must be submitted, or in lieu of such document, signatures must be guaranteed by an Eligible Institution. See Instruction 1.
If this Letter of Transmittal is signed by the registered owner(s) of such Shares listed and transmitted hereby, no endorsements of Share Certificates or separate stock powers are required unless payment is to be made to, or Share Certificates representing Shares not tendered or accepted for payment are to be issued in the name of, a person other than the registered owner(s), in which case the Share Certificates representing such Shares tendered by this Letter of Transmittal must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered owner(s) or holder(s) appear(s) on the Share Certificates. Signatures on such Share Certificates or stock powers must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than the registered owner(s) of such Share(s) listed, the Share Certificate(s) must be endorsed or accompanied by the appropriate stock powers, in either case, signed exactly as the name or names of the registered owner(s) or holder(s) appear(s) on the Share Certificate(s). Signatures on such Share Certificates or stock powers must be guaranteed by an Eligible Institution.
6. Transfer Taxes. Except as otherwise provided in this Instruction 6, the Parent will pay any transfer taxes with respect to the transfer and sale of Shares to it or to its order pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include United States federal, state, local or foreign income or backup withholding taxes). If, however, payment of the purchase price is to be made to, or (in the circumstances permitted hereby) if Share Certificates not tendered or accepted for payment are to be registered in the name of, any person other than the registered owner(s), or if tendered Share Certificates are registered in the name of any person other than the person signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the registered owner(s) or such person) payable on account of the transfer to such person will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Share Certificates listed in this Letter of Transmittal.
7. Special Payment and Delivery Instructions. If a check for the purchase price is to be issued, and/or Share Certificates representing Shares not tendered or accepted for payment are to be issued or returned to, a person other than the signer(s) of this Letter of Transmittal or to an address other than that shown in the box titled Description of Shares Tendered above, the appropriate boxes on this Letter of Transmittal should be completed. Stockholders delivering Shares tendered hereby or by Agents Message by book-entry transfer may request that Shares not purchased be credited to an account maintained at DTC as such stockholder may designate in the box titled Special Payment Instructions herein. If no such instructions are given, all such Shares not purchased will be returned by crediting the same account at DTC as the account from which such Shares were delivered.
8. Requests for Assistance or Additional Copies. Questions or requests for assistance may be directed to the Information Agent at its addresses and telephone number set forth below or to your broker, dealer, commercial
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bank or trust company. Additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender offer materials may be obtained from the Information Agent as set forth below and will be furnished at Purchasers expense.
9. Backup Withholding. Under United States federal income tax laws, the Depositary and Paying Agent will be required to withhold a portion of the amount of any payments made to certain stockholders pursuant to the Offer or the Merger (as defined in the Offer to Purchase), as applicable. In order to avoid such backup withholding, each tendering stockholder or payee that is a United States person (for United States federal income tax purposes), must provide the Depositary and Paying Agent with such stockholders or payees correct taxpayer identification number (TIN) and certify that such stockholder or payee is not subject to such backup withholding by completing the attached IRS Form W-9. Failure to complete the IRS Form W-9 may require the Depositary and Paying Agent to withhold a portion of the amount of any payments made pursuant to the Offer or the Merger. The stockholder must write Applied For in Part I of the IRS Form W-9 if a TIN has not been issued and the stockholder has applied for a number or intends to apply for a number in the near future. If a TIN has been applied for and the Depositary and Paying Agent is not provided with a TIN before payment is made, the Depositary and Paying Agent will withhold 24% on all payments to such stockholders of any consideration due for their Shares. Certain stockholders or payees (including, among others, corporations and certain foreign persons) are not subject to these backup withholding and reporting requirements. A stockholder who is a foreign individual or a foreign entity should complete, sign, and submit to the Depositary and Paying Agent the appropriate IRS Form W-8, which may be downloaded from the Internal Revenue Services website at the following address: http://www.irs.gov. Failure to complete the IRS Form W-9 will not, by itself, cause Shares to be deemed invalidly tendered, but may require the Depositary and Paying Agent to withhold a portion of the amount of any payments made of the purchase price pursuant to the Offer.
NOTE: FAILURE TO COMPLETE AND RETURN THE IRS FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE IMPORTANT TAX INFORMATION SECTION BELOW.
10. Lost, Destroyed, Mutilated or Stolen Share Certificates. If any Share Certificate has been lost, destroyed, mutilated or stolen, the stockholder should promptly notify Goldfields stock transfer agent, American Stock Transfer & Trust Company, LLC at (800) 937-5449. The stockholder will then be instructed as to the steps that must be taken in order to replace the Share Certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, mutilated, destroyed or stolen Share Certificates have been followed.
11. Waiver of Conditions. Subject to the terms and conditions of the Merger Agreement (as defined in the Offer to Purchase) and the applicable rules and regulations of the U.S. Securities and Exchange Commission, the conditions of the Offer may be waived by the Purchaser in whole or in part at any time and from time to time in its sole discretion.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY EXECUTED FACSIMILE COPY THEREOF) OR AN AGENTS MESSAGE, TOGETHER WITH SHARE CERTIFICATE(S) OR BOOK-ENTRY CONFIRMATION OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY AND PAYING AGENT PRIOR TO THE EXPIRATION DATE.
IMPORTANT TAX INFORMATION
Under current United States federal income tax law, a stockholder who receives cash for Shares pursuant to the Offer or the Merger may be subject to backup withholding. In order to avoid such backup withholding, a
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stockholder that is a non-exempt United States person (for United States federal income tax purposes) whose tendered Shares are accepted for payment, or whose Shares are converted in the Merger, is required by law to provide the Depositary and Paying Agent (as payer) with such stockholders correct TIN on the IRS Form W-9 attached hereto. In general, if such stockholder is an individual, the TIN is such stockholders social security number. If the Depositary and Paying Agent is not provided with the correct TIN, the stockholder may be subject to penalties imposed by the IRS and payments that are made to such stockholder with respect to Shares purchased pursuant to the Offer, or converted in the Merger, may be subject to backup withholding. For further information concerning backup withholding and instructions for completing the IRS Form W-9 (including how to obtain a TIN if you do not have one and how to complete the IRS Form W-9 if such Shares are held in more than one name), consult the instructions to the enclosed IRS Form W-9.
Certain stockholders or payees (including, among others, corporations and certain foreign persons) are not subject to these backup withholding and reporting requirements. In order to satisfy the Depositary and Paying Agent that a foreign person qualifies as an exempt recipient, such stockholder must submit a statement, signed under penalties of perjury, attesting to such persons exempt status, on a properly completed and executed appropriate IRS Form W-8, which may be downloaded from the IRS website at the following address: http://www.irs.gov.
Failure to properly complete and execute the attached IRS Form W-9 (or applicable IRS Form W-8) may require the Depositary and Paying Agent to withhold a portion of the amount of any payments made pursuant to the Offer or the Merger. If backup withholding applies, the Depositary and Paying Agent is required to withhold 24% of any payments of the purchase price made to the stockholder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may be obtained from the IRS provided that the required information is timely furnished to the IRS.
NOTE: STOCKHOLDERS ARE URGED TO CONSULT THEIR TAX ADVISORS REGARDING THE APPLICABILITY AND REFUND OF BACKUP WITHHOLDING TAX. FAILURE TO COMPLETE AND RETURN THE ENCLOSED IRS FORM W-9 (OR APPLICABLE IRS FORM W-8) MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER OR THE MERGER. PLEASE REVIEW THE INSTRUCTIONS TO IRS FORM W-9 (OR TO APPLICABLE IRS FORM W-8) FOR ADDITIONAL DETAILS.
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Form W-9
(Rev. October 2018) Department of the Treasury Internal Revenue Service |
Request for Taxpayer Identification Number and Certification
u Go to www.irs.gov/FormW9 for instructions and the latest information. |
Give Form to the requester. Do not send to the IRS.
|
Part I |
Taxpayer Identification Number (TIN) |
|
Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter. |
Employer identification number |
|||||||||||||||||||||||||
- |
Part II | Certification |
Under penalties of perjury, I certify that:
1. | The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and |
2. | I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and |
3. | I am a U.S. citizen or other U.S. person (defined below); and |
4. | The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct. |
Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.
Sign
Here |
Signature of
U.S. person u |
Date u |
General Instructions
Section references are to the Internal Revenue Code unless otherwise noted.
Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.
Purpose of Form
An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.
Form 1099-INT (interest earned or paid)
Form 1099-DIV (dividends, including those from stocks or mutual funds)
Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)
Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)
Form 1099-S (proceeds from real estate transactions)
Form 1099-K (merchant card and third party network transactions)
Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)
Form 1099-C (canceled debt)
Form 1099-A (acquisition or abandonment of secured property)
Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.
If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.
Cat. No. 10231X |
Form W-9 (Rev. 10-2018) |
Form W-9 (Rev. 10-2018) |
Page 2 |
By signing the filled-out form, you:
1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),
2. Certify that you are not subject to backup withholding, or
3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners share of effectively connected income, and
4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.
Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requesters form if it is substantially similar to this Form W-9.
Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:
An individual who is a U.S. citizen or U.S. resident alien;
A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;
An estate (other than a foreign estate); or
A domestic trust (as defined in Regulations section 301.7701-7).
Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.
In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.
In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;
In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and
In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.
Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).
Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a saving clause. Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.
If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.
1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.
2. The treaty article addressing the income.
3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.
4. The type and amount of income that qualifies for the exemption from tax.
5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.
Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.
If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.
Backup Withholding
What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called backup withholding. Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.
You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.
Payments you receive will be subject to backup withholding if:
1. You do not furnish your TIN to the requester,
2. You do not certify your TIN when required (see the instructions for Part II for details),
3. The IRS tells the requester that you furnished an incorrect TIN,
4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or
5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).
Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.
Also see Special rules for partnerships, earlier.
What is FATCA Reporting?
The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.
Updating Your Information
You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.
Penalties
Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.
Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.
Form W-9 (Rev. 10-2018) |
Page 3 |
Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.
Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.
Specific Instructions
Line 1
You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.
If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.
a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.
Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.
b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or doing business as (DBA) name on line 2.
c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entitys name as shown on the entitys tax return on line 1 and any business, trade, or DBA name on line 2.
d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.
e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a disregarded entity. See Regulations section 301.7701-2(c)(2)(iii). Enter the owners name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner's name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity's name on line 2, Business name/disregarded entity name. If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.
Line 2
If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.
Line 3
Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.
IF the entity/person on line 1 is a(n) . . . |
THEN check the box for . . . | |||
Corporation | Corporation | |||
Individual
Sole proprietorship, or
Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes. |
Individual/sole proprietor or single-member LLC | |||
LLC treated as a partnership for U.S. federal tax purposes,
LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or
LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes. |
Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation) | |||
Partnership | Partnership | |||
Trust/estate | Trust/estate |
Line 4, Exemptions
If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.
Exempt payee code.
Generally, individuals (including sole proprietors) are not exempt from backup withholding.
Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.
Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.
Corporations are not exempt from backup withholding with respect to attorneys fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.
The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.
1An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)
2The United States or any of its agencies or instrumentalities
3A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
4A foreign government or any of its political subdivisions, agencies, or instrumentalities
5A corporation
6A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession
7A futures commission merchant registered with the Commodity Futures Trading Commission
8A real estate investment trust
9An entity registered at all times during the tax year under the Investment Company Act of 1940
10A common trust fund operated by a bank under section 584(a)
11A financial institution
12A middleman known in the investment community as a nominee or custodian
13A trust exempt from tax under section 664 or described in section 4947
Form W-9 (Rev. 10-2018) |
Page 4 |
The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.
IF the payment is for . . . |
THEN the payment is exempt
for . . . |
|
Interest and dividend payments | All exempt payees except for 7 | |
Broker transactions | Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012. | |
Barter exchange transactions and patronage dividends | Exempt payees 1 through 4 | |
Payments over $600 required to be reported and direct sales over $5,0001 | Generally, exempt payees 1 through 52 | |
Payments made in settlement of payment card or third party network transactions | Exempt payees 1 through 4 |
1 |
See Form 1099-MISC, Miscellaneous Income, and its instructions. |
2 |
However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency. |
Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with Not Applicable (or any similar indication) written or printed on the line for a FATCA exemption code.
AAn organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)
BThe United States or any of its agencies or instrumentalities
CA state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities
DA corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)
EA corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)
FA dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state
GA real estate investment trust
HA regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940
IA common trust fund as defined in section 584(a)
JA bank as defined in section 581
KA broker
LA trust exempt from tax under section 664 or described in section 4947(a)(1)
MA tax exempt trust under a section 403(b) plan or section 457(g) plan
Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.
Line 5
Enter your address (number, street, and apartment or suite number). This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.
Line 6
Enter your city, state, and ZIP code.
Part I. Taxpayer Identification Number (TIN)
Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.
If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.
If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owners SSN (or EIN, if the owner has one). Do not enter the disregarded entitys EIN. If the LLC is classified as a corporation or partnership, enter the entitys EIN.
Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.
How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.
If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write Applied For in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.
Note: Entering Applied For means that you have already applied for a TIN or that you intend to apply for one soon.
Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.
Part II. Certification
To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.
For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.
Signature requirements. Complete the certification as indicated in items 1 through 5 below.
Form W-9 (Rev. 10-2018) |
Page 5 |
1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.
2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.
3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.
4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. Other payments include payments made in the course of the requesters trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).
5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.
What Name and Number To Give the Requester
For this type of account: | Give name and SSN of: | |||||
1. | Individual | The individual | ||||
2. | Two or more individuals (joint account) other than an account maintained by an FFI | The actual owner of the account or, if combined funds, the first individual on the account1 | ||||
3. |
Two or more U.S. persons (joint account maintained by an FFI) |
Each holder of the account | ||||
4. | Custodialaccount of a minor (Uniform Gift to Minors Act) | The minor2 | ||||
5. | a. The usual revocable savings trust (grantor is also trustee) | The grantor-trustee1 | ||||
b. So-called trust account that is not a legal or valid trust under state law | The actual owner1 | |||||
6. | Sole proprietorship or disregarded entity owned by an individual | The owner3 | ||||
7. | Grantortrust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A)) | The grantor* | ||||
For this type of account: | Give name and EIN of: | |||||
8. | Disregarded entity not owned by an individual | The owner | ||||
9. | A valid trust, estate, or pension trust | Legal entity4 | ||||
10. | Corporation or LLC electing corporate status on Form 8832 or Form 2553 | The corporation | ||||
11. | Association, club, religious, charitable, educational, or other tax-exempt organization | The organization | ||||
12. | Partnership or multi-member LLC | The partnership | ||||
13. | A broker or registered nominee | The broker or nominee |
For this type of account: | Give name and EIN of: | |||||
14. | Account with the Department of Agriculture in the name of a public entity (such as a state or local government, school district, or prison) that receives agricultural program payments | The public entity | ||||
15. | Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B)) | The trust |
1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that persons number must be furnished.
2 Circle the minors name and furnish the minors SSN.
3 You must show your individual name and you may also enter your business or DBA name on the Business name/disregarded entity name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.
4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.
*Note: The grantor also must provide a Form W-9 to trustee of trust.
Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.
Secure Your Tax Records From Identity Theft
Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.
To reduce your risk:
Protect your SSN,
Ensure your employer is protecting your SSN, and
Be careful when choosing a tax preparer.
If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.
If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.
For more information, see Pub. 5027, Identity Theft Information for Taxpayers.
Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.
Protect yourself from suspicious emails or phishing schemes. Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.
Form W-9 (Rev. 10-2018) |
Page 6 |
The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.
If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.
Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.
Privacy Act Notice
Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.
The Depositary and Paying Agent for the Offer to Purchase is:
If delivering by hand, express mail, courier, or other expedited service: | By mail: | By facsimile: | ||
American Stock Transfer & Trust Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York |
American Stock Transfer & Trust Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York |
For Eligible Institutions Only: 718-234-5001
For Telephonic Confirmation of Facsimile Receipt: 877-248-6417 |
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY AND PAYING AGENT.
Any questions or requests for assistance may be directed to the Information Agent at its telephone number and location listed below. Requests for additional copies of this Offer to Purchase and the Letter of Transmittal may be directed either to the Information Agent at their respective telephone numbers and locations listed below. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, New York 10022
Stockholders may call toll free: (877) 717-3930
Banks and Brokers may call collect: (212) 750-5833
Exhibit (a)(1)(C)
NOTICE OF GUARANTEED DELIVERY
for Tender of Shares of Common Stock
of
THE GOLDFIELD CORPORATION
at
$7.00 NET PER SHARE
Pursuant to the Offer to Purchase dated December 1, 2020
by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
This Notice of Guaranteed Delivery, or one substantially in the form hereof, must be used to accept the Offer (as defined below) if a stockholder wishes to participate in the Offer and (i) certificates representing such Shares (as defined below) are not immediately available, (ii) the procedure for book-entry transfer cannot be completed prior to the expiration of the Offer or (iii) time will not permit all required documents to reach American Stock Transfer & Trust Company, LLC (the Depositary and Paying Agent) prior to the expiration of the Offer. This Notice of Guaranteed Delivery may be delivered by mail, facsimile transmission or overnight courier to the Depositary and Paying Agent and must include a guarantee by an Eligible Institution (as defined below). See Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase (as defined below).
The Depositary and Paying Agent for the Offer is:
If delivering by Mail: |
If delivering by Overnight
Courier: |
If delivering by Facsimile: |
American Stock Transfer & Trust
Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York |
American Stock Transfer & Trust
Co., LLC Operations Center Attn: Reorganization Department 6201 15th Avenue Brooklyn, New York |
For Eligible Institutions Only:
718-234-5001 For Telephonic Confirmation of Facsimile Receipt: 877-248-6417 |
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR TRANSMISSION OF INSTRUCTIONS VIA FACSIMILE TRANSMISSION, OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN ELIGIBLE INSTITUTION UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE APPROPRIATE LETTER OF TRANSMITTAL.
The Eligible Institution (as defined in the Offer to Purchase) that completes this Notice of Guaranteed Delivery must communicate the guarantee to the Depositary and Paying Agent and must deliver a properly completed and duly executed Letter of Transmittal (as defined below) or an Agents Message (as defined in the Offer to Purchase) and certificates for Shares or book-entry Shares that are the subject of this Notice of Guaranteed Delivery to the Depositary and Paying Agent within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution.
Ladies and Gentlemen:
The undersigned hereby tenders to FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), and the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer), receipt of which is hereby acknowledged, the number of shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation, specified below, pursuant to the guaranteed delivery procedure set forth in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase.
Number of Shares Tendered and Share Certificate Number(s) (if available):
Check here and complete information below if Shares will be tendered by book entry transfer: ☐ |
Name of Tendering Institution: |
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DTC Account Number or Participant Number: |
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Transaction Code Number: |
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Dated: , 2020
Name(s) of Record Holder(s): |
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(Please type or print)
Address(es): |
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(Zip code)
Area Code and Telephone Number: |
(Daytime telephone number)
Signature(s): |
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GUARANTEE
(Not to be used for signature guarantee)
The undersigned, a member in good standing of a recognized Medallion Program approved by The Securities Transfer Association Inc., including the Securities Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges Medallion Program (each an Eligible Institution), hereby guarantees either the certificates representing such Shares tendered hereby, in proper form for transfer, or timely confirmation of a book-entry transfer of such Shares into the Depositary and Paying Agents account at The Depository Trust Company (DTC) (pursuant to the procedures set forth in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase), in either case together with a properly completed and duly executed Letter of Transmittal (or, with respect to Eligible Institutions, a manually executed facsimile thereof) with any required signature guarantees or, in the case of a book-entry transfer, an Agents Message (as defined in Section 3-Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase), together with any other documents required by the Letter of Transmittal, all within two (2) NYSE American trading days (as defined in the Offer to Purchase) after the date of execution hereof.
The Eligible Institution that completes this form must communicate the guarantee to the Depositary and Paying Agent and must deliver the Letter of Transmittal, certificates for Shares and/or any other required documents to the Depositary and Paying Agent within the time period shown above. Failure to do so could result in a financial loss to such Eligible Institution.
Participants should notify the Depositary and Paying Agent prior to covering through the submission of a physical security directly to the Depositary and Paying Agent based on a guaranteed delivery that was submitted via DTCs PTOP platform.
Name of Firm: |
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Address: |
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(Zip Code)
Area Code and Telephone Number: |
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Authorized Signature: |
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Name: |
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Title: |
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Date: |
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NOTE: DO NOT SEND CERTIFICATES REPRESENTING TENDERED SHARES WITH THIS NOTICE. CERTIFICATES REPRESENTING TENDERED SHARES ARE TO BE SENT WITH YOUR LETTER OF TRANSMITTAL.
Exhibit (a)(1)(D)
Offer To Purchase For Cash
All Outstanding Shares of Common Stock
of
THE GOLDFIELD CORPORATION
at
$7.00 NET PER SHARE
Pursuant to the Offer to Purchase dated December 1, 2020
by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M. NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
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December 1, 2020
To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:
We have been engaged by FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (Parent), which is an affiliate of First Reserve Fund XIV, L.P., to act as Information Agent in connection with the Purchasers offer to purchase all issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a purchase price of $7.00 per Share, net to the seller in cash without interest and less any applicable withholding taxes (such amount, or any other amount per share paid in the Offer in accordance with the Merger Agreement (as defined below), the Offer Price), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), and the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer) enclosed herewith. Please furnish copies of the enclosed materials to those of your clients for whom you hold Shares registered in your name or in the name of your nominee.
THE BOARD OF DIRECTORS OF GOLDFIELD RECOMMENDS THAT STOCKHOLDERS ACCEPT THE OFFER AND TENDER ALL THEIR SHARES IN THE OFFER.
The Offer is subject to the satisfaction of conditions specified in the Agreement and Plan of Merger dated as of November 23, 2020, by and among Parent, the Purchaser and Goldfield (together with any amendments or supplements thereto, the Merger Agreement), including, that there shall have been validly tendered and received (as defined in Section 251(h)(6) of the General Corporation Law of the State of Delaware (the DGCL)) in the Offer and not validly withdrawn prior to the Expiration Date (as defined in the Offer to Purchase) that number of Shares that (together with any Shares owned by Parent and its affiliates and excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been received (as such term is defined in Section 251(h)(6) of the DGCL)) represent at least one Share more than one-half of the number of Shares at the Offer Acceptance Time (as defined in the Offer to Purchase) (the Minimum Condition) and the other conditions described in the Offer to Purchase. See Section 15 - Certain Conditions of the Offer of the Offer to Purchase.
For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the following documents:
1. |
The Offer to Purchase; |
2. |
The Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients, which includes an IRS Form W-9 relating to backup federal income tax withholding; |
3. |
A Notice of Guaranteed Delivery to be used to accept the Offer if such Shares and all other required documents cannot be delivered to American Stock Transfer & Trust Company, LLC (the Depositary and Paying Agent) by the Expiration Date of the Offer or if the procedure for book-entry transfer cannot be completed by the expiration date of the Offer; |
4. |
Goldfields Solicitation/Recommendation Statement on Schedule 14D-9; |
5. |
A form of letter which may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients instructions with regard to the Offer; and |
6. |
A return envelope addressed to the Depositary and Paying Agent for your use only. |
Your prompt action is requested. We urge you to contact your clients as promptly as possible. Please note that the Offer will expire at 11:59 P.M., New York City time, on December 29, 2020 unless the Offer is extended or terminated. Previously tendered Shares may be withdrawn at any time until the Offer has expired; and, if not previously accepted for payment at any time, after January 30, 2021, pursuant to SEC (as defined in the Offer to Purchase) regulations.
The Offer is being made pursuant to the Merger Agreement. The Merger Agreement provides, among other things, that following consummation of the Offer and subject to certain conditions, including the Minimum Condition, the Purchaser will merge with and into Goldfield (the Merger and together with the Offer and the other transactions contemplated by the Merger Agreement, collectively, the Transactions), without approval of Goldfields stockholders, pursuant to Section 251(h) of the DGCL with Goldfield surviving as a wholly owned subsidiary of Parent. As a result of the Merger, Shares will cease to be publicly traded. First Reserve Fund XIV, L.P., or an affiliate thereof, is the controlling stockholder of both Parent and the Purchaser.
Pursuant to the Merger Agreement, at the effective time of the Merger (the Effective Time), each Share (excluding any (i) Shares held in the treasury of Goldfield or owned by any direct or indirect wholly owned subsidiary of Goldfield, (ii) Shares owned by Parent, Purchaser or any direct or indirect wholly owned subsidiary of Parent, and (iii) Shares held by stockholders who are entitled to and have preserved their appraisal rights under Section 262 of the DGCL) that is outstanding immediately prior to the Effective Time shall be cancelled, shall cease to exist, shall no longer be outstanding, and shall be converted into the right to receive, in cash, the Offer Price.
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The board of directors of Goldfield unanimously (a) determined and declared that the Merger Agreement and the Transactions contemplated thereby, including the Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to the Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the Offer Acceptance Time.
For Shares to be properly tendered pursuant to the Offer, (i) the share certificates or confirmation of receipt of such Shares under the procedure for book-entry transfer, together with a properly completed and duly executed Letter of Transmittal, including any required medallion signature guarantees, or an Agents Message (as defined in Section 3 - Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase) in the case of book-entry transfer, and any other documents required in the Letter of Transmittal, must be timely received by the Depositary and Paying Agent or (ii) the tendering stockholder must comply with the guaranteed delivery procedures, all in accordance with the Offer to Purchase and the Letter of Transmittal.
Neither Parent nor the Purchaser will pay any fees or commissions to any broker or dealer or other person (other than the Depositary and Paying Agent and the Information Agent as described in the Offer to Purchase) for soliciting tenders of Shares pursuant to the Offer. The Purchaser will, however, upon request, reimburse brokers, dealers, commercial banks, trust companies and other nominees for reasonable and necessary costs and expenses incurred by them in forwarding materials to their customers. The Purchaser will pay all stock transfer taxes applicable to its purchase of Shares pursuant to the Offer, except as otherwise provided in the Letter of Transmittal.
The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction. However, the Purchaser may, in its discretion, take such action as it may deem necessary to make the Offer in any such jurisdiction and extend the Offer to holders of Shares in such jurisdiction.
The Offer is not being made to, nor will tenders be accepted from or on behalf of, holders of Shares in any jurisdiction in which the making of the Offer or acceptance thereof would not be in compliance with the laws of such jurisdiction.
Any inquiries you may have with respect to the Offer should be addressed to, and additional copies of the enclosed materials may be obtained from, the undersigned at the addresses and telephone numbers set forth on the back cover of the Offer to Purchase.
Very truly yours,
Innisfree M&A Incorporated
Nothing contained herein or in the enclosed documents shall render you the agent of the Purchaser, the Information Agent or the Depositary and Paying Agent or any affiliate of any of them or authorize you or any other person to use any document or make any statement or representation on behalf of any of them in connection with the Offer not contained in the Offer to Purchase or the Letter of Transmittal.
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Exhibit (a)(1)(E)
Offer To Purchase For Cash
All Outstanding Shares of Common Stock
of
THE GOLDFIELD CORPORATION
at
$7.00 NET PER SHARE
Pursuant to the Offer to Purchase dated December 1, 2020
by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
December 1, 2020
To Our Clients:
Enclosed for your consideration are the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), and the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer) in connection with the offer by FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation (Parent), which is an affiliate of First Reserve Fund XIV, L.P., to purchase all issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a purchase price of $7.00 per Share, net to the seller in cash (the Offer Price), without interest and less any applicable withholding taxes, upon the terms and subject to the conditions of the Offer.
Also enclosed is Goldfields Solicitation/Recommendation Statement on Schedule 14D-9 (the Schedule 14D-9), which was filed with the U.S. Securities and Exchange Commission (the SEC) in connection with the Offer.
FOR THE REASONS DESCRIBED IN THE SCHEDULE 14D-9, THE BOARD OF DIRECTORS OF GOLDFIELD UNANIMOUSLY RECOMMENDS THAT YOU ACCEPT THE OFFER AND TENDER ALL OF YOUR SHARES IN THE OFFER.
We or our nominees are the holder of record of Shares held for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal accompanying this letter is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account.
We request instructions as to whether you wish us to tender any or all of such Shares held by us for your account pursuant to the Offer.
Please note carefully the following:
1. |
The Offer Price is $7.00 per Share, net to you in cash without interest, and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer. |
2. |
The Offer is being made for all issued and outstanding Shares. |
3. |
The Offer is being made in connection with the Agreement and Plan of Merger, dated as of November 23, 2020 (together with any amendments or supplements thereto, the Merger Agreement), among Parent, the Purchaser and Goldfield, pursuant to which, after the completion of the Offer and the satisfaction or waiver of the conditions set forth therein, the Purchaser will merge with and into Goldfield (the Merger), without approval of Goldfields stockholders, pursuant to Section 251(h) of the General Corporation Law of the State of Delaware (the DGCL), which permits completion of the Merger without approval of Goldfields stockholders upon collective ownership by Parent, Purchaser and any other affiliate of Parent of one Share more than 50% of the then-outstanding Shares, with Goldfield surviving as a wholly owned subsidiary of Parent. As a result of the Merger, Shares will cease to be publicly traded. First Reserve Fund XIV, L.P., or an affiliate thereof, is the controlling stockholder of both Parent and the Purchaser. |
4. |
The board of directors of Goldfield unanimously (a) determined and declared that the Merger Agreement and the transactions contemplated thereby (the Transactions), including the Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to the Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the time Purchaser, for the first time, irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer. |
5. |
The Offer and withdrawal rights will expire at 11:59 P.M., New York City time, on December 29, 2020, unless the Offer is extended by the Purchaser in accordance with the Merger Agreement. Previously tendered Shares may be withdrawn at any time until the Offer has expired; and, if not previously accepted for payment, at any time, after January 30, 2021, pursuant to SEC (as defined in the Offer to Purchase) regulations. |
6. |
The Offer is subject to the satisfaction of the Minimum Condition (as defined in the Offer to Purchase) and the other conditions described in the Offer to Purchase. See Section 15Certain Conditions of the Offer of the Offer to Purchase. |
7. |
Any transfer taxes applicable to the sale of Shares to the Purchaser pursuant to the Offer will be paid by the Purchaser, except as otherwise provided in the Letter of Transmittal. |
If you wish to have us tender any or all of your Shares, then please so instruct us by completing, executing, detaching and returning to us the Instruction Form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize the tender of your Shares, then all such Shares will be tendered unless otherwise specified on the Instruction Form.
Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit the tender on your behalf before the expiration of the Offer.
The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any state in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such state or any administrative or judicial action pursuant thereto. The Purchaser may, in its discretion, take such action as it deems necessary to make the Offer to holders of Shares in such state.
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INSTRUCTION FORM
With Respect to the Offer To Purchase For Cash
All Outstanding Shares of Common Stock
of
THE GOLDFIELD CORPORATION
at
$7.00 NET PER SHARE
Pursuant to the Offer to Purchase dated December 1, 2020
by
FR UTILITY SERVICES MERGER SUB, INC.
a wholly owned subsidiary of
FR UTILITY SERVICES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED. |
The undersigned acknowledge(s) receipt of your letter and the enclosed Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), and the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal and, together with the Offer to Purchase, the Offer), in connection with the offer by FR Utility Services Merger Sub, Inc., a Delaware corporation (the Purchaser) and a wholly owned subsidiary of FR Utility Services, Inc., a Delaware corporation, which is an affiliate of First Reserve Fund XIV, L.P., to purchase all issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation, at a purchase price of $7.00 per Share, net to the seller in cash without interest and less any applicable withholding taxes, upon the terms and subject to the conditions of the Offer.
The undersigned hereby instruct(s) you to tender to the Purchaser the number of Shares indicated below or, if no number is indicated, all Shares held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. The undersigned understand(s) and acknowledge(s) that all questions as to the validity, form and eligibility (including time of receipt) and acceptance for payment of any tender of Shares made on the undersigneds behalf will be determined by the Purchaser in its sole discretion.
ACCOUNT NUMBER:
NUMBER OF SHARES BEING TENDERED HEREBY: SHARES*
The method of delivery of this document is at the election and risk of the tendering stockholder. If delivery is by mail, then registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery.
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Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered. |
Dated:
(Signatures(s)) |
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(Please Print Name(s)) |
Address: |
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(Include Zip Code) |
Area Code and Telephone Number: |
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Taxpayer Identification Number or Social Security Number: |
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Exhibit (a)(1)(G)
This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below). The Offer (as defined below) is made
solely by the Offer to Purchase (as defined below), dated December 1, 2020, and the related Letter of Transmittal (as defined below) together with any amendments or supplements thereto. The Offer is not being made to (nor will tenders be
accepted from or on behalf of) holders of Shares in any state in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, blue sky or other laws of such state or any administrative or judicial action
pursuant thereto. Purchaser (as defined below) may, in its discretion, take such action as it deems necessary to make the Offer to holders of Shares in such state.
Notice of Offer to Purchase for Cash
All Outstanding Shares of Common Stock
of
The Goldfield Corporation
at
$7.00 Net Per Share
by
FR Utility Services Merger Sub, Inc.
a wholly owned subsidiary of
FR Utility Services, Inc.
FR Utility Services Merger Sub, Inc. (Purchaser), a Delaware corporation and a wholly owned subsidiary of FR Utility Services, Inc. (Parent), a Delaware corporation, is offering to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share (Shares), of The Goldfield Corporation, a Delaware corporation (Goldfield), at a price of $7.00 per Share, net to the seller in cash, without interest thereon and less any applicable withholding taxes (the Offer Price), upon the terms and subject to the conditions set forth in the Offer to Purchase, dated December 1, 2020 (together with any amendments or supplements thereto, the Offer to Purchase), and in the related letter of transmittal (together with any amendments or supplements thereto, the Letter of Transmittal, and together with the Offer to Purchase, the Offer). Following the consummation of the Offer, and subject to the conditions described in the Offer to Purchase, Purchaser intends to effect the Merger described below.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 11:59 P.M., NEW YORK CITY TIME, ON DECEMBER 29, 2020, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.
The purpose of the Offer is for Parent, through Purchaser, to acquire control of, and all of the equity interests in, Goldfield. First Reserve Fund XIV, L.P. (or an affiliate thereof) is the controlling stockholder of both Parent and Purchaser.
The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of November 23, 2020, by and among Parent, Purchaser and Goldfield (together with any amendments or supplements thereto, the Merger Agreement). The Merger Agreement provides that after the purchase of Shares in the Offer, and subject to the satisfaction or waiver of certain conditions, Purchaser will as soon as practicable merge with and into Goldfield (the Merger) under the provisions of Section 251(h) of the Delaware General Corporation Law (the DGCL) without prior notice to, or any action by, any other stockholder of Goldfield, with Goldfield continuing as the surviving corporation in the Merger and as a wholly owned subsidiary of Parent. As a result of the Merger, each Share issued and outstanding immediately prior to the effective time of the Merger (other than Shares held in the treasury of Goldfield or owned by any direct or indirect wholly owned subsidiary of Goldfield and each Share owned by Parent, Purchaser or any direct or indirect wholly owned subsidiary of Parent, or by any stockholders of Goldfield who have properly exercised their appraisal rights under Section 262 of the DGCL) will at the effective time of the Merger be cancelled and converted into the right to receive an amount of cash equal to the Offer Price. As a result of the Merger, Shares will cease to be publicly traded. We expect the Merger to occur without a subsequent offering period within the meaning of Rule 14d-11 under the Securities Exchange Act of 1934, as amended (the Exchange Act). We do not expect there to be a significant period of time between the consummation of the Offer and the consummation of the Merger. The Merger Agreement is more fully described in Section 11The Merger Agreement; Other Agreements of the Offer to Purchase.
On November 22, 2020, after careful consideration, the board of directors of Goldfield (the Goldfield Board) unanimously (a) determined and declared that the Merger Agreement and the transactions contemplated thereby (the Transactions), including the Offer and the Merger, are advisable, fair to and in the best interests of Goldfield and Goldfields stockholders, (b) approved the Merger Agreement and the execution, delivery and performance by Goldfield of the Merger Agreement and the consummation of the Transactions, including the Offer and the Merger, on the terms and subject to the conditions set forth therein, (c) determined to recommend that the stockholders of Goldfield accept the Offer and tender their Shares to Purchaser pursuant to the Offer, and (d) agreed and authorized that the Merger be governed by Section 251(h) of the DGCL and consummated as soon as practicable following the time Purchaser, for the first time, irrevocably accepts for payment Shares validly tendered and not validly withdrawn pursuant to the Offer.
The Offer is not subject to any financing condition. The Merger Agreement provides that, among other things, the Offer is conditioned upon (a) there being validly tendered in the Offer and not withdrawn in accordance with the terms of the Offer, a number of Shares that, together with the number of Shares then owned by Parent and Purchaser (if any), represent at least one Share more than one-half of the number of all then outstanding Shares (excluding Shares tendered pursuant to guaranteed delivery procedures that have not been received, as such term is defined in Section 251(h) of the DGCL, by the depository for the Offer pursuant to such procedures) (the Minimum Condition), (b) the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, having expired or been terminated, (c) the absence of legal restraints on Purchasers ability to accept and pay for Shares tendered into the Offer, and (d) the satisfaction or waiver by Purchaser of the other conditions to the Offer, as set forth in the Merger Agreement (each such condition, an Offer Condition and, collectively, the Offer Conditions). Following the consummation of the Offer, Purchaser intends to effect the Merger as promptly as practicable, subject to the satisfaction of certain conditions.
Subject to the applicable rules and regulations of the U.S. Securities and Exchange Commission (SEC) and the terms, conditions and stockholder protections in the Merger Agreement, Purchaser expressly reserves the right to waive, in whole or in part, any Offer Condition or modify the terms of the Offer (including by increasing the Offer Price).
The offering period of the Offer will expire at 11:59 P.M., New York City time, on December 29, 2020, unless the Offer is extended or earlier terminated by Purchaser (the Expiration Date). Shares tendered pursuant to the Offer may be withdrawn by following the procedures set forth in Section 4Withdrawal Rights of the Offer to Purchase for withdrawing Shares in a timely manner, at any time on or prior to the Expiration Date, and, if not previously accepted for payment at any time, after January 30, 2021 pursuant to the SEC regulations.
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The Merger Agreement provides that Purchaser will, and Parent will cause Purchaser to, (i) extend the Offer for any minimum period required by any applicable rule, regulation, interpretation or position of the SEC or the staff thereof or NYSE American, and (ii) if, as of any then-scheduled Expiration Date, any Offer Condition is not satisfied and has not been waived by Parent or Purchaser (to the extent permitted thereunder), extend the Offer (x) on one or more occasions in consecutive increments of up to five business days each (or such longer or shorter period as the parties thereto may agree) or (y) if any then-scheduled Expiration Date is five or less business days before February 19, 2021 (the Outside Date), until 11:59 p.m., New York City Time, on the day before the Outside Date (or such other date and time as the parties thereto may agree), subject to certain limitations and consent rights of Goldfield. In any case, Purchaser will not be required or permitted to extend the Offer beyond February 19, 2021.
Any extension of the Offer, waiver, amendment of the Offer, delay in acceptance for payment or payment or termination of the Offer will be followed, as promptly as practicable, by public announcement thereof, the announcement in the case of an extension to be issued not later than 9:00 A.M., New York City time, on the next business day after the previously scheduled Expiration Date.
In order to tender your Shares in the Offer, you must (a) follow the procedures described in Section 3Procedures for Accepting the Offer and Tendering Shares of the Offer to Purchase or (b) if your Shares are held through a broker, dealer, commercial bank, trust company or other nominee (collectively, a Nominee), contact such Nominee and request that they effect the transaction for you and tender your Shares. For purposes of the Offer, Purchaser will be deemed to have accepted for payment and thereby purchased Shares validly tendered and not validly withdrawn if and when Purchaser gives oral or written notice to American Stock Transfer & Trust Company, LLC (Depositary and Paying Agent) of its acceptance for payment of those Shares pursuant to the Offer. Payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for those Shares with Depositary and Paying Agent, which will act as agent for the tendering stockholders for purposes of receiving payments from Purchaser and transmitting those payments to the tendering stockholders. Under no circumstances will interest be paid on the Offer Price for Shares, regardless of any extension of the Offer or any delay in payment for Shares.
For a withdrawal of Shares to be effective, a written notice of withdrawal from the Goldfield stockholder must be timely received by Depositary and Paying Agent at one of its addresses set forth on the back cover of the Offer to Purchase. Any notice of withdrawal must specify the name of the Goldfield stockholder, the number of Shares to be withdrawn, the name of the registered holder of the Shares to be withdrawn (if different from that of the person who tendered those Shares), a guaranteed signature (if applicable), the name and number of the account at The Depository Trust Company to be credited with the withdrawn Shares (for Shares tendered pursuant to book-entry transfer procedures), and the certificate number(s) (if any). If a stockholder tenders Shares by giving instructions to a Nominee, the stockholder must instruct such Nominee to arrange for the withdrawal of those Shares. Additional details with respect to withdrawal rights are described in Section 4Withdrawal Rights of the Offer to Purchase.
All questions as to validity of the surrender of any certificates representing Shares (including questions as to the proper completion or execution of any required documentation) and any notice of withdrawal, will be determined by Purchaser in its sole and absolute discretion which determination will be final and binding.
The receipt of cash as payment for the Shares pursuant to the Offer or the Merger will be a taxable transaction for United States federal income tax purposes. For a summary of the material United States federal income tax consequences of the Offer and the Merger, see the Offer to Purchase. Holders of Shares should consult their own tax advisors regarding the United States federal income tax consequences of the Offer and the Merger to them in light of their particular circumstances, as well as the tax consequences that may arise under other United States federal tax laws and the laws of any state, local or non-United States taxing jurisdiction and the possible effects of changes in such tax laws.
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The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.
Goldfield has provided Purchaser with its list of stockholders and with security position listings for the purpose of dissemination of the Offer to holders of Shares. The Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of Shares whose names appear on Goldfields stockholder list and will be furnished to Nominees whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agencys security position listing, for subsequent transmittal to beneficial owners of Shares.
The Offer to Purchase, the related Letter of Transmittal and Goldfields Solicitation/Recommendation Statement on Schedule 14D-9 (which contains the recommendation of the Goldfield Board and the reasons therefor) and the other documents to which such documents refer contain important information that should be read carefully before any decision is made with respect to the Offer.
Questions and requests for assistance and copies of the Offer to Purchase, the Letter of Transmittal and all other tender offer materials may be directed to Innisfree M&A Incorporated (Information Agent) at its address and telephone numbers set forth below and will be furnished promptly at Purchasers expense. Neither Parent nor Purchaser will pay any fees or commissions to any Nominee (other than to Depositary and Paying Agent and Information Agent) in connection with the solicitation of tenders of Shares pursuant to the Offer.
The Information Agent for the Offer is:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Stockholders may call toll free: (877) 717-3930
Banks and Brokers may call collect: (212) 750-5833
December 1, 2020
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Exhibit (a)(1)(H)
FOR IMMEDIATE RELEASE
First Reserve Announces Commencement of the Tender Offer for All Outstanding Shares of The Goldfield Corporation
STAMFORD, CT and HOUSTON, TXDecember 1, 2020First Reserve Fund XIV, L.P. (First Reserve) announced today that its affiliate, FR Utility Services Merger Sub, Inc. (Purchaser), has commenced the previously announced cash tender offer for all of the issued and outstanding shares of common stock of The Goldfield Corporation (NYSE American: GV) (Goldfield) at a price of $7.00 per share, net to the seller in cash without interest and less applicable withholding taxes. The tender offer is being made pursuant to the merger agreement (the Merger Agreement) announced by First Reserve and Goldfield on November 24, 2020, under which Purchaser will acquire Goldfield in a transaction valued at approximately $194 million. Purchaser and its parent company, FR Utility Services, Inc. (Parent), are wholly owned subsidiaries of First Reserve.
The $7.00 per share all-cash tender offer represents a premium of approximately 57 percent to the 30-day volume-weighted average price of $4.46 as of November 23, 2020, as well as a premium of approximately 64 percent over Goldfields closing share price on November 23, 2020, the last trading day before announcement of the Merger Agreement, and is being made pursuant to an Offer to Purchase, dated December 1, 2020.
A tender offer statement on Schedule TO that includes the Offer to Purchase and related Letter of Transmittal that set forth the terms and conditions of the tender offer will be filed today with the U.S. Securities and Exchange Commission (the SEC) by Purchaser. Additionally, Goldfield will file a solicitation/ recommendation statement on Schedule 14D-9 that includes the recommendation of Goldfields board of directors that Goldfield stockholders tender their shares in the tender offer.
The tender offer will expire on December 29, 2020, at 11:59 P.M., New York City time, unless the tender offer is extended in accordance with the terms of the Merger Agreement and the applicable rules and regulations of the SEC. The completion of the tender offer is conditioned upon, among other things, Goldfields stockholders tendering at least a majority of Goldfields outstanding shares, expiration or termination of any waiting period under the Hart-Scott-Rodino Antitrust Improvement Act of 1976 and other customary closing conditions.
If, as a result of the tender offer, the Purchaser holds shares that represent at least one share more than 50% of all the issued and outstanding shares of Goldfields common stock, and subject to the satisfaction or waiver of the remaining conditions set forth in the Merger Agreement, the Purchaser will, as soon as is practicable, merge with and into Goldfield, with Goldfield continuing as the surviving corporation and as a wholly owned subsidiary of Parent, under Section 251(h) of the Delaware General Corporation Law, without prior notice to, or any action by, any other stockholder of Goldfield. Upon completion of the transaction Goldfield will cease to be a publicly traded company.
Innisfree M&A Incorporated is acting as information agent for Parent in the tender offer. American Stock Transfer & Trust Company, LLC is acting as depositary and paying agent in the tender offer. Requests for documents and questions regarding the tender offer may be directed to Innisfree M&A Incorporated by telephone at (877) 717-3930 or banks and brokers may call (212) 750-5833.
About First Reserve
First Reserve is a leading global private equity investment firm exclusively focused on energy, including related industrial markets. With over 35 years of industry insight, investment expertise and operational excellence, the Firm has cultivated an enduring network of global relationships and raised more than $32 billion of aggregate capital since inception. First Reserve has completed approximately 700 transactions (including platform investments and add-on acquisitions), creating several notable energy companies throughout the Firms history. Its portfolio companies have operated on six continents, spanning the energy spectrum from upstream oil and gas to midstream and downstream, including resources, equipment and services, and associated infrastructure. Please visit www.firstreserve.com for further information.
Forward-Looking Statements
Any forward-looking statements, including, but not limited to, statements regarding the proposed transaction between First Reserve and Goldfield, the expected timetable for completing the transaction, strategic and other potential benefits of the transaction, and other statements about First Reserve or Goldfield managements future expectations, beliefs, goals, plans or prospects, are subject to risks and uncertainties such as those described in Goldfields periodic reports on file with the SEC. These statements speak only as of the date of this press release and are based on First Reserves and Goldfields current plans and expectations and involve risks and uncertainties that could cause actual future events or results to be different from those described in or implied by such forward-looking statements, including risks and uncertainties regarding: changes in financial markets; changes in economic, political or regulatory conditions; and changes in facts and circumstances and other uncertainties concerning the proposed transaction. Further information about these matters can be found in Goldfields SEC filings. First Reserve and Goldfield caution investors not to place considerable reliance on the forward-looking statements contained in this press release. Except as required by applicable law or regulation, First Reserve and Goldfield do not undertake any obligation to update or revise any of their forward-looking statements to reflect future events or circumstances.
Important additional information will be filed with the SEC
This press release is neither an offer to purchase nor a solicitation of an offer to sell securities, nor is it a substitute for the tender offer materials that Purchaser will file with the SEC upon commencement of the tender offer. This communication is for informational purposes only. The tender offer transaction commenced by affiliates of First Reserve is being made pursuant to a tender offer statement on Schedule TO (including the Offer to Purchase, a related Letter of Transmittal and other offer materials) to be filed by such affiliates of First Reserve with the SEC. In addition, Goldfield will file a Solicitation/Recommendation Statement on Schedule 14D-9 with the SEC related to the tender offer. PRIOR TO MAKING ANY DECISION REGARDING THE TENDER OFFER, GOLDFIELD STOCKHOLDERS ARE STRONGLY ADVISED TO READ THE SCHEDULE TO (INCLUDING THE OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND OTHER OFFER MATERIALS) AND THE RELATED SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9, AS THEY MAY BE AMENDED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE. Goldfield stockholders will be able to obtain the Schedule TO (including the Offer to Purchase, a related Letter of Transmittal and other offer materials) and the related Solicitation/Recommendation Statement on Schedule 14D-9 at no charge on the SECs website at www.sec.gov. In addition, the Schedule TO (including the Offer to Purchase, a related Letter of Transmittal and other offer materials) and the related Solicitation/Recommendation Statement on Schedule 14D-9 may be obtained free of charge from Innisfree M&A Incorporated, 501 Madison Avenue, 20th Floor, New York, New York 10022, Telephone Number (877) 717-3930 or banks and brokers may call (212) 750-5833, the information agent for the tender offer.
Media Contact:
First Reserve Media:
Jonathan Keehner / Julie Oakes
Joele Frank, Wilkinson Brimmer Katcher
212.355.4449
joakes@joelefrank.com
Exhibit (b)(1)
Executed Version
CITIZENS BANK, N.A. | SUMITOMO MITSUI BANKING | |
28 State Street | CORPORATION | |
Boston, MA 02109 | 277 Park Avenue | |
New York, New York 10172 |
Highly Confidential
November 23, 2020
The Borrower (as defined below)
c/o FRC Founders Corporation
290 Harbor Drive
Stamford, CT 06920
Attention: Joshua R. Weiner
Project Harlan
Commitment Letter
Ladies and Gentlemen:
FR Utility Services Merger Sub, Inc., a Delaware corporation (Borrower or you), has advised Citizens Bank, N.A. (Citizens) and Sumitomo Mitsui Banking Corporation (SMBC and together with Citizens, the Initial Lenders, we or us) that Borrower intends to directly or indirectly acquire certain shares of a company identified as Project Harlan, a company incorporated in Delaware (the Company), and to consummate the other Transactions described in Exhibit A hereto. This Commitment Letter and Exhibits A, B and C hereto, are collectively referred to as the Commitment Letter. Capitalized terms used in this Commitment Letter but not defined herein shall have the meanings given to them in the exhibits attached hereto.
In connection with the Transactions, (x) Citizens commits to Borrower to provide (i) 50% of the amount of the Revolving Facility and (ii) 50% of the amount of the Term Facility and (y) SMBC commits to Borrower to provide (i) 50% of the amount of the Revolving Facility and (ii) 50% of the amount of the Term Facility.
1. |
Conditions Precedent |
Subject to the Certain Funds Provision (as defined below), the commitments of the Initial Lenders hereunder and their agreements to perform the services described herein are subject solely to the conditions expressly set forth in Exhibit B under the heading Conditions Precedent to Initial Borrowing and the Additional Conditions Precedent in Exhibit C.
Notwithstanding anything in this Commitment Letter (including each of the Exhibits attached hereto), the Fee Letter, the Senior Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the Transactions to the contrary, (i) the only representations and warranties the accuracy of which shall be a condition to availability of the Senior Facilities on the Closing Date, shall be (a) the Specified Representations (as defined below) made by Holdings, the Borrower and the
other entities formed by you for the purpose of consummating the Transactions (the Initial Obligors) in the Senior Facilities Documentation and (b) the representations and warranties made by or with respect to the Company in the Acquisition Agreement that are material to the interests of the Lenders (but only to the extent that you or any of your affiliates have the right to terminate your obligations under the Acquisition Agreement or a right not to consummate the Acquisition as a result of a breach of such representations and warranties) (the representations in this clause (b), the Specified Acquisition Agreement Representations) and (ii) the terms of the Senior Facilities Documentation shall be in a form such that they do not impair availability of the Senior Facilities on the Closing Date if the conditions in the immediately preceding paragraph of this Commitment Letter are satisfied (it being understood that to the extent any lien search or Collateral (including the creation, perfection or priority of any security interest) is not or cannot be provided on the Closing Date (other than (1) Uniform Commercial Code, tax and judgment lien searches, (2) the pledge and perfection of a security interest in domestic assets with respect to which a lien may be perfected by the filing of financing statements under the Uniform Commercial Code or (3) to the extent applicable, the delivery of equity certificates of the Initial Obligors and related stock powers) after use of commercially reasonable efforts to do so then the provision of any such lien search and/or Collateral shall not constitute a condition precedent to the availability of the Senior Facilities on the Closing Date, but a perfected security interest shall instead be required promptly after the Closing Date (and in any event within 90 days plus any extensions granted by the Administrative Agents, in their reasonable discretion) pursuant to arrangements to be mutually agreed. The only conditions to funding of the Senior Facilities on the Closing Date are set forth in Exhibit C and in the immediately preceding paragraph of this Commitment Letter, and upon satisfaction (or waiver by the Initial Lenders) of such conditions, the initial funding of the Senior Facilities shall occur. For purposes hereof, Specified Representations means the representations and warranties of the Initial Obligors set forth in the respective Senior Facilities Documentation relating to incorporation or formation of the Initial Obligors; organizational status of the Initial Obligors; organizational power and authority of the Initial Obligors (as to execution, delivery and performance by the Initial Obligors of the Senior Facilities Documentation); due authorization, execution, delivery and performance of the Senior Facilities Documentation against the Initial Obligors; enforceability of the Senior Facilities Documentation; solvency as of the Closing Date (after giving effect to the Transactions) of the Borrower and its subsidiaries on a consolidated basis; no conflicts of the Senior Facilities Documentation (or transactions contemplated thereby) with charter documents of the Initial Obligors; Federal Reserve margin regulations; the Investment Company Act; Patriot Act; use of proceeds not violating OFAC, FCPA and other anti-terrorism laws, anti-money laundering and anti-corruption laws; and the creation, validity and the perfection of security interests in the proposed Collateral (subject to permitted liens and the foregoing provisions of this paragraph relating to collateral (including the creation, perfection or priority of any security interest)). This paragraph, and the provisions herein, shall be referred to as the Certain Funds Provision.
2. |
Commitment Termination |
The Initial Lenders commitments set forth in this Commitment Letter will terminate on the earliest of (i) the termination of the Acquisition Agreement in accordance with its terms, (ii) the consummation of the Acquisition with or without the funding of the Senior Facilities, (iii) the date that is five Business Days after the Outside Date (as defined in the Acquisition Agreement).
3. |
Syndication |
Each Initial Lender reserves the right, before or after the execution of the Senior Facilities Documentation, to syndicate all or a portion of its commitments to one or more other financial institutions or other lenders reasonably acceptable to you (such acceptance not to be unreasonably withheld or delayed) and that will become parties to the Senior Facilities Documentation pursuant to syndications to
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be managed by the Initial Lenders in consultation with you (the financial institutions or other lenders becoming parties to the Senior Facilities Documentation with respect to the Senior Facilities being collectively referred to herein as the Lenders); provided, that, notwithstanding each Initial Lenders right to syndicate the Senior Facilities and receive commitments with respect thereto, no Initial Lender may assign all or any portion of its commitments hereunder until after the Closing Date and, unless you agree in writing, each Initial Lender shall retain exclusive control over all rights and obligations with respect to its commitments, including all rights with respect to consents, modifications, waivers and amendments, until the Closing Date has occurred. Notwithstanding the foregoing, the Initial Lenders will not syndicate to those banks, financial institutions and other institutional lenders separately identified in writing by you or the Sponsor to us prior to the date hereof (including any of their affiliates) (collectively Prohibited Lenders). You understand that each of the Senior Facilities may be separately syndicated, the Initial Lenders intend to commence such syndication efforts promptly and the Initial Lenders may elect to appoint, with your consent, one or more agents to assist in such syndication efforts. It is agreed that, notwithstanding any such appointment, Citizens shall have left side designation and left placement on all marketing materials in connection with the Senior Facilities and will hold the leading roles and responsibilities conventionally understood to be associated with such respective placements.
Citizens will act as the administrative agent for the Senior Facilities, and Citizens and SMBC will act as joint lead arrangers and joint bookrunners with respect to the Senior Facilities and, subject to the preceding paragraph, will manage all aspects of the syndication of the Senior Facilities in consultation with you, including the timing of all offers to potential Lenders, the determination of all amounts offered to potential Lenders, the selection of Lenders, the allocation of commitments among the Lenders and the assignment of any titles and the compensation to be provided to the Lenders. The Initial Lenders in such capacities, will perform the duties and exercise the authority customarily performed and exercised by them in such roles.
You shall take all actions that the Initial Lenders may reasonably request to assist them (and, to the extent not in contravention of the Acquisition Agreement, use commercially reasonable efforts to cause the Company to assist them) in forming a syndicate consistent with the terms hereof and reasonably acceptable to the Initial Lenders and you for each of the Senior Facilities. Your assistance in forming each such syndicate shall include but not be limited to: (i) making available appropriate senior management, representatives and advisors of the Sponsor, and Borrower and the Company (limited, in the case of the Company, to the extent not in contravention of the Acquisition Agreement, to using commercially reasonable efforts to cause the Company to make available) to participate in informational meetings, conference calls and other direct contact with potential Lenders at such times and places as the Initial Lenders may reasonably request; (ii) ensuring that the syndication efforts benefit from your, the Sponsors and the Borrowers lending relationships; (iii) assisting (including, to the extent not in contravention of the Acquisition Agreement, using your commercially reasonable efforts to cause your affiliates and advisors and the Company and its advisors to assist) in the preparation of a confidential information memorandum for the Senior Facilities and other marketing materials to be used in connection with the syndication, (iv) promptly providing (and, to the extent not in contravention of the Acquisition Agreement, use commercially reasonable efforts to cause the Company to provide) the Initial Lenders with all readily available information reasonably deemed necessary by it to complete a Successful Syndication, and (v) your ensuring that until the earlier of (a) the date that is 60 days after the Closing Date and (b) a Successful Syndication (as defined in the Fee Letter referred to below), there shall be no competing issues of debt securities or commercial bank or other credit facilities of you or any of your subsidiaries being offered, placed, announced or arranged without the consent of the Initial Lenders and your use of commercially reasonable efforts to ensure that there are no competing issues of debt securities or commercial bank or other credit facilities of the Company (other than the Senior Facilities, any indebtedness permitted to be incurred pursuant to the Acquisition Agreement and any ordinary course capital lease, purchase money debt and equipment financings) being offered, placed, announced or arranged without the consent of the Initial Lenders.
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You hereby acknowledge that (a) the Initial Lenders will make available information and financial projections provided by or on behalf of the Borrower, the Company and their respective subsidiaries and affiliates (Borrower Materials) to the proposed syndicate of Lenders and (b) certain of the Lenders may be public side Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to the Borrower, the Company their respective subsidiaries and affiliates or their respective securities) (each, a Public Lender). If reasonably requested, you will assist us in preparing an additional version of the confidential information memorandum to be used by Public Lenders. It is understood that in connection with your assistance described above, authorization letters from the Borrower will be included in any confidential information memorandum that authorize distribution of the confidential information memorandum to prospective Lenders, represent that the public-side version does not include material non-public information about the Borrower, the Company and their respective subsidiaries and affiliates or their respective securities, and exculpate you, the Company, us and the Sponsor and your, their and our respective subsidiaries and affiliates with respect to any liability related to the use of the confidential information memorandum or any related marketing material by the recipients thereof. You acknowledge and agree that the following documents may be distributed to Public Lenders: (a) drafts and final versions of the Senior Facilities Documentation; (b) administrative materials for prospective Lenders such as lender meeting invitations and funding and closing memoranda; and (c) term sheets and notification of changes in the terms and conditions of the Senior Facilities. In addition, at our request, you shall identify that portion of any Borrower Materials that may be distributed to the Public Lenders and that (x) all such Borrower Materials shall be clearly and conspicuously marked PUBLIC which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page thereof, (y) by marking Borrower Materials PUBLIC, the Borrower and the Company shall be deemed to have authorized the Initial Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower, the Company or any of their respective affiliates or their respective securities for purposes of United States Federal and state securities laws and (z) the Initial Lenders shall be entitled to treat any Borrower Materials that are not marked PUBLIC as being suitable only for distribution to those proposed Lenders that are not Public Lenders. You acknowledge that information and documents relating to the Senior Facilities (including Borrower Materials) may be transmitted through Intralinks, the internet or similar electronic transmission systems, and you acknowledge that neither the Initial Lenders nor any of their respective affiliates will be responsible or liable to you or any other person for damages arising from use of information or other materials obtained through Intralinks, the internet or similar electronic transmission systems, except to the extent caused by such Initial Lenders gross negligence, bad faith or willful misconduct, in each case, to the extent determined in a final, non-appealable judgment by a court of competent jurisdiction.
You agree that no additional agents, co-agents or lead arrangers will be appointed, or other titles conferred, without the consent of the Initial Lenders (such consent not to be unreasonably withheld or delayed). You agree that no Lender will receive any compensation of any kind for its participation in any Senior Facility, except as expressly provided in this Commitment Letter or the Fee Letter.
Notwithstanding anything to the contrary contained herein (but without limiting your obligations with respect to assistance with syndication as set forth herein or the conditions set forth in the Additional Conditions Precedent in Exhibit C), neither the commencement nor the completion of such syndication is a condition to the commitments hereunder or the funding of the Senior Facilities on the Closing Date.
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4. |
Fees |
In addition to the fees described in this Commitment Letter, you will pay (or cause to be paid) the fees set
forth in the letter agreement dated the date hereof (the Fee Letter) between you and the Initial Lenders and such fees shall be nonrefundable when paid. Except for any fee that may be required in connection with an Alternate Transaction (as defined in the Fee Letter), no fees shall in any event become payable unless the Closing Date occurs.
5. |
Indemnification |
You agree to indemnify and hold harmless the Initial Lenders, the Lead Arrangers, each agent (including the Administrative Agent) and each of their respective affiliates, successors and assigns and each of their respective officers, directors, employees, agents, advisors, representatives and controlling persons (each, an Indemnified Person) from and against any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and disbursements of a single counsel to the Indemnified Persons taken as a whole (and, if reasonably necessary, a single local counsel for all Indemnified Persons taken as a whole in each relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction to the affected Indemnified Persons similarly situated taken as a whole) and other reasonable out-of-pocket expenses incurred in connection with investigating or defending an investigation, litigation or proceeding), joint or several, that may be incurred by or asserted or awarded against any Indemnified Person, regardless of whether any such Indemnified Person is a party thereto or whether an investigation, litigation or proceeding is brought by a third party or by you or any of your affiliates (including, without limitation, in connection with any investigation, litigation or proceeding or the preparation of any defense in connection therewith) in each case arising out of or in connection with or relating to this Commitment Letter or the Senior Facilities Documentation or the transactions contemplated hereby or thereby, or any use made or proposed to be made with the proceeds of the Senior Facilities, except to the extent such claim, damage, loss, liability or expense resulted, as determined in a final non-appealable judgment by a court of competent jurisdiction, from such Indemnified Persons (or such Indemnified Persons affiliates, successors and assigns and such Indemnified Persons officers, directors, employees, agents, advisors, representatives or controlling persons) gross negligence, bad faith, material breach of this Commitment Letter or willful misconduct. In the case of an investigation, litigation or proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective, whether or not such investigation, litigation or proceeding is brought by you, any of your respective securityholders or creditors, an Indemnified Person or any other person, or an Indemnified Person is otherwise a party thereto and whether or not the transactions contemplated hereby are consummated.
In the event that an Indemnified Person is requested or required to appear as a witness in any action brought by or on behalf of or against you or any of your subsidiaries or affiliates in which such Indemnified Person is not named as a defendant, you agree to reimburse such Indemnified Person for all reasonable expenses incurred by it in connection with such Indemnified Persons appearing and preparing to appear as such a witness, including, without limitation, the reasonable fees and expenses of its legal counsel.
No Indemnified Person shall have any liability (whether in contract, tort or otherwise) to you, the Company or any of your or their securityholders or creditors for or in connection with the transactions contemplated hereby, except to the extent such liability resulted from such Indemnified Persons gross negligence, bad faith, material breach of this Commitment Letter or willful misconduct, in each case, to the extent determined by a court of competent jurisdiction in a final and non-appealable judgment.
In no event, however, shall you or any Indemnified Person be liable for any special, indirect, consequential or punitive damages (including, without limitation, any trading loss or any loss of profits, business or anticipated savings) in connection with your or its activities related to the Senior Facilities or this Commitment Letter; provided that nothing in this paragraph shall limit your indemnification obligations hereunder to the extent such special, indirect, consequential or punitive damages are incurred by an Indemnified Person in any third party claim in connection with which such Indemnified Person is entitled to indemnification hereunder.
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6. |
Costs and Expenses |
You shall, if the Acquisition is consummated and borrowings are made under the Senior Facilities, pay or reimburse the Initial Lenders, the Lead Arrangers and the Administrative Agent on demand for all reasonable costs and expenses (including, without limitation, expenses of each partys due diligence investigation, consultants fees (to the extent any such consultant has been retained with your prior consent), syndication expenses and travel expenses) incurred by the Initial Lenders, the Lead Arrangers and the Administrative Agent (whether incurred before or after the date hereof) in connection with the Senior Facilities and the preparation, negotiation, execution and delivery of this Commitment Letter, the Senior Facilities Documentation and any security arrangements in connection therewith, including the reasonable fees and disbursements of one counsel (and, if reasonably necessary, a single local counsel in each relevant jurisdiction). You further agree to pay all reasonable costs and expenses of the Initial Lenders, the Lead Arrangers and the Administrative Agent (including, without limitation, reasonable fees and disbursements of one counsel (and, if reasonably necessary, a single local counsel for the Initial Lenders, the Lead Arrangers and the Administrative Agent, taken as a whole, in each relevant jurisdiction and, solely in the case of a conflict of interest, one additional counsel in each relevant jurisdiction) incurred in connection with the enforcement of any of their rights and remedies hereunder.
7. |
Confidentiality |
By accepting delivery of the Fee Letter and this Commitment Letter, you agree that each of the Fee Letter, and prior to your acceptance hereof, this Commitment Letter are for your confidential use only and that neither its existence nor its terms nor the activities of the Initial Lenders pursuant hereto or thereto will be disclosed by you, directly or indirectly, to any person other than the Sponsor and your and the Sponsors respective officers, directors, employees, accountants, attorneys and other advisors, and then only on a confidential and need to know basis in connection with the transactions contemplated hereby. Notwithstanding the foregoing, (i) you may disclose this Commitment Letter (and, to the extent redacted in a manner reasonable acceptable to the Initial Lenders, the Fee Letter) to the Company and its owners, officers, directors, employees, accountants, attorneys and other advisors on a confidential and need to know basis in connection with the Acquisition, (ii) you may file a copy of this Commitment Letter (but not the Fee Letter) in any public record in which it is required by law to be filed, (iii) you may make public disclosures of the terms and conditions hereof to the extent such terms and conditions have become publicly available as a result of disclosures thereof by persons other than you, (iv) you may make such other public disclosures of the terms and conditions hereof as you are required by law or regulation or requested by any governmental agency or other regulatory authority to make and (v) you may disclose the aggregate fees payable in connection with the Transactions as part of Projections (as defined below), pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Senior Facilities or in any public or regulatory filing requirement relating to the Transactions.
Each Initial Lender shall use all confidential information provided to it by or on behalf of you hereunder solely for the purpose of providing the services which are the subject of this Commitment Letter and otherwise in connection with the Transactions and shall treat confidentially all such information; provided, however, that nothing herein shall prevent any Initial Lender from disclosing any such information (i) pursuant to the order of any court or administrative agency or in any pending legal or administrative proceeding, or otherwise as required by applicable law, rule or regulation or compulsory legal process (in which case such Initial Lender agrees to inform you promptly thereof prior to such
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disclosure to the extent permitted by applicable law, rule or regulation), (ii) upon the request or demand of any regulatory authority having jurisdiction over such Initial Lender or any of its affiliates (in which case such Initial Lender agrees to inform you promptly thereof prior to such disclosure, except with respect to any audit or examination conducted by bank accountants or any governmental authority exercising examination or regulatory authority and unless such Initial Lender is prohibited by applicable law from, or is requested by such regulatory authority to refrain from, so informing you or except in connection with any request as part of a regulatory examination), (iii) to the extent that such information becomes publicly available other than by reason of improper disclosure by the Initial Lenders or any of their respective affiliates, officers, directors, employees, accountants, attorneys and other advisors, (iv) to each Initial Lenders officers, directors, employees, accountants, attorneys and other advisors (collectively Representatives) who need to know such information in connection with the Transactions and then only on a confidential and need to know basis in connection with the transactions contemplated hereby, (v) to any affiliates of the Initial Lenders and their respective Representatives who need to know such information in connection with the Transactions and then only on a confidential and need to know basis in connection with the transactions contemplated hereby, (vi) to potential or prospective Lenders or participants and their Representatives, in each case who are advised of the confidential nature of such information (provided that any such disclosure shall be made in accordance with the standard syndication or marketing process for the Initial Lenders or customary market standards for dissemination of such type of information), (vii) to the extent that such information is received by such Initial Lender from a third party that is not to such Initial Lenders knowledge subject to confidentiality obligations to you, the Company or the Sponsor, (viii) to the extent that such information is independently developed by such Initial Lender or its affiliates, in each case, so long as not based on information obtained in a manner that would otherwise violate this provision, (ix) for purposes of establishing a due diligence defense, (x) to any of your direct or indirect contractual counterparties to any credit default swap or similar derivative product (to the extent related to the Transactions) and their Representatives and (xi) to enforce its rights hereunder and under the Fee Letter. The provisions of this paragraph shall automatically terminate upon the earlier of (i) the execution and delivery of the Senior Facilities Documentation and (ii) the first anniversary hereof.
Each Initial Lender reserves the right to employ the services of its affiliates in providing services contemplated by this letter and to allocate, in whole or in part, to such affiliates certain fees payable to such Initial Lender in such manner as such Initial Lender and such affiliates may agree in their sole discretion (it being understood that each such affiliate shall keep any information given to it in connection with any services it may provide pursuant to this sentence confidential). You acknowledge that the Initial Lenders may share with any of their respective affiliates, and such affiliates may share with the respective Initial Lender, any information related to the Transactions, you, the Company, any of its subsidiaries or any of the matters contemplated hereby solely in connection with the Transactions (it being understood that each such affiliate shall keep such information given to it pursuant to this sentence confidential).
The Initial Lenders may, subject to your written prior consent (not to be unreasonably withheld, delayed or conditioned), use information related to the syndication and arrangement of the Senior Facilities in connection with marketing, press releases or other transactional announcements or updates provided to investor or trade publications. You agree that you will permit each Initial Lender to review and approve any reference to it or any of its affiliates in connection with the Senior Facilities or the Transactions contained in any press release or similar public disclosure prior to public release.
Each Initial Lender may, subject to your written prior consent (not to be unreasonably withheld, delayed or conditioned), at its expense, publicly announce as it may choose the capacities in which it or its affiliates have acted hereunder. Any notice given pursuant hereto shall be mailed or hand delivered in writing to you at your address set forth on page one hereof.
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8. |
Representations and Warranties |
You represent and warrant that (to the best of your knowledge, in the case of information regarding the Company or any of their respective subsidiaries prior to the Closing Date), (i) all written information (other than Projections and information of a general economic or industry nature), taken as a whole, that has been or will hereafter be made available to the Initial Lenders, any Lender or any potential Lender by or on behalf of you, the Company or any of your or their respective representatives in connection with the transactions contemplated hereby is and will be, when furnished and taken as a whole, complete and correct in all material respects and does not and will not, when furnished and taken as a whole, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements were or are made and (ii) all written financial projections (the Projections), if any, that have been or will be prepared by or on behalf of you, the Company or any of your or their respective representatives and made available to the Initial Lenders, any Lender or any potential Lender have been or will be prepared in good faith based upon assumptions that are reasonable at the time made and at the time the related financial projections are made available to the Initial Lenders or any such Lender or potential Lender (it being understood that the Projections are subject to significant uncertainties and contingencies, many of which are beyond the control of you, Sponsor and the Company, and that no assurances can be given that such Projections will be realized). If, at any time from the date hereof until the execution and delivery of the Senior Facilities Documentation and, if reasonably requested by the Initial Lenders, for a reasonable period thereafter (not to exceed 60 days) necessary to complete a Successful Syndication (as defined in the Fee Letter), any of the representations and warranties in the preceding sentence would be incorrect in any material respect if the information or Projections were being furnished, and such representations and warranties were being made, at such time, then you will use reasonable efforts to promptly supplement the information and the financial projections so that such representations and warranties will be correct in all material respects under those circumstances.
In issuing this Commitment Letter and in arranging the Senior Facilities including the syndication of the Senior Facilities, each Initial Lender will be entitled to use, and to rely on the accuracy of, the information (including the Projections) furnished to them by or on behalf of you, the Company or any of your or their respective representatives without responsibility for independent verification thereof.
9. |
No Third Party Reliance; Sharing Information |
The agreements of the Initial Lenders hereunder and of any Lender that issues a commitment to provide financing under the Senior Facilities are made solely for your benefit and may not be relied upon or enforced by any other person. This Commitment Letter is not intended to create a fiduciary relationship among the parties hereto.
You hereby acknowledge and agree that in connection with all aspects of the Transactions, you and the Initial Lenders and any of their respective affiliates through which the Initial Lenders may be acting in any capacity with respect to the Senior Facilities (each an Initial Lender Transaction Affiliate) have an arms length business relationship that creates no fiduciary duty on the part of any Initial Lender or any Initial Lender Transaction Affiliate and each expressly disclaims any fiduciary relationship.
In connection with all aspects of each transaction contemplated by this Commitment Letter and the Fee Letter, you acknowledge and agree, and acknowledge your affiliates understanding, that: (a) (i) the arranging and other services described herein regarding the Senior Facilities are arms-length commercial transactions between you and your affiliates, on the one hand, and the Initial Lenders, on the other hand, (ii) the Initial Lenders have not provided any legal, accounting, financial advisory, regulatory or tax advice with respect to the Transactions and the other transactions contemplated by this Commitment
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Letter and the Fee Letter and you have consulted your own legal, accounting, financial advisory, regulatory and tax advisors to the extent you have deemed it appropriate to do so, and (iii) you are capable of evaluating, and understand and accept, the terms, risks and conditions of the transactions contemplated hereby; and (b) (i) each of the Initial Lenders has been, is, and will be acting solely as a principal and, except as otherwise expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for you, any of your affiliates or any other person or entity and (ii) no Initial Lender has any obligation to you or your affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein.
You acknowledge that the Initial Lenders and their respective affiliates may provide debt financing, equity capital or other services (including financial advisory services) to parties whose interests regarding the transactions described herein or otherwise may conflict with your interests. Consistent with each Initial Lenders policy to hold in confidence the affairs of its clients, no Initial Lender will furnish confidential information obtained from you or your affiliates to any of its other clients. Furthermore, the Initial Lenders will not use in connection with the transactions contemplated hereby, or furnish to you, confidential information obtained by any such Initial Lender or its affiliates from any other person.
10. |
Assignments |
You may not assign this Commitment Letter, the Fee Letter or the Initial Lenders commitments hereunder without the Initial Lenders prior written consent (other than, (i) occurring as a matter of law pursuant to, or otherwise substantially simultaneously with (and subject to the consummation of), the Transactions on the Closing Date, in each case to one or more of the Company and/or any other domestic subsidiary of the Company, or (ii) by you to any wholly-owned U.S. domestic shell entity established in connection with the Transactions and controlled, directly or indirectly, by the Sponsor, that shall (directly or indirectly through one or more wholly-owned U.S. domestic subsidiaries) own the Company and the Borrower, with all obligations and liabilities of you hereunder and under the Fee Letter being assumed by such entity upon the effectiveness of such assignment), and any such attempted assignment without such consent shall be void. The Initial Lenders rights under this Commitment Letter in respect of the arrangement and syndication of the Senior Facilities may not be assigned except as set forth in Section 3 above, and any attempted assignment not in accordance with such provision shall be void.
The Commitment Letter and the Exhibits hereto and the Fee Letter are the only agreements that have been entered into among the parties hereto with respect to the Senior Facilities and set forth the entire understanding of the parties hereto with respect thereto and supersede all prior communications, written or oral, with respect thereto. This Commitment Letter is intended to be solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the Indemnified Persons, except that each Initial Lender may perform the duties and activities described hereunder through any of their respective affiliates and the provisions of Section 5 shall apply with equal force and effect to any of such affiliates so performing any such duties or activities.
11. |
Amendments |
This Commitment Letter may not be amended or any provision hereof waived or modified except by an instrument in writing signed by each party hereto.
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12. |
Governing Law, Etc. |
This Commitment Letter shall be governed by, and construed in accordance with, the laws of the State of New York; provided that notwithstanding the foregoing and the remaining provisions of the Commitment Letter and the Fee Letter, it is understood and agreed that (a) the interpretation of the applicable definition of Material Adverse Effect (or equivalent term as defined in the Acquisition Agreement) and the determination as to whether an applicable Material Adverse Effect has occurred, in each case, for purposes of the condition described in Exhibit C hereto relating to the occurrence of an applicable Material Adverse Effect, (b) the determination of the accuracy of any Specified Acquisition Agreement Representations and whether as a result of any inaccuracy thereof you have the right to terminate your obligations under the Acquisition Agreement and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement and claims or disputes arising out of such determination or any aspect of such determination, in each case, shall be governed by, and construed and interpreted in accordance with, the laws of the State of Delaware (and, as to matters governing the procedures, validity and effect of the mergers and appraisal rights thereunder contemplated in the Acquisition Agreement, the General Corporation Law of the State of Delaware), regardless of the laws that might otherwise govern under applicable principles of conflicts of laws thereof.
This Commitment Letter may be executed in any number of counterparts, each of which, when so executed, shall be deemed to be an original and all of which, taken together, shall constitute one and the same Commitment Letter. Delivery of an executed counterpart of a signature page to this Commitment Letter by telecopier or other electronic communications shall be as effective as delivery of a manually executed counterpart of this Commitment Letter. Sections 3, 4, 5, 7, 8, 9, 12 and 13 and the last sentence of Section 6 shall survive the termination or expiration of the Initial Lenders commitments hereunder, except that Section 3 shall only survive if the Closing Date occurs.
The words execution, signed, signature, and words of similar import herein or the Fee Letter or any notice, certificate, document, agreement or instrument in respect thereof shall be deemed to include electronic or digital signatures or the keeping of records in electronic form, each of which shall be of the same effect, validity and enforceability as manually executed signatures or a paper-based recordkeeping system, as the case may be, to the extent and as provided for under applicable law, including the Electronic Signatures in Global and National Commerce Act of 2000, the Electronic Signatures and Records Act of 1999, or any other similar state Laws based on the Uniform Electronic Transactions Act.
Each of the parties hereto hereby irrevocably and unconditionally (i) submits, for itself and its property, to the exclusive jurisdiction of any New York State court or Federal court of the United States of America sitting in the Borough of Manhattan, and any appellate court from any thereof, in any action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby, and agrees that all claims in respect of any such action or proceeding shall be brought, heard and determined only in such New York State court or, to the extent permitted by law, in such Federal court, (ii) waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Commitment Letter, the Fee Letter or the transactions contemplated hereby or thereby in any New York State court or in any such Federal court, (iii) waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court and (iv) agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. You agree that service of any process, summons, notice or document by registered mail addressed to you shall be effective service of process for any suit, action or proceeding brought in any such court.
We hereby notify you that, pursuant to the requirements of the USA Patriot Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (the Patriot Act), and 31 C.F.R. § 1010.230 (as amended from time to time, the Beneficial Ownership Regulation) , we are required to obtain, verify and record information that identifies you and each Guarantor, which information includes names and addresses and other information that will allow us to identify you, and each Guarantor in accordance with the Patriot Act and the Beneficial Ownership Regulation.
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13. |
Waiver of Jury Trial |
Each party hereto irrevocably waives all right to trial by jury in any action, proceeding or counterclaim (whether based on contract, tort or otherwise) brought by or on behalf of any party arising out of or relating to this Commitment Letter or the transactions contemplated hereby or the actions of the parties hereto in the negotiation, performance or enforcement hereof.
Please indicate your acceptance of the provisions hereof by signing the enclosed copy of this Commitment Letter and the Fee Letter and returning them to the Initial Lenders or its counsel (on behalf of the Initial Lenders) on or before 5:00 p.m. (New York City time) on November 23, 2020, the time at which the commitments of the Initial Lenders set forth above (if not so accepted prior thereto) will terminate.
[Signature Pages Follow]
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If you elect to deliver this Commitment Letter by fax, please arrange for the executed original to follow by next-day courier.
Very truly yours, | ||
CITIZENS BANK, N.A. | ||
By: |
/s/ David M. Henderson |
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Name: David M. Henderson | ||
Title: Managing Director | ||
SUMITOMO MITSUI BANKING CORPORATION | ||
By: |
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Name: | ||
Title: |
[SIGNATURE PAGE COMMITMENT LETTER]
If you elect to deliver this Commitment Letter by fax, please arrange for the executed original to follow by next-day courier.
Very truly yours, | ||
CITIZENS BANK, N.A. | ||
By: |
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Name: | ||
Title: |
SUMITOMO MITSUI BANKING CORPORATION | ||
By: |
/s/ Sean Obranski |
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Name: Sean Obranski | ||
Title: Managing Director |
[SIGNATURE PAGE COMMITMENT LETTER]
Accepted and agreed to as of the date first written above: |
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FR UTILITY SERVICES MERGER SUB, INC. | ||
By: |
/s/ Jeffrey K. Quake |
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Name: Jeffrey K. Quake | ||
Title: President |
Exhibit A
Project Harlan
Senior Secured Credit Facilities
Transaction Description1
The following transactions, including the Acquisition, are referred to herein as the Transactions.
(a) FRC Founders Corporation and/or its affiliates (the Sponsor) has formed FR Utility Services, Inc. (Holdings), and FR Utility Services Merger Sub, Inc., a Delaware corporation (Borrower) and a wholly-owned direct subsidiary of Holdings, which will, directly or indirectly, acquire (the Acquisition) certain Shares of the Company, as such terms are defined in, and as set forth in, that certain Agreement and Plan of Merger, dated as of November 23, 2020, by and between the Company, Borrower and each other party thereto (together with all exhibits and schedules thereto, the Acquisition Agreement).
(b) The Sponsor and other investors (including members of management of the Company) will directly or indirectly contribute to Borrower, an aggregate amount of cash and rollover equity (which, to the extent in respect of any equity of Holdings or Borrower other than common stock, shall be on terms reasonably acceptable to the Lead Arrangers) that represents not less than 40.0% of the sum of (1) (x) the aggregate gross proceeds received from the loans borrowed under the Term Facility, excluding any gross proceeds received from any increase in the loans under the Term Facility to fund original issue discount or upfront fees required to be funded in connection with an exercise of the flex provisions of a fee letter to be executed in connection herewith (the Fee Letter), (2) the aggregate gross proceeds received from loans borrowed under the Revolving Facility, excluding any loans on the Closing Date to fund original issue discount or upfront fees required to be funded in connection with an exercise of the flex provisions of the Fee Letter or working capital needs, (3) the aggregate principal amount of any other indebtedness for borrowed money (including capital leases) incurred to fund any portion of (or assumed (or permitted to remain outstanding) in connection with) the Transactions and (4) the amount of such cash contribution and rollover equity (which rollover equity shall not exceed 30.0% of the Equity Contribution (as defined below)), in each case on the Closing Date (as defined below) (collectively, the Equity Contribution); provided that after giving effect to the Acquisition, the Sponsor shall control a majority of the outstanding voting equity interests of Borrower.
(c) Borrower will obtain $125.0 million in senior secured credit facilities, consisting of a (i) $25.0 million first lien senior secured revolving credit facility (the Revolving Facility) and (ii) $100.0 million in aggregate principal amount of first lien senior secured term loans (the Term Facility and together with the Revolving Facility, the Senior Facilities), in each case, having the terms set forth in the Summary of Principal Terms and Conditions attached hereto as Exhibit B (the Senior Facilities Term Sheet); and
(d) All existing third party indebtedness of the Company and the Acquired Companies (as defined in the Acquisition Agreement) (which shall exclude existing capital leases and letters of credit and any indebtedness of the Company and the Acquired Companies permitted to be incurred or remain outstanding under the Acquisition Agreement after the Closing Date and certain other limited indebtedness that the Lead Arrangers and the Borrower reasonably agree may remain outstanding after the Closing Date) will be repaid in full, and all commitments, security interests and guarantees in connection therewith will be terminated and released.
1 |
All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Term Sheet is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit shall be determined by reference to the context in which it is used. |
Exhibit A
The transactions described in clause (d) above are collectively referred to herein as the Refinancing. This Exhibit A, the Senior Facilities Term Sheet and the Additional Conditions Precedent attached hereto as Exhibit C are collectively referred to herein as the Term Sheets. Closing Date shall mean the date of the initial funding under the Senior Facilities and the consummation of the Acquisition.
Exhibit A-2
Exhibit B
Project Harlan
Senior Secured Credit Facilities
Summary of Principal Terms and Conditions2
Sponsor: | FRC Founders Corporation and/or its affiliates (the Sponsor). | |
Holdings: | FR Utility Services, Inc., a company organized under the laws of Delaware (Holdings). | |
Borrower: | FR Utility Services Merger Sub, Inc., a company organized under the laws of Delaware and a wholly-owned direct subsidiary of Holdings (the Borrower). | |
Administrative Agent: | Citizens Bank, N.A. (Citizens) will act as sole and exclusive administrative agent and collateral agent for the Senior Facilities (in such capacity, the Administrative Agent), and will perform the duties customarily associated with such roles. | |
Lead Arrangers and Bookrunners: | Citizens and SMBC will act as joint lead arrangers for the Senior Facilities (the Lead Arrangers) and as joint bookrunners, and will perform the duties customarily associated with such roles. | |
Syndication Agent: | SMBC | |
Lenders: | A syndicate of financial institutions arranged by the Lead Arrangers and reasonably acceptable to the Borrower (collectively, the Lenders). | |
SeniorSecured Credit Facilities: |
(A) A senior secured first lien term loan facility (the Term Facility) in an aggregate principal amount of $100.0 million plus, at the Borrowers election, an amount sufficient to fund any OID or upfront fees required to be funded in connection with an exercise of the flex provisions in the Fee Letter, which amounts shall be automatically added to the commitments under the Commitment Letter. |
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(B) A senior secured first lien revolving credit facility in an aggregate principal amount of $25.0 million (the Revolving Facility and, together with the Term Facility, the Senior Facilities), the full amount of which will be available in the form of letters of credit. |
2 |
All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Term Sheet is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit shall be determined by reference to the context in which it is used. |
Exhibit B
Incremental Facilities: | The Senior Facilities Documentation will permit the Borrower to (a) add one or more incremental first lien term loan facilities (the Incremental Term Facilities) and (b) add one or more first lien revolving credit facilities and/or increase commitments under the Revolving Facility (any such revolving credit facility or increase, an Incremental Revolving Facility; the Incremental Term Facilities and the Incremental Revolving Facilities are collectively referred to as Incremental Facilities); provided that (i) the Incremental Facilities do not exceed in the aggregate the sum of (A) the greater of (1) $25.0 million and (2) 100% of EBITDA for the most recently ended four fiscal quarter period, which amount shall be shared across the Incremental Facilities (the Incremental Starter Basket), plus (B) all voluntary prepayments of Term Loans and permanent commitment reductions under the Revolving Facility prior to such date of incurrence, in each case, to the extent not funded with the proceeds of long-term indebtedness plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio (with financial definitions to be defined in a manner consistent with the Sponsor Precedent (as defined below) and, in any case, to be determined net of all unrestricted cash and cash equivalents; provided that Consolidated First Lien Net Debt shall include all Consolidated Net Debt of Holdings and its restricted subsidiaries that is secured by a first priority lien (including capital leases), but assuming that (i) all commitments under any such Incremental Revolving Facility are fully drawn and (ii) all such additional amounts were secured on a first lien basis, whether or not so secured, and excluding the cash proceeds of any borrowing under any such Incremental Facilities) as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, on a pro forma basis after giving effect to such Incremental Facility, does not exceed (x) 4.00:1.00 or (y) if the proceeds are used to finance permitted acquisitions, the higher of (I) 4.25:1.00 and (II) the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence thereof (the Incurrence Basket), (ii) no Lender will be required to participate in any such Incremental Facility, (iii) the Incremental Term Facilities and the Incremental Revolving Facilities will rank pari passu in right of payment and security with the Senior Facilities, (iv) the Incremental Term Facilities will have a final maturity no earlier than the final maturity of the Term Facility and any Incremental Revolving Facility will have a final maturity no earlier than the final maturity of the |
Exhibit B-2
Exhibit B
Revolving Facility, (v) the weighted average life to maturity of any Incremental Term Facility shall be no shorter than that of the Term Facility, (vi) subject to clauses (iv) and (v) above, the amortization schedule applicable to any Incremental Term Facility shall be determined by the Borrower and the lenders thereunder and no Incremental Revolving Facility shall have amortization, (vii) no event of default shall have occurred and be continuing or would result therefrom (or, if the proceeds of the Incremental Facility at issue will be used to effect a Limited Condition Acquisition, no bankruptcy or payment event of default shall have occurred and be continuing or would result therefrom), (viii) with respect to any Incremental Term Facilities incurred prior to the date that is 18 months after the Closing Date (the MFN Sunset), in the event that the effective interest rate (including any original issue discount, any upfront fees and any floors, but excluding any arrangement, structuring or other similar fees not paid to lenders generally) (Yield) for such Incremental Facility is more than 0.50% per annum greater than the applicable Yield under the Senior Facility to which it relates, the applicable Yield under such Senior Facility shall be increased to the extent necessary so that the applicable Yield under such Senior Facility is equal to the Yield for such Incremental Facility minus 0.50% per annum (this clause (viii), the MFN Protection), (ix) the representations and warranties in the applicable Senior Facilities Documentation shall be true and correct in all material respects on and as of the date of the incurrence of such Incremental Facility, or, to the extent any Incremental Facility is being used to finance a Limited Condition Acquisition, subject to only the accuracy in all material respects of representations and warranties that would constitute Specified Representations, (x) no Incremental Facility (A) shall be guaranteed by any person other than the Guarantors and (B) if secured, shall be secured by any assets not constituting Collateral, (xi) as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are delivered to the Administrative Agent, the Borrower shall be in compliance with the Financial Covenant on a pro forma basis after giving effect to such Incremental Facility (assuming that all commitments under any such Incremental Facility in the nature of a revolving credit facility are fully drawn, and excluding the cash proceeds of any borrowing under any such Incremental Facility except to the extent such proceeds are used to repay indebtedness), and (xii) except as otherwise required or permitted in clauses (i) through (viii) above, all other terms of such Incremental Facility, if not consistent with the terms of the existing Term Facility or Revolving Facility, as the case may be, shall be reasonably satisfactory to the Administrative Agent; |
Exhibit B-3
Exhibit B
provided that mandatory prepayments shall not be permitted to be applied to any Incremental Facility on a greater than pro rata basis relative to the existing Senior Facilities. With respect to each Incremental Facility, the Borrower may elect to use the Incurrence Basket prior to the Incremental Starter Basket or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Incremental Starter Basket shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence Basket if the Borrower meet the applicable ratio for the Incurrence Basket at such time on a pro forma basis. If any applicable ratio for the Incurrence Basket would be satisfied on a pro forma basis in any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower.
The Senior Facilities Documentation shall be amended to give effect to any Incremental Facility by documentation executed by the Lender or Lenders making the commitments thereunder, the Administrative Agent and the Borrower, and without the consent of any other Lender.
In the case of the incurrence of any indebtedness or liens, including Incremental Facilities or indebtedness under the Unsecured Debt Incurrence Basket (as defined below), First Lien Debt Incurrence Basket (as defined below) or the Junior Debt Incurrence Basket (as defined below) or the making of any investments in connection with a permitted acquisition (a Limited Condition Acquisition), at the Borrowers option, the relevant ratios and baskets shall be determined as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into and calculated as if the Limited Condition Acquisition and other pro forma events in connection therewith were consummated on such date; provided, that if the Borrower has made such an election, in connection with determining whether the calculation of any ratio or basket with respect to the incurrence of any debt or liens, or the making of any investments, restricted payments, prepayments of subordinated debt, asset sales, fundamental changes or the designation of a restricted subsidiary or unrestricted subsidiary in connection with such Limited Condition Acquisition is permitted on or following such date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated and the date on which the definitive agreement for such acquisition is terminated, any such ratio or basket shall be calculated on a pro forma basis assuming such Limited Condition Acquisition and other pro forma events in connection |
Exhibit B-4
Exhibit B
therewith (including any incurrence of indebtedness) have been consummated as if they occurred at the beginning of the applicable test period. For the avoidance of doubt, if any of such ratios are exceeded as a result of fluctuations in such ratio including due to fluctuations in EBITDA of the Borrower or the person subject to such acquisition or investment, at or prior to the consummation of the relevant transaction or action, such ratios will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the relevant transaction or action is permitted to be consummated or taken; provided, that if such ratios improve as a result of such fluctuations, such improved ratios may be utilized. | ||
Refinancing Facilities: | The Senior Facilities Documentation will permit the Borrower to refinance loans under the Term Facility or commitments under the Revolving Facility from time to time, in whole or in part, with one or more new term facilities (each, a Refinancing Term Facility) and to refinance commitments under the Revolving Facility with new revolving credit facilities (each, a Refinancing Revolving Facility; the Refinancing Term Facilities and the Refinancing Revolving Facilities are collectively referred to as Refinancing Facilities), respectively, under the Senior Facilities Documentation with the consent of the Borrower, the Administrative Agent and the lenders providing such Refinancing Term Facility or Refinancing Revolving Facility or in the case of debt refinancing a Term Facility, with one or more additional series of senior unsecured or senior subordinated notes or loans or senior secured notes that will be secured by the Collateral on a pari passu basis with the applicable Senior Facility being refinanced or junior lien secured notes or loans that will be secured on a junior basis to such Senior Facility (provided that any Refinancing Facility secured on a junior lien basis to the Senior Facilities shall be secured on a junior basis to the Term Facility) (any such notes or loans, Refinancing Notes and, together with the Refinancing Facilities, the Refinancing Debt); provided that (i) any Refinancing Term Facility or Refinancing Notes do not mature prior to the maturity date of, or have a shorter weighted average life than, loans under the applicable Term Facility being refinanced, (ii) any Refinancing Revolving Facility does not mature (or require commitment reductions) prior to the maturity date of the revolving commitments being refinanced, (iii) the amount of Refinancing Debt will be in an amount not in excess of the amount of loans and commitments refinanced plus fees, expenses, premiums and accrued and unpaid interest payable in connection therewith, (iv) the other terms and conditions of such Refinancing Term Facility, Refinancing Revolving Facility or Refinancing Notes (excluding pricing, fees, rate |
Exhibit B-5
Exhibit B
floors and optional prepayment or redemption terms) are substantially identical to, or (taken as a whole) are not materially more favorable to the lenders providing such Refinancing Term Facility, Refinancing Revolving Facility or Refinancing Notes, as applicable, than, those applicable to the applicable Term Facility or revolving commitments being refinanced (except for covenants or other provisions applicable only to periods after the latest final maturity date of the applicable Term Facility and revolving credit commitments existing at the time of such refinancing), (v) any secured Refinancing Debt shall be subject to the an intercreditor agreement on terms reasonably acceptable to the Administrative Agent and shall not be secured by any assets not constituting Collateral, (vi) if any Refinancing Debt is guaranteed, it shall not be guaranteed by any person other than the Guarantors and (vii) the proceeds of such Refinancing Facilities shall be applied, substantially concurrently with the incurrence thereof, to the pro rata prepayment of outstanding loans (and, in the case of the Revolving Facility, pro rata commitment reductions) under the applicable Senior Facility being so refinanced; provided further that (x) in no event shall Refinancing Term Facilities be permitted to be voluntarily or mandatorily prepaid prior to the repayment in full of all applicable Term Loans, unless accompanied by a ratable prepayment of applicable Term Loans and (y) any Refinancing Revolving Facility will be subject to no greater than pro rata borrowing, letter of credit participation and prepayment and commitment reduction provisions with the Revolving Facility and any other revolving facility under the Senior Facility. | ||
Purposeand Availability: |
(A) The full amount of the Term Facility must be drawn on the Closing Date and applied to consummate the Acquisition and the other Transactions (including to pay transaction costs and expenses in connection therewith) as set forth in the Transaction Description. Amounts borrowed under the Term Facility that are repaid or prepaid may not be reborrowed. |
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(C) The proceeds of loans under the Revolving Facility will be used by the Borrower for general corporate purposes. Loans under the Revolving Facility will be available on and after the Closing Date (including to fund working capital expenses on the Closing Date) at any time before the final maturity of the Revolving Facility, in minimum principal amounts to be agreed; provided that borrowings under the Revolving Facility on the Closing Date shall be limited to (x) fees and expenses ) in an aggregate amount not to exceed $5.0 million, plus (y) any amount necessary to fund working capital needs on the Closing Date and original issue discount or upfront fees resulting from the exercise of flex provisions under the Fee Letter. Amounts repaid under the Revolving Facility may be reborrowed. |
Exhibit B-6
Exhibit B
The entire Revolving Facility shall be available for the issuance of letters of credit (the Letters of Credit). Letters of Credit may be issued on the Closing Date to backstop or replace letters of credit outstanding on the Closing Date (including, to the extent practicable, by grandfathering such existing letters of credit in the Revolving Facility) or for other general corporate purposes. | ||
A portion of the Revolving Facility not in excess of an amount to be agreed upon shall be available for swingline loans (the Swingline Loans) from one or more Lenders to be agreed upon (in such capacity, the Swingline Lender) on same-day notice. Except for purposes of calculating the commitment fee, any such Swingline Loans will reduce availability under the Revolving Facility on a dollar-for- dollar basis. Each Lender under the Revolving Facility shall acquire, under certain circumstances, an irrevocable and unconditional pro rata participation in each Swingline Loan. | ||
Interest Rates and Fees: | As set forth on Annex I hereto. | |
Default Rate: | Any principal or interest payable under or in respect of the Senior Facilities not paid when due shall bear interest at the applicable interest rate plus 2.00% per annum. Other overdue amounts shall bear interest at the interest rate applicable to ABR loans plus 2.00% per annum. | |
Letters of Credit: | Letters of Credit will be issued by each of Citizens and one or more other Lenders under the Revolving Facility to be agreed (each such Lender, in such capacity, a Issuing Bank). Each Revolving Facility Letter of Credit shall expire not later than the earlier of (a) 12 months after its date of issuance and (b) the fifth business day prior to the final maturity of the Revolving Facility; provided that any Revolving Facility Letter of Credit may provide for renewal thereof for additional periods of up to 12 months (which in no event shall extend beyond the date referred to in clause (b) above). Revolving Facility Letter of Credit outstandings will reduce the availability under the Revolving Facility on a dollar-for-dollar basis. | |
Drawings under any Revolving Facility Letter of Credit shall be reimbursed by the Borrower (whether with its own funds or with the proceeds of Loans under the Revolving Facility), within one business day. To the extent that the Borrower does not so reimburse the Issuing Bank within one business day, the Lenders under the Revolving Facility shall be irrevocably and unconditionally obligated to reimburse the Issuing Bank on a pro rata basis. |
Exhibit B-7
Exhibit B
FinalMaturity and |
(A) Term Facility |
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Amortization: | The Term Facility will mature on the date that is six years after the Closing Date. | |
The Term Facility will amortize in equal quarterly installments in aggregate annual amounts equal to 1.00% of the original principal amount of the Term Facility, with the balance payable on the final maturity date. | ||
The Senior Facilities Documentation shall provide the right for individual Lenders under any Term Facility (each such Lender, a Term Lender) to agree to extend the maturity date of their outstanding Term Loans upon the request of the Borrower and without the consent of any other Lender pursuant to procedures consistent with Sponsor Precedent (it being understood that each Term Lender under the tranche that is being extended shall have the opportunity to participate in such extension on the same terms and conditions as each other Term Lender under such tranche). | ||
(B) Revolving Facility |
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The Revolving Facility will mature on the date that is five years after the Closing Date; provided that the Senior Facilities Documentation shall provide the right for individual Lenders under the Revolving Facility (each such Lender, a Revolving Lender) to agree to extend the maturity date of their revolving commitments upon the request of the Borrower and without the consent of any other Lender pursuant to procedures consistent with Sponsor Precedent (it being understood that each Revolving Lender under the tranche that is being extended shall have the opportunity to participate in such extension on the same terms and conditions as each other Revolving Lender under such tranche). | ||
Guarantees: | Subject to the Certain Funds Provision, Holdings and each Borrowers existing and subsequently acquired or organized direct and indirect wholly-owned subsidiaries organized under the laws of the United States (other than any unrestricted subsidiaries, captive insurance companies and not-for-profit subsidiaries) (together with Holdings, the Guarantors) shall unconditionally guarantee, on a joint |
Exhibit B-8
Exhibit B
and several basis (the Guarantees), all obligations of the Borrower (the Borrower Obligations) under the Senior Facilities and under any interest rate protection or other hedging arrangements (other than any obligation of any Guarantor to pay or perform under any agreement, contract, or transaction that constitutes a swap within the meaning of section 1a(47) of the Commodity Exchange Act (a Swap), if, and to the extent that, all or a portion of the guarantee by such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation, or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (collectively, Excluded Swap Obligations), it being understood that for each Guarantor that has total assets exceeding $10,000,000 or such other amount so that such Guarantor is an eligible contract participant as defined in the Commodity Exchange Act at the time a Swap is incurred, a cross-guarantee covenant pursuant to Section 1a(18)(A)(v)(II) of the Commodity Exchange Act shall apply, (x) entered into with a Lender or an agent under the Senior Facilities or any affiliate of a Lender or an agent under the Senior Facilities at the time of the entering into of such arrangements or (y) in effect on the Closing Date with a person that on the Closing Date becomes a Lender or an agent under the Senior Facilities or is an affiliate thereof (Hedging Obligations) and under any cash management arrangements (x) entered into with a Lender or an agent under the Senior Facilities or any affiliate of a Lender or an agent under the Senior Facilities, at the time of the entering into of such arrangements or (y) in effect on the Closing Date with a person that on the Closing Date becomes a Lender or an agent under the Senior Facilities or is an affiliate thereof (Cash Management Obligations), in each case to the extent otherwise permitted by applicable law, regulation and, to the extent existing on the Closing Date (or applicable acquisition date), contractual provisions (in each case not in contemplation thereof) and to the extent such guarantee would not result in adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent. | ||
Collateral: | The Borrower Obligations, the Guarantees, any Hedging Obligations and any Cash Management Obligations, will be secured on a first priority basis by substantially all of the present and after-acquired assets of the Borrower and each Guarantor (collectively, the Collateral), including but not limited to: (a) a perfected pledge of all of the capital stock of the Borrower, (b) a perfected pledge of all the capital stock directly held by the Borrower or any Guarantor in any material wholly-owned restricted subsidiary (which pledge, in the case of the voting capital stock of any foreign subsidiary or any FSHCO, shall be limited to 65% of the voting stock of such foreign subsidiary or such FSHCO, as the case may be) and (c) perfected security interests (subject to permitted liens to be agreed) in, and mortgages on, substantially all other tangible and intangible assets of the Borrower and each Guarantor. |
Exhibit B-9
Exhibit B
Notwithstanding anything to the contrary, the Collateral shall not include (a) those assets as to which the Administrative Agent shall determine in its reasonable discretion that the costs of obtaining such security interest are excessive in relation to the value of the security to be afforded thereby (it being understood that none of the foregoing shall be subject to any other liens or security interests, except for certain exceptions to be agreed upon) and (b) those assets over which the granting of security interests in such assets would be prohibited by contract (to the extent existing on the Closing Date or upon the acquisition of a subsidiary, and in each case, not in contemplation thereof), applicable law or regulation or the organizational documents of any non-wholly owned subsidiary (including permitted liens, leases and licenses) (in each case, after giving effect to the applicable anti-assignment provisions of the Uniform Commercial Code), or to the extent that such security interests or the granting thereof would result in adverse tax consequences as reasonably determined by the Borrower in consultation with the Administrative Agent. The Borrower and its subsidiaries will not be required (x) to enter into leasehold mortgages and mortgages in respect of immaterial fee owned real property, (y) to enter into control agreements or (z) to take any action with respect to the perfection of security interests in motor vehicles or other assets subject to certificates of title. | ||
All such security interests will be created on terms, and pursuant to, documentation consistent with Sponsor Precedent, and none of the Collateral shall be subject to any other pledges, security interests or mortgages (except permitted liens, including liens disclosed in the Acquisition Agreement and the schedules thereto that explicitly state that such liens will remain in place after consummation of the Acquisition), and subject to exceptions consistent with the Sponsor Precedent and as otherwise agreed upon. The requirements with respect to Collateral shall be subject to the Certain Funds Provision. |
Exhibit B-10
Exhibit B
Notwithstanding anything to the contrary in the foregoing, no actions in any non-U.S. jurisdiction shall be required in order to create any security interests in assets located or titled outside of the U.S. or to perfect any security interests in such assets, including any intellectual property registered in any non-U.S. jurisdiction (it being understood that there shall be no security agreements or pledge agreements governed under the laws of any non-U.S. jurisdiction). | ||
Mandatory Prepayments: | Revolving Facility: None, subject to customary prepayment requirements if the aggregate amount of borrowings (including Swingline Loans), outstanding Letters of Credit and unreimbursed obligations in respect of drawn Letters of Credit under the Revolving Facility exceed the commitments thereunder. | |
Term Facility: Subject to the third paragraph under Application of Prepayments below, Term Loans shall be prepaid with (a) 50% of Excess Cash Flow (to be defined in a manner consistent with the Sponsor Precedent) for each fiscal year of the Borrower (commencing with the first full fiscal year ending after the Closing Date) with step-downs to 25% upon achievement of a Consolidated First Lien Net Leverage Ratio equal to or less than 3.50:1.00 and 0% upon achievement of a Consolidated First Lien Net Leverage Ratio equal to or less than 3.00:1.00; provided that any voluntary prepayments of the loans under the Term Facility and the loans under the Revolving Facility (to the extent accompanied by a permanent reduction of the corresponding commitment), other than prepayments funded with the proceeds of incurrences of indebtedness, made during such fiscal year or after year-end and prior to the time such Excess Cash Flow prepayment is due will reduce the amount of Excess Cash Flow prepayments required for such fiscal year on a dollar-for-dollar basis; (b) 100% of the net cash proceeds above an amount to be agreed upon of all non- ordinary course asset sales or other dispositions of property by the Borrower and its restricted subsidiaries (including casualty insurance and condemnation proceeds in excess of an amount to be agreed), subject to the right of the Borrower to reinvest if such proceeds are reinvested (or committed to be reinvested) within 12 months and, if so committed to be reinvested, reinvested within 180 days thereafter, and subject to certain exceptions to be agreed and (c) 100% of the net cash proceeds of issuances of debt obligations of the Borrower and its restricted subsidiaries (except the net cash proceeds of any permitted debt other than Refinancing Debt). | ||
Voluntary Prepayments and Reductions in Commitments: | Voluntary reductions of the unutilized portion of the Senior Facilities commitments and prepayments of borrowings will be permitted at any time (subject to customary notice requirements), in minimum principal amounts to be agreed, |
Exhibit B-11
Exhibit B
without premium or penalty (except as set forth below), subject to reimbursement of the Lenders redeployment costs in the case of a prepayment of Adjusted LIBOR borrowings prior to the last day of the relevant interest period; provided that if, prior to the date that is twelve months after the Closing Date, (x) there shall occur any amendment, amendment and restatement or other modification of the definitive documentation for the Term Facility that has the effect of reducing the Yield then in effect for the loans thereunder, (y) all or any portion of the Term Facility is voluntarily prepaid or mandatorily prepaid with the net cash proceeds of issuances, offerings or placement of debt obligations, or refinanced substantially concurrently with the incurrence of, or conversion of the loans thereunder into, new indebtedness that has a Yield lower than the Yield in effect for the loans so prepaid or (z) a Lender must assign its loans under the applicable Term Facility as a result of its failure to consent to an amendment, amendment and restatement or other modification of such Term Facility that would have the effect of reducing the Yield then in effect for the loans under such Term Facility (any of clause (x), (y) or (z), a Repricing Transaction), then in each case the aggregate principal amount so subject to such Repricing Transaction (other than any Repricing Transaction made in connection with a change of control) will be subject to a 1.00% prepayment premium. | ||
Application of Prepayments: | All voluntary prepayments of the relevant Term Loans will be applied to the installments thereof as directed by the Borrower (and absent such direction, in direct order of maturity thereof). | |
Within the Term Facility, mandatory prepayments shall be applied to the scheduled installments of principal of the Term Facility in direct order of maturity. Prepayments as described under clauses (a), (b), (c) and (d) in Mandatory Prepayments Term Facility above shall be applied to the Term Facility. | ||
The Senior Facilities Documentation will provide customary provisions pursuant to which any Lender may elect not to accept any mandatory prepayment described in clauses (a) and (b) in Mandatory PrepaymentsTerm Facility above, or, to the extent such prepayment is not required, retained by the Borrower. |
Exhibit B-12
Exhibit B
Senior Facilities Documentation: | For the purposes hereof and throughout these term sheets, each reference to Sponsor Precedent shall mean that certain Credit Agreement dated as of December 20, 2019 (as amended by that certain First Amendment to Credit Agreement dated as of January 17, 2020 and that certain Second Amendment to Credit Agreement dated as of October 13, 2020) among LGC US Parent, LLC, LGC US Finco, LLC, the guarantors party thereto, Citizens Bank, N.A., as administrative agent under such credit agreement and the other parties thereto and the related security, collateral and guarantee agreements and related closing documentation executed and/or delivered in connection therewith, in each case without giving effect to any amendments thereto, subject to modifications mutually agreeable to the Administrative Agent and the Sponsor and as modified to give due regard to the capital structure, size, industry, industry practices and projections of the Borrower and its restricted subsidiaries. The definitive facilities documentation for the Senior Facilities (the Senior Facilities Documentation) shall be based on the Sponsor Precedent. The Senior Facilities Documentation shall be consistent with this Commitment Letter (including the Certain Funds Provision) and contain only those payments, conditions to borrowing, mandatory prepayment, representations, warranties, covenants and events of default expressly set forth in this Exhibit B (subject to the market flex provisions of the Fee Letter), in each case, applicable to the Borrower and its restricted subsidiaries (and, to the extent specified in this Exhibit B, Holdings) and with standards, qualifications, thresholds, exceptions, baskets and grace and cure periods consistent with Sponsor Precedent (except as otherwise set forth herein) as applied to transactions of this kind with leveraged affiliates of the Sponsor and will give effect to operations and agency requirements of the Administrative Agent. | |
Representations and Warranties: | Limited to the following (to be applicable to the Borrower and its restricted subsidiaries and with respect to certain customary representations and warranties, Holdings), consistent with the Sponsor Precedent (including as to materiality thresholds): | |
1. Corporate existence, power and authority, good standing and due authorization. |
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2. Execution, delivery and performance of the Senior Facilities Documentation do not violate applicable law, organizational documents or other material agreements. |
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3. Possession of all material consents, approvals, licenses and permits. |
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4. Absence of material litigation. |
Exhibit B-13
Exhibit B
Exhibit B-14
Exhibit B
Conditions Precedent to All Borrowings After the Closing Date: | Delivery of a customary borrowing notice; accuracy of representations and warranties in all material respects (subject (x) in the case of the Borrower, to the Certain Funds Provision and (y) in the case of borrowings under an Incremental Facility, the proceeds of which will be used to effect a Limited Condition Acquisition, subject to only the accuracy in all material respects of representations and warranties that would constitute Specified Representations); and, except as set forth under Incremental Facilities above, absence of defaults. | |
Affirmative Covenants: | Limited to the following (to be applicable to the Borrower and its restricted subsidiaries and, solely in the case of numbers 1 and 14 below, Holdings) and consistent with Sponsor Precedent (including as to materiality thresholds): | |
1. Preservation of corporate existence. |
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2. Material compliance with laws (including environmental laws and ERISA). |
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3. Payment of taxes. |
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4. Payment and/or performance of obligations. |
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5. Delivery of financial information, including audited annual consolidated financial statements and unaudited quarterly consolidated financial statements (in each case, to be accompanied by written commentary on financial performance in the form customarily prepared by the Borrower (or otherwise as provided to their equity holders), and with annual financial statements accompanied by an opinion of an independent accounting firm (which opinion shall not contain any qualifications or exceptions as to the scope of such audit or any going concern explanatory paragraph or like qualification (other than resulting from (x) the impending maturity of any indebtedness, (y) any prospective breach of any financial covenant and (z) the activities, operations, financial results, assets or liabilities of any unrestricted subsidiary))), annual budget reports in the form customarily prepared by the Borrower (or otherwise as provided to their equity holders), (with delivery time periods to be consistent with the delivery requirements for the audited annual financial statements); provided that (x) the delivery of audited annual financial statements will be due 90 days after the end of the relevant fiscal year and (y) the delivery of unaudited quarterly financial statements will be due 45 days after the end of the relevant fiscal quarter (except that the first annual audited financial statements |
Exhibit B-15
Exhibit B
following the Closing Date need not be provided until 120 days after the end of such fiscal year, and the first unaudited quarterly financial statement following the Closing Date need not be provided until 60 days after the end of such fiscal quarter). |
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6. Other customary reporting requirements (including information reasonably requested by Lenders through the Administrative Agent) and notices of default, material adverse change, ERISA and litigation. |
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7. Visitation and inspection rights. |
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8. Maintenance of books and records. |
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9. Maintenance of properties. |
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10. Maintenance of insurance. |
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11. Compliance with PATRIOT Act, OFAC and FCPA. |
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12. Changes in fiscal year. |
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13. Further assurances. |
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14. Passive holding company status of Holdings. |
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15. Use of proceeds. |
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16. Quarterly conference calls with Lenders. |
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Negative Covenants: | Limited to the following (to be applicable to the Borrower and its restricted subsidiaries) and consistent with Sponsor Precedent (including as to materiality thresholds, exceptions, qualifications and, as appropriate, baskets): | |
1. Limitation on liens. |
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2. Limitations on debt and disqualified stock. |
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3. Limitations on dividends, redemptions and repurchases with respect to capital stock and other restricted payments (subject to customary carve-outs for tax distributions), including repayments, redemptions, repurchases or prepayments of junior lien, unsecured and subordinated debt and investments in unrestricted subsidiaries (other than, so long as there is no default or event of default continuing, and no default or event of default would result therefrom, dividends and payments (a) with |
Exhibit B-16
Exhibit B
the proceeds of qualified equity issuances or contributions (other than Specified Equity Contributions), (b) if, after giving effect thereto, the Borrower would be in pro forma compliance with a Consolidated Total Net Leverage Ratio of not greater than 4.00:1.00, in an amount equal to the sum of (i) $10.0 (the Available Amount Starter Basket) plus (ii) cumulative retained Excess Cash Flow not required to be used to prepay the Term Facility and not otherwise applied, in each case on a pro forma basis), and (c) in additional amounts, subject to pro forma compliance with a Consolidated Total Net Leverage Ratio of not greater than 3.00:1.00; provided, (x) there shall be no general basket for restricted payments and (y) restricted payments for repurchases or redemptions of equity shall be allowed up to $5.0 million per year with a one-year carry-forward of unused amounts and on the other terms therefor set forth in the Sponsor Precedent. |
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4. Limitations on loans, guarantees and investments (but permitting, so long as no event of default is continuing or would result therefrom, acquisitions and investments with the proceeds of (x) qualified equity issuances (other than Specified Equity Contributions) and (y) cumulative retained excess cash flow not required to be used to prepay the Term Facility and not otherwise applied). |
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5. Limitations on mergers, consolidations, divisions, acquisitions, asset dispositions and sale/leaseback transactions. |
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6. Limitations on transactions with affiliates. |
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7. Limitations on changes in business. |
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8. Limitations on restrictions on liens and on distributions from subsidiaries. |
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9. Prohibition on speculative hedging. |
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10. Limitations on designation of restricted and unrestricted subsidiaries. |
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11. Limitations on modifying charter documents and documents relating to junior and subordinated debt in a manner materially adverse to the interests of the Lenders. |
Exhibit B-17
Exhibit B
The Senior Facilities Documentation will permit the Borrower to make acquisitions and to assume indebtedness (provided that such indebtedness could be incurred under the succeeding paragraph) in connection with such acquisitions, as long as (a) there is no default or event of default continuing or would result therefrom, (b) the acquired company is in a similar or related line of business as the Borrower and its subsidiaries, (c) subject to the limitation set forth under Guarantors above, the acquired company and its subsidiaries will become Guarantors and (d) the acquired company and its subsidiaries will pledge their capital stock, properties and assets to the extent required by the provisions set forth under Collateral above. Acquisitions of entities that do not become Guarantors will be limited to an aggregate amount to be agreed upon. | ||
So long as no event of default has occurred and is then continuing or would result therefrom, the Borrower and any restricted subsidiary will be permitted to (a) incur indebtedness subject to compliance on a pro forma basis with (i) if such indebtedness is unsecured, a Consolidated Total Net Leverage Ratio of not greater than 4.75:1.00 (the Unsecured Debt Incurrence Basket), (ii) if such indebtedness is secured on a pari passu basis with the Senior Facilities, a Consolidated First Lien Net Leverage Ratio (to be determined net of all unrestricted cash and cash equivalents, but to exclude the cash proceeds from the indebtedness being incurred) of (x) 4.00:1.00 or (y) if the proceeds are used to finance permitted acquisitions, the higher of (I) 4.25:1.00 and (II) the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence thereof (the First Lien Debt Incurrence Basket and (iii) if such indebtedness is secured on a junior basis to the Senior Facilities, a Consolidated Secured Net Leverage Ratio (to be determined net of all unrestricted cash and cash equivalents but to exclude the cash proceeds from the indebtedness being incurred) of (x) 4.25:1.00 or (y) if the proceeds are used to finance permitted acquisitions, the higher of (I) 4.50:1.00 and (II) the Consolidated Secured Net Leverage Ratio immediately prior to the incurrence thereof (the Junior Debt Incurrence Basket); provided that with respect to any indebtedness incurred pursuant to clause (i), (ii) or (iii) above, such indebtedness shall (A) have a maturity at least (and in the case of unsecured debt, no scheduled payment, redemption or sinking fund payments prior to) 91 days after the latest date of maturity of the applicable Senior Facility, (B) any such indebtedness shall have a weighted average life no shorter than the applicable Senior Facility and (C) have terms and conditions (other than pricing, rate floors, discounts, fees, and optional redemption provisions) that are not materially less favorable |
Exhibit B-18
Exhibit B
(when taken as a whole) to the Borrower than the terms and conditions of the applicable Senior Facilities Documentation (when taken as a whole); provided, further, that (A) any such debt incurred pursuant to this sentence by a restricted subsidiary that is not a Guarantor shall be capped at an amount to be agreed and (B) (i) any indebtedness incurred pursuant to clause (ii) above that is in the form of term loans secured on a pari passu basis with the Senior Facilities will be subject to the MFN Protection; and (b) make unlimited non-ordinary course asset sales subject to fair market value, the consideration for such sales being at least 75% cash consideration and compliance, if required, with the mandatory prepayment provisions. | ||
Financial Covenant: | Limited to the following financial maintenance covenant (the Financial Covenant): a maximum Consolidated Total Net Leverage Ratio of 6.25:1.00 (to be set at no less than a 35.0% cushion to the Sponsor Model (as defined below) and appropriately adjusted upwards to reflect the exercise of any original issue discount or upfront fee flex that increases debt), but in any event not to commence until the end of the first full fiscal quarter after the Closing Date and, in addition to netting of unrestricted cash consistent with the Sponsor Precedent. EBITDA will be defined in a manner consistent with Sponsor Precedent and otherwise to be mutually agreed, but in any event the definition of EBITDA for all purposes of the Senior Facilities Documentation will include adjustments and add-backs reflected in the Sponsors model delivered to the Lead Arrangers on October 23, 2020 (the Sponsor Model) as well as adjustments and add-backs (x) consistent with Sponsor Precedent and (y) others as may be agreed. | |
Any cash equity contribution (which equity shall be common equity or other equity on terms and conditions reasonably acceptable to the Administrative Agent) made to Holdings and contributed to the Borrower after the first day of a fiscal quarter and on or prior to the day that is 10 business days after the day on which financial statements are required to be delivered for such fiscal quarter will, at the request of the Borrower, be included in the calculation of EBITDA for the purposes of determining compliance with the Financial Covenant at the end of such fiscal quarter (the Cured Quarter) and applicable subsequent periods that include such fiscal quarter (any such equity contribution so included in the calculation of EBITDA, a Specified Equity Contribution), provided that (a) in each four fiscal quarter period, there shall be at least two fiscal quarters in which no Specified Equity Contribution is made, (b) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Borrower to be in pro |
Exhibit B-19
Exhibit B
forma compliance with the Financial Covenant, (c) no pro forma effect shall be given to any reduction in debt resulting therefrom in the Cured Quarter (directly from prepayment or indirectly as a result of netting), (d) all Specified Equity Contributions shall be disregarded for all purposes under the Senior Facilities Documentation other than for determining compliance with the Financial Covenant (other than any determination of pro forma compliance with the Financial Covenant for purposes of any other covenants), and in no event shall any Specified Equity Contribution be additive to any basket or available amount, and (e) there shall be no more than five Specified Equity Contributions during the life of the Senior Facilities. | ||
Unrestricted Subsidiaries: | The Senior Facilities Documentation will contain provisions pursuant to which, subject to customary limitations on investments, loans, advances to, and other investments in, unrestricted subsidiaries, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary as an unrestricted subsidiary and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary (subject to limitations substantially consistent with the Sponsor Precedent); provided, after giving effect to such designation or re-designation, (x) there would be no default or event of default, and (y) the Borrower will be in pro forma compliance with the Financial Covenant. Unrestricted subsidiaries will not be subject to the representations and warranties, affirmative or negative covenants or event of default provisions of the Senior Facilities Documentation and the results of operations and indebtedness of unrestricted subsidiaries will not be taken into account for purposes of determining any financial ratio or covenant contained in the Senior Facilities Documentation. | |
Events of Default: | Limited to the following and consistent with Sponsor Precedent, including with respect to materiality thresholds and grace periods: | |
1. Failure to pay principal, interest, fees or any other amount when due. |
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2. Representations and warranties materially incorrect when given. |
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3. Failure to comply with covenants (with notice and cure periods as applicable). |
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4. Cross-default and cross-acceleration to debt of the Borrower and its material subsidiaries, in each case, aggregating an amount to be agreed. |
Exhibit B-20
Exhibit B
5. Unsatisfied judgment or order in excess of an amount to be agreed individually or in the aggregate. |
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6. Bankruptcy or insolvency. |
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7. ERISA events. |
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8. Change of control. |
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9. Actual or asserted (in writing) invalidity of any material portion of the Collateral or any collateral document or other Senior Facilities Documentation (in the case of the applicable Senior Facility) or the Guarantees. |
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Voting: | Amendments and waivers of the Senior Facilities Documentation will require the approval of Lenders holding more than 50% of the aggregate principal amount of the loans and commitments under the Senior Facilities (the Required Lenders), except, in each case, that the consent of each Lender directly adversely affected thereby shall be required with respect to (a) increases in commitments, (b) reductions of principal, interest or fees (including prepayment premiums), (c) extensions of scheduled amortization or final maturity, (d) releases of all or substantially all of the Collateral (other than in connection with any permitted sale or financing of collateral) or all or substantially all of the Guarantees, , and (e) changes to the amendment or waiver provisions of the Senior Facilities Documentation or the definitions of Required Lenders. The Senior Facilities Documentation will contain customary requirements for matters affecting the Administrative Agent and the Issuing Banks. | |
Notwithstanding the foregoing, amendments and waivers of the Senior Facilities Documentation that affect solely the Lenders under any Senior Facility (including waiver or modification of conditions to extensions of credit under the Revolving Facility, the availability and conditions to funding of any Incremental Facility (but not the conditions for implementing any Incremental Facility as noted above), pricing and other modifications), will require only the consent of Lenders holding more than 50% of the aggregate commitments or loans, as applicable, under such Senior Facility and no other consents or approvals shall be required. The Senior Facilities Documentation will permit amendments thereof without the approval or consent of the |
Exhibit B-21
Exhibit B
Lenders to effect a permitted repricing transaction (i.e., a transaction in which any tranche of Term Loans is refinanced with a replacement tranche of term loans, or is modified with the effect of, bearing a lower rate of interest) other than any Lender holding Term Loans subject to such repricing transaction that will continue as a Lender in respect of the repriced tranche of Term Loans or modified Term Loans. The Senior Facilities Documentation will contain customary provisions regarding defaulting lenders and yank-a-bank provisions relating to non-consenting Lenders consistent with Sponsor Precedent. | ||
Yield Protection, Taxes and Other Deductions, etc.: | The Senior Facilities Documentation will contain yield protection provisions substantially consistent with the Sponsor Precedent, protecting the Lenders and Issuing Banks in the event of unavailability of funding, funding losses, reserve and capital adequacy and liquidity requirements (including with respect to the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Basel III Accord, but only to the extent that the applicable Lender(s) and/or Issuing Banks imposes the same charges on other similarly situated borrowers under comparable credit facilities). The Senior Facilities Documentation will also contain provisions regarding the PATRIOT Act consistent with Sponsor Precedent. | |
All payments are to be free and clear of any present or future taxes, withholdings or other deductions (subject to customary exceptions, including FATCA). | ||
Assignments and Participations: | The Lenders will be permitted to assign (a) loans under the Term Facility with the consent of the Borrower (not to be unreasonably withheld or delayed) and (b) loans and commitments under the Revolving Facility with the consent of the Borrower, the Swingline Lender and the Issuing Banks (in each case, not to be unreasonably withheld, conditioned or delayed), provided that (i) no consent of the Borrower shall be required (A) in the case of the Term Facility only, if such assignment is made to another Lender or an affiliate or approved fund of a Lender, (B) in the case of the Revolving Facility only, if such assignment is made to another Lender that is a Lender under the Revolving Facility, or (C) after the occurrence and during the continuance of a payment or bankruptcy (with respect to the Borrower) Event of Default. All assignments will require the consent of the Administrative Agent, not to be unreasonably withheld, conditioned or delayed. Each assignment will be in an amount of an integral multiple of $1,000,000 with respect to the Term Facility and $5,000,000 with respect to the Revolving Facility or, in each case, if less, all of such Lenders remaining loans and commitments of the applicable class. |
Exhibit B-22
Exhibit B
The Lenders will be permitted to sell participations in loans and commitments without consent being required, subject to customary limitations on participants voting rights. | ||
The Senior Facilities Documentation shall provide that the Term Loans may be purchased by and assigned to the Sponsor or any Non-Debt Fund Affiliates (as defined below) on a non-pro rata basis through (a) open market purchases and/or (b) Dutch auctions open to all Lenders on a pro rata basis in accordance with customary procedures to be agreed; provided that (x) Term Loans owned or held by the Sponsor or any Non-Debt Fund Affiliate shall be excluded in the determination of any vote of the Required Lenders, including in connection with any plan of reorganization, (y) Term Loans owned or held by the Sponsor and any Non- Debt Fund Affiliates shall not, in the aggregate, exceed 25% of the Term Facility (including any Incremental Term Facility), and (z) the Sponsor and any Non-Debt Fund Affiliates shall not be permitted to attend any lender-only conference calls or meetings or receive any related lender-only information. | ||
In addition, the Senior Facilities Documentation shall provide that the Term Loans may be purchased by and assigned to any Debt Fund Affiliate (as defined below) on a non-pro rata basis through (a) open market purchases and/or (b) Dutch auctions open to all Lenders on a pro rata basis in accordance with customary procedures; provided that for any Required Lender vote, Debt Fund Affiliates may not, in the aggregate, account for more than 49.9% of the amounts included in determining whether the Required Lenders have consented to any amendment or waiver. | ||
As used herein: | ||
Non-Debt Fund Affiliate means any affiliate of Holdings other than (i) Holdings or any subsidiary of Holdings, (ii) any Debt Fund Affiliates and (iii) any natural person. | ||
Debt Fund Affiliates means (i) Energy Credit Partners (or any successor thereto), (ii) any fund managed by, or under common management with, Energy Credit Partners (or any successor thereto) and (iii) any other affiliate of Holdings that is a bona fide diversified debt fund or an investment vehicle that is engaged in the making, purchasing, holding or otherwise investing in commercial loans, bonds and similar extensions of credit in the ordinary course. |
Exhibit B-23
Exhibit B
In addition, the Senior Facilities Documentation shall provide that so long as no default or event of default is continuing, Term Loans may be purchased by and assigned to Holdings or any of its subsidiaries on a non- pro rata basis through (a) open market purchases and/or (b) Dutch auctions open to all Lenders on a pro rata basis in accordance with customary procedures to be agreed; provided that (i) any such Term Loans shall be automatically and permanently cancelled immediately upon acquisition thereof by Holdings or any of its subsidiaries and (ii) no proceeds from the Revolving Facility may be used to finance such purchases. | ||
Expenses and Indemnification: | Customary provisions regarding expense reimbursement and indemnification consistent with Sponsor Precedent. | |
EU/UK Bail-In Provisions: | The Senior Facilities Documentation shall contain customary EU/UK bail-in provisions. | |
LIBOR Replacement: | The Senior Facilities Documentation shall contain the ARRC hardwired Benchmark Replacement provisions. | |
Governing Law and Forum: | New York. | |
Counsel to the Lead Arrangers: | Winston & Strawn LLP |
Exhibit B-24
Exhibit B
Interest Rates: | The interest rates under the Senior Facilities will be as follows: | |
Revolving Facility | ||
At the option of the Borrower, initially, (x) Adjusted LIBOR plus 5.50% or (y) ABR plus 4.50%. | ||
From and after the delivery by the Borrower to the Administrative Agent of the Borrowers financial statements for the period ending at least one full fiscal quarter following the Closing Date, interest rates under the Revolving Facility shall be subject to one 25 basis point reduction on a pricing grid to be determined based upon the Consolidated First Lien Net Leverage Ratio set forth in the applicable officers certificate and shall be as agreed upon between the Borrower and the Administrative Agent. | ||
Term Facility | ||
At the option of the Borrower, initially, (x) Adjusted LIBOR plus 5.50% or (y) ABR plus 4.50%. | ||
From and after the delivery by the Borrower to the Administrative Agent of the Borrowers financial statements for the period ending at least one full fiscal quarter following the Closing Date, interest rates under the Term Facility shall be subject to one 25 basis point reduction on a pricing grid to be determined based upon the Consolidated First Lien Net Leverage Ratio set forth in the applicable officers certificate and shall be as agreed upon between the Borrower and the Administrative Agent (the Term Facility Step-Down). | ||
All Senior Facilities | ||
The Borrower may elect interest periods of 1, 2, 3 or 6 months (or, if agreed by all relevant Lenders, 12 months or a shorter period) for LIBOR borrowings. | ||
Calculation of interest shall be on the basis of the actual days elapsed in a year of 360 days (or 365 or 366 days, as the case may be, in the case of ABR loans based on the Prime Rate) and interest shall be payable (i) in the case of LIBOR loans, at the end of each interest period and, in any event, at least every 3 months and (ii) in the case of ABR loans, quarterly in arrears, and in each case on the applicable maturity date. | ||
ABR is the Alternate Base Rate, which is the highest of the Administrative Agents Prime Rate, the Federal Funds Effective Rate plus 1/2 of 1.00%, and one-month Adjusted LIBOR plus 1.00%, subject to a floor of 2.00% for the Term Facility only. |
Exhibit B-25
Exhibit B
Adjusted LIBOR is the London interbank offered rate for dollars, adjusted for customary Eurodollar reserve requirements, if any, and shall be subject to a floor of 1.00% for the Term Facility only; provided that Adjusted LIBOR with respect to the Revolving Facility shall not be less than 0%. | ||
Letter of Credit Fee: | A per annum fee equal to the spread over Adjusted LIBOR under the Revolving Facility will accrue on the aggregate face amount of outstanding letters of credit under the Revolving Facility, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the Lenders participating in the Revolving Facility pro rata in accordance with the amount of each such Lenders Revolving Facility commitment. In addition, the Borrower shall pay to the Issuing Bank, for its own account, (a) a fronting fee equal to 0.125%, per annum, of the aggregate face amount of outstanding Letters of Credit, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary issuance and administration fees. | |
Commitment Fees: | 0.50% per annum on the average daily undrawn portion of the commitments in respect of the Revolving Facility, payable quarterly in arrears after the Closing Date and upon the termination of the commitments, calculated based on the number of days elapsed in a 360-day year and from and after the delivery by the Borrower to the Administrative Agent of the Borrowers financial statements for the period ending at least one full fiscal quarter following the Closing Date, subject to one step-down to 0.375% at a Consolidated First Lien Net Leverage Ratio level of 3.25:1.00. | |
Swingline Loans shall, for purposes of the commitment fee calculations only, not be deemed to be a utilization of the Revolving Facility. |
Exhibit B-26
Exhibit C
Project Harlan
Senior Secured Credit Facilities
Additional Conditions Precedent3
The initial borrowing under each of the Senior Facilities shall be subject to the following additional conditions precedent, which shall be subject to the Certain Funds Provision in all respects and to the last paragraph of this Exhibit C:
1. The terms of the Acquisition Agreement (including all schedules and exhibits thereto) shall be reasonably satisfactory to the Lead Arrangers (it being agreed that the Acquisition Agreement (including all schedules and exhibits thereto) is reasonably satisfactory to the Lead Arrangers). The Acquisition shall have been consummated or shall be consummated substantially simultaneously with the advances under any of the Senior Facilities in accordance with the Acquisition Agreement and all other related documentation (without amendment, modification or waiver thereof or consent thereunder which is materially adverse to the Lenders without the consent of the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed) (it being understood and agreed that (a) any amendment, modification or waiver to the definition of Company Material Adverse Effect in the Acquisition Agreement shall be deemed to be materially adverse to the Lenders and (b) any reduction in the purchase price shall not be deemed to be materially adverse to the Lenders; provided that any reduction shall be allocated to ratably reduce the Equity Contribution and the Term Facility (on a pro rata basis between them) in proportion to the actual percentages that the amount of the Equity Contribution and the Term Facility bear to pro forma total capitalization of the Borrower and its subsidiaries after giving effect to the Transactions). Except as otherwise set forth on the Schedules to the Acquisition Agreement, since Audited Balance Sheet Date (as defined in the Acquisition Agreement), there has not been any Effect (as defined in the Acquisition Agreement) that has had, or would reasonably be expected to have, a Company Material Adverse Effect (as defined in the Acquisition Agreement).
2. The Equity Contribution described in the Transaction Description shall have been consummated, or on the Closing Date substantially concurrently with the initial borrowings under the Term Facility shall be consummated, in at least the amount specified therein. To the extent not comprised of common equity, the terms and conditions of the Equity Contribution shall be reasonably satisfactory to the Lead Arrangers. The Refinancing shall have been consummated or, substantially concurrently with the initial borrowings under the Term Facility, shall be consummated.
3. The Administrative Agent shall have received the Audited Financial Statements and the Unaudited Financial Statements (as each such term is defined in the Acquisition Agreement).
4. The Administrative Agent shall have received a pro forma consolidated balance sheet and income statement of the Borrower as of the last day of the most recently completed four-fiscal-quarter period ended at least 45 days before the Closing Date, or if the most recently completed fiscal period is the end of a fiscal year, ended at least 90 days before the Closing Date (provided that delivery of the Sponsor Model (as updated for financials required to be delivered pursuant to paragraph 3 above) shall be deemed to satisfy delivery of such income statement), substantially in the form of the Sponsor Model previously delivered to the Administrative Agent and prepared after giving effect to the Transactions and such other adjustments as shall be agreed between the Borrower and the Administrative Agent as if such transactions or adjustments had occurred as of such date, in the case of such balance sheet, or at the beginning of such four-fiscal-quarter period, in the case of an updated Sponsor Model.
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All capitalized terms used but not defined herein have the meanings given to them in the Commitment Letter to which this Term Sheet is attached, including the other Exhibits thereto. In the event any such capitalized term is subject to multiple and differing definitions, the appropriate meaning thereof in this Exhibit shall be determined by reference to the context in which it is used. |
Exhibit C
5. The Administrative Agent shall have received from the Borrower or its advisors the following: (a) customary legal opinions, (b) customary evidence of authority, (c) customary officers certificates and (d) good standing certificates and lien searches (to the extent applicable) in the respective jurisdictions of organization of the Borrower and Guarantors, in each case consistent with Sponsor Precedent. The Administrative Agent shall have received a solvency certificate from a financial officer of Holdings, in customary form consistent with Sponsor Precedent, confirming the solvency of Holdings, the
Borrower and the Borrowers restricted subsidiaries on a consolidated basis after giving effect to the
Transactions.
6. To the extent required by the Senior Facilities Documentation and subject to the Certain Funds Provision, all documents and instruments required to create and perfect the Administrative Agents security interest in the Collateral shall have been executed and delivered and, if applicable, be in proper form for filing.
7. The Administrative Agent shall have received three business days prior to the Closing Date (or such later date as the Lead Arrangers reasonably agree) (x) all documentation and other information required by regulatory authorities with respect to the Borrower and the Guarantors under applicable know your customer and anti-money laundering rules and regulations, including without limitation the PATRIOT Act, that has been reasonably requested by the Administrative Agent in writing (including via email) to the Borrower or its counsel at least 10 days in advance of the Closing Date and
(y) if either Borrower qualifies as a legal entity customer under 31 C.F.R. § 1010.230 (the Beneficial Ownership Regulation), a certification regarding beneficial ownership with respect to such Borrower as required by the Beneficial Ownership Regulation for each Lender that so requests (which request shall be made through the Administrative Agent); provided such Borrower has received a list of each such Lender and its electronic delivery requirements at least five business days prior to the Closing Date.
8. The Administrative Agent shall have received all fees and invoiced expenses (to the extent invoiced at least one business day prior to the Closing Date) required to be paid on the Closing Date from the proceeds of the initial fundings under the Senior Facilities.
9. The execution and delivery of the Senior Facilities Documentation, which shall, in each case, be consistent with Exhibit B (subject to the market flex provisions of the Fee Letter) and subject to the Certain Funds Provision.
10. Subject to the Certain Funds Provision, the Specified Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects on the Closing Date (unless such representations relate to an earlier date, in which case, such representations shall have been true and correct in all material respects as of such earlier date).
Notwithstanding the foregoing, the Closing Date shall not occur prior to the later of (i) 11:59 p.m. (New York City time) on the twentieth (20th) Business Day following (and including the day of) commencement of the Offer (as defined in the Acquisition Agreement) (determined pursuant to Exchange Act Rule 14d-1(g)(3)) and (ii) the date that is 40 days following the date of the Acquisition Agreement unless the Lead Arrangers shall have agreed in writing to an earlier date; provided that, at the request of the Borrower, the Closing Date may occur on such earlier date so long as (a) a Successful Syndication has occurred and (b) each of the other conditions to the Closing Date contained herein are (or substantially concurrently therewith will be) satisfied.
Exhibit C-2
Exhibit (d)(2)
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (Agreement) is being entered into as of March 2, 2020 between First Reserve XIV Advisors, L.L.C. (the Counterparty) and Project Harlan (Harlan). The Counterparty and Harlan are referred to collectively as the Parties and individually as a Party.
In order to facilitate the consideration, evaluation and negotiation of a possible negotiated transaction involving the Counterparty (or a subsidiary or other Affiliate thereof) and Harlan (or a subsidiary or other Affiliate thereof) (the Transaction), the Counterparty has requested access to certain non-public information regarding Harlan. This Agreement sets forth the Parties obligations regarding the use and disclosure of such information and regarding various related matters.
It is understood that upon the execution of this Agreement, Stifel shall disclose the name of the Company (which for the avoidance of doubt, shall be considered Confidential Information and subject to the terms of this Agreement) to the Counterparty and the Counterparty shall have two business days from the date of disclosure of the name of the Company to inform Stifel, via email, of whether the Counterparty wishes to receive any Confidential Information about the Company. In the event that the Counterparty elects not to receive such Confidential Information, the Counterparty and its Representatives shall have no further obligation under this Agreement, other than a duty to maintain as confidential the name of the Company, the existence of this Agreement and the existence and nature of the Transaction.
The Parties, intending to be legally bound, acknowledge and agree as follows:
1. Limitations on Use and Disclosure of Confidential Information. Subject to section 4 below, neither the Counterparty nor any of the Counterpartys Representatives (as defined in section 13 below) will, at any time, directly or indirectly: (a) make use of any of the Confidential Information (as defined in section 12 below), except for the specific purpose of considering, evaluating and negotiating a possible Transaction; or (b) disclose any of the Confidential Information to any other Person (as defined in section 13 below). The Counterparty will be liable and responsible for any breach or violation of the applicable terms of this Agreement by any of its Representatives. Without limiting the previous sentence, the Counterparty will (at its own expense) use commercially reasonable efforts to assure that its Representatives do not make any unauthorized use or disclosure of any of the Confidential Information in violation of the terms of this Agreement applicable to Representatives. The Parties acknowledge that the Counterparty is an advisor to a private equity fund and that (a) none of the Counterpartys Affiliates (including any investment fund managed by the Counterparty or its Affiliates or any portfolio company of any such investment fund) shall be deemed to be one of the Counterpartys Representatives or have any obligations hereunder unless such person or entity actually receives or is granted access to Confidential Information, and (b) none of the Counterpartys Affiliates or its or their portfolio companies will be deemed to be a Representative or have any obligation hereunder solely due to the fact that one or more of the Counterpartys managers or employees who has received or had access to Confidential Information serves as an officer or member of the board of directors (or similar governing body) of such Affiliate or portfolio company; provided that such manager or employee does not provide any Confidential Information to the other directors, officers or employees of such Affiliate or portfolio company.
2. Contact Person. Any request by the Counterparty or any of its Representatives to review any of the Confidential Information must be directed to Stifel Financial Corp. (Stifel). Neither the Counterparty nor any of the Counterpartys Representatives acting on the Counterpartys behalf will contact or otherwise communicate with any other Representative of Harlan regarding the Confidential Information or the Transaction without the prior written authorization of Stifel; provided that no consent shall be required to communicate with (i) any of Harlans Representatives who are included as an addressee or copied on any written or recorded correspondence (including, without limitation, any e-mails, text messages
or similar communications) to the Counterparty or to any of its Representatives by Harlan or any of its Representatives in connection with the possible Transaction in response to such correspondence or (ii) any of Harlans Representatives who participate in any telephone call or any meeting with the Counterparty or any of its Representatives in connection with the possible Transaction during such telephone call or meeting. The foregoing is not intended to restrict (i) contacts in the ordinary course of business unrelated to the Confidential Information or the Transaction or (ii) general market diligence on a no names basis not specifically directed at Harlan or the Transaction and without use of Confidential Information.
3. No Representations by Harlan. Harlan will have the exclusive authority to decide what Confidential Information (if any) of Harlan is to be made available to the Counterparty and the Counterpartys Representatives. Neither Harlan nor any of Harlans Representatives will be under any obligation to make any particular Confidential Information available to the Counterparty or any of the Counterpartys Representatives or to supplement or update any Confidential Information previously furnished, except as may be provided in a Definitive Agreement (as defined below). Subject to the last sentence of this section 3, (i) neither Harlan nor any of its Representatives has made or is making, and neither the Counterparty nor any of its Representatives has relied on or is relying on, any representation or warranty, express or implied, regarding Harlan, Harlans business, or the accuracy or completeness of any of the Confidential Information and (ii) neither Harlan nor any of its Representatives will have any liability to the Counterparty or to any of the Counterpartys Representatives relating to or resulting from the use of any of the Confidential Information or any inaccuracies or errors therein or omissions therefrom. Only those representations and warranties (if any) that are included in any validly executed and delivered definitive final written agreement that provides for the consummation of a Transaction (a Definitive Agreement) will have legal effect.
4. Disclosure of Confidential Information; Agreements with Other Persons.
(a) Notwithstanding the limitations set forth in section 1 above: (i) the Counterparty may disclose the Confidential Information if and to the extent that Harlan consents in writing to the Counterpartys disclosure thereof; (ii) subject to section 4(c) below, the Counterparty may disclose the Confidential Information to any Representative of the Counterparty, but only to the extent (A) such Representative needs to know such Confidential Information for the purpose of helping the Counterparty consider, evaluate, negotiate or consummate a possible Transaction and (B) such Representative has agreed to abide by or is otherwise bound by the provisions of this Agreement applicable to a Representative of the Counterparty or is otherwise bound by legal or fiduciary obligations of confidentiality and use with respect to the Confidential Information; and (iii) the Counterparty may disclose Confidential Information to the extent required by law, governmental regulation or rules of a regulatory agency or stock exchange or by subpoena or other valid legal process (a Legal Requirement), in each case in accordance with and subject to section 4(b) below.
(b) If the Counterparty or any of the Counterpartys Representatives is required by a Legal Requirement to disclose any of the Confidential Information to any Person, then the Counterparty will (if legally permitted and reasonably practicable) promptly provide Harlan with written notice of the applicable Legal Requirement so that Harlan may seek a protective order or other appropriate remedy. The Counterparty and its Representatives will cooperate reasonably with Harlan and Harlans Representatives in any attempt by Harlan to obtain any such protective order or other remedy. If Harlan elects not to seek, or is unsuccessful in obtaining, any such protective order or other remedy in connection with any requirement that the Counterparty disclose the Confidential Information, then the Counterparty may disclose such Confidential Information to the extent legally required; provided, however, that the Counterparty and its Representatives will use their reasonable efforts to cause such Confidential Information to be treated confidentially by each Person to whom it is disclosed. Notwithstanding anything to the contrary in this letter agreement, if the Counterparty or any of its Representatives are subject to routine examination by a regulatory governmental agency not specifically directed at Harlan or the Confidential Information, the Counterparty or its Representatives may disclose any Confidential Information as requested by a regulator in the course of any such examination, without complying with the foregoing notice and cooperation requirements.
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(c) Notwithstanding anything to the contrary contained in this Agreement, until the earlier to occur of (x) the expiration of the Standstill Period or (y) the Fall Away Time, without Harlans prior written consent, neither the Counterparty nor any of its Representatives (to the extent that such Representatives act at the direction or encouragement of the Counterparty) shall disclose any of the Confidential Information to:
(i) any existing or prospective debt financing source or lender of or to (x) the Counterparty or (y) any Affiliate of the Counterparty; or
(ii) any existing or prospective financial advisor of or to (x) the Counterparty or (y) any Affiliate of the Counterparty.
(d) Notwithstanding anything to the contrary contained in this Agreement, until the earlier to occur of (x) the expiration of the Standstill Period or (y) the Fall Away Time, the Counterparty covenants that neither the Counterparty nor any of its Representatives (to the extent that such Representatives act at the direction or encouragement of the Counterparty) will enter into, without Harlans prior written consent, any agreement, arrangement or understanding with any other Person that:
(i) provides that any other existing or prospective investor or acquirer or any other Person (other than a Permitted Co-Investor) will refrain from (A) investing in, bidding on or acquiring any securities or assets of Harlan, any subsidiary of Harlan or any other Affiliate of Harlan, (B) merging or combining with Harlan, any subsidiary of Harlan or any other Affiliate of Harlan or (C) engaging in any other transaction involving Harlan, any subsidiary of Harlan or any other Affiliate of Harlan; or
(ii) limits any existing or prospective debt financing source or lender from acting as a debt financing source or lender for any other existing or prospective investor or acquirer; provided that, after Harlan has consented to receipt of Confidential Information by a prospective debt financing source or lender from the Counterparty, the foregoing shall not prohibit the Counterparty from entering into customary tree arrangements with such financing source or lender.
5. Return or Destruction of Confidential Information. Upon Harlans written request, the Counterparty and the Counterpartys Representatives will promptly, in a time legally and practicably possible, deliver to Harlan all of the Confidential Information (and all copies thereof) obtained or possessed by the Counterparty or any of the Counterpartys Representatives (or, in lieu of delivering to Harlan any of the Confidential Information, the Counterparty may destroy such Confidential Information and deliver to Harlan written confirmation (email to suffice) of their destruction); provided that the Counterparty may retain copies of the Confidential Information to the extent (i) required by applicable law, governmental regulation or bona fide compliance policies, or (ii) such Confidential Information is securely backed-up in the ordinary course on the Counterpartys electronic information management and communications systems or servers. Notwithstanding the delivery to Harlan (or the destruction by the Counterparty) of the Confidential Information pursuant to this section 5, the Counterparty and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement. If the Counterparty retains copies of any Confidential Information as permitted by this Section 5, then, notwithstanding any termination of this Agreement, the Counterparty and its Representatives will continue to be bound by their confidentiality obligations and other obligations under this Agreement with respect to such information until the earlier of (i) date on which such Confidential Information is no longer retained, (ii) the date on which such information ceases to be Confidential Information or (iii) the fourth anniversary of the date of this Agreement.
6. Limitation on Soliciting Employees. During the 18-month period commencing on the date of this Agreement, neither the Counterparty nor any of the Counterpartys Representatives (to the extent acting at the Counterpartys direction) will solicit for employment or employ, whether directly or indirectly, any Specified Employee; provided, however, that this section 6 will not prevent the Counterparty or any of the Counterpartys Representatives from: (a) causing to be placed any general advertisement or similar notice that is not targeted specifically at employees of Harlan or any of its subsidiaries (and any hiring as a result thereof); (b) engaging any recruiting firm or similar organization to identify or solicit Persons for employment on behalf of the Counterparty (or a subsidiary thereof), and any hiring as a result thereof, as long as such recruiting firm or organization is not instructed to target any employees of Harlan or any of its subsidiaries; or (c) employing any Specified Employee who contacts the Counterparty on his or her own initiative without any direct or indirect solicitation by or encouragement from the Counterparty in violation of this Agreement or who has not been employed by Harlan (or a subsidiary or other Affiliate thereof) during the preceding six months. For purposes of this section 6, a Person shall be deemed to be a Specified Employee if such Person is identified on Schedule A hereto or is a replacement of an individual identified on Schedule A hereto.
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7. Standstill Provision. During the 12-month period commencing on the date of this Agreement (the Standstill Period), neither the Counterparty nor any of the Counterpartys Representatives (to the extent acting at the Counterpartys direction) will, in any manner, directly or indirectly, without Harlans prior written consent:
(a) make, effect, initiate, cause or participate in (i) any acquisition of beneficial ownership of any securities of Harlan or any securities of any subsidiary or other Affiliate of Harlan, (ii) any acquisition of any assets of Harlan or any assets of any subsidiary or other Affiliate of Harlan, (iii) any tender offer, exchange offer, merger, business combination, recapitalization, restructuring, liquidation, dissolution or extraordinary transaction involving Harlan or any subsidiary or other Affiliate of Harlan, or involving any securities or assets of Harlan or any securities or assets of any subsidiary or other Affiliate of Harlan, or (iv) any solicitation of proxies (as those terms are used in the proxy rules of the Securities and Exchange Commission) or consents with respect to any securities of Harlan;
(b) form, join or participate in a group (as defined in the Securities Exchange Act of 1934 and the rules promulgated thereunder) with respect to the beneficial ownership of any securities of Harlan;
(c) act, alone or in concert with others, to seek to control or influence the management, board of directors or policies of Harlan;
(d) take any action that would reasonably be expected to require Harlan to make a public announcement regarding any of the types of matters set forth in clause (a) of this sentence;
(e) agree or offer to take, or knowingly encourage or propose (publicly or otherwise) the taking of, any action referred to in clause (a), (b), (c) or (d) of this sentence;
(f) assist, induce or knowingly encourage any other Person to take any action of the type referred to in clause (a), (b), (c), (d) or (e) of this sentence;
(g) enter into any discussions, negotiations, arrangement or agreement with any other Person relating to any of the foregoing; or
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(h) publicly request or publicly propose that Harlan or any of Harlans Representatives amend, waive or consider the amendment or waiver of any provision set forth in this section 7.
Notwithstanding the foregoing provisions of Section 7, (1) neither the Counterparty nor its Affiliates shall be prohibited from owning the shares of common stock of Harlan that the Counterparty or its Affiliates own on the date hereof and voting those shares as the Counterparty or its Affiliates see fit on any matter, (2) no Affiliate of the Counterparty shall be prohibited from transferring the shares of common stock of Harlan held by such Affiliate of the Counterparty to another Affiliate of the Counterparty, (3) the foregoing restrictions shall not apply to acquisitions of less than 2% of the equity securities of Harlan or of its subsidiaries, and (4) the restrictions of this Section 7 shall cease and this Section 7 shall not be effective upon and after (such moment in time being referred to herein as the Fall Away Time): (x) the public announcement by Harlan that its board of directors has approved, or that Harlan or its subsidiaries has entered into, a definitive agreement providing for a business combination or sale transaction involving the acquisition of more than 50% of the voting securities of Harlan or any of its principal subsidiaries or all or substantially all of the assets of Harlan and its subsidiaries, taken as a whole, (whether by merger, consolidation, business combination, tender or exchange offer, recapitalization, restructuring, sale, equity issuance or otherwise); (y) any person or group (within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934), other than the Counterparty and its Affiliates in violation of this Agreement, shall have acquired, directly or indirectly, more than 50% of the outstanding voting securities of Harlan or any of its principal subsidiaries or all or substantially all of the assets of Harlan and its subsidiaries, taken as a whole; or (z) the public announcement by any Person or group (other than the Counterparty or its Affiliates) of (i) its commencement or intention to commence a tender offer for shares of Harlan if the board of directors of Harlan recommends that Harlans stockholders accept such tender offer or is neutral in respect of such tender offer or (ii) a proxy contest with respect to a tender offer for shares of Harlan pursuant to which stockholders elect directors who were not nominated by the board of directors of Harlan (or a committee thereof) and such elected directors represent a majority of the board of directors.
For the purpose of clarity, nothing in this section 7 shall restrict the Counterparty or any of the Counterpartys Representatives (to the extent acting on the Counterpartys behalf or for the Counterpartys benefit) from making any proposal regarding a possible Transaction directly to the board of directors of Harlan on a confidential basis if such proposal does not require Harlan to make a public announcement regarding this Agreement, a possible Transaction, or any of the matters described in sections 7(a) through and including 7(g).
The expiration of the Standstill Period will not terminate or otherwise affect any of the other provisions of this Agreement.
8. No Obligation to Pursue Transaction. Unless the Counterparty (or a subsidiary or other Affiliate thereof) and Harlan (or a subsidiary or other Affiliate thereof) enter into a Definitive Agreement, no agreement providing for a Transaction will be deemed to exist between the Counterparty (or a subsidiary or other Affiliate thereof) and Harlan (or a subsidiary or other Affiliate thereof), and no Party (and no subsidiary or other Affiliate of either Party) will be under any obligation to negotiate or enter into any such agreement or Transaction. The Counterparty acknowledges that: (a) Harlan and its Representatives will conduct the process for the potential Transaction as they in their sole discretion determine (including negotiating with any prospective buyer and entering into definitive agreements without prior notice to the Counterparty or any other Person); (b) any procedures relating to the potential Transaction may be changed at any time without notice to the Counterparty or any other Person; (c) Harlan will have the right, in its sole discretion, to reject any proposal made by the Counterparty or any of the Counterpartys Representatives with respect to a transaction involving the Counterparty; and (d) Harlan will have the right to terminate discussions and negotiations with the Counterparty at any time, without giving notice to the Counterparty.
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9. No Waiver. No failure or delay by either Party or any of its Representatives in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, and no single or partial exercise of any such right, power or privilege will preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. No provision of this Agreement can be waived or amended except by means of a written instrument that is validly executed on behalf of both of the Parties and that refers specifically to the particular provision or provisions being waived or amended.
10. Remedies. Each Party acknowledges that money damages would not be a sufficient remedy for any breach of this Agreement by such Party or by any of such Partys Representatives and that the other Party would suffer irreparable harm as a result of any such breach. Accordingly, each Party will also be entitled to seek equitable relief, including injunction and specific performance, as a remedy for any breach or threatened breach of this Agreement by the other Party or any of the other Partys Representatives. The equitable remedies referred to above will not be deemed to be the exclusive remedies for a breach of this Agreement, but rather will be in addition to all other remedies available at law or in equity to the Parties.
11. Successors and Assigns; Applicable Law; Jurisdiction and Venue. This Agreement will be binding upon and inure to the benefit of each Party and its Representatives and their respective heirs, successors and assigns. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware (without giving effect to principles of conflicts of laws). Each Party: (a) irrevocably and unconditionally consents and submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, another state court located within the State of Delaware or, if no state court located within the State of Delaware has jurisdiction, the federal district court for the District of Delaware) for purposes of any action, suit or proceeding arising out of or relating to this Agreement; (b) agrees that service of process, summons, notice or document by U.S. registered mail to the address set forth beneath the name of such Party at the end of this Agreement shall be effective service of process for any such action, suit or proceeding brought against such Party; (d) irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement in such court; and (c) irrevocably and unconditionally waives the right to plead or claim, and irrevocably and unconditionally agrees not to plead or claim, that any action, suit or proceeding arising out of or relating to this Agreement that is brought in such court has been brought in an inconvenient forum.
12. Confidential Information.
(a) For purposes of this Agreement, subject to section 12(b) below, Confidential Information will be deemed to include the following: (i) any information (including any technology, intellectual property, know-how, patent application, test result, research study, business plan, contract provision, budget, forecast or projection) relating directly or indirectly to the business, products or services of Harlan, any predecessor entity or any subsidiary or other Affiliate of Harlan (whether prepared by Harlan or by any other Person and whether in written, electronic, oral or other form) that is or has been made available (whether on or after the date of this Agreement) to the Counterparty or any Representative of the Counterparty who is acting on behalf of or at the direction of the Counterparty in respect of the proposed Transaction by or on behalf of Harlan or any Representative of Harlan; and (ii) such portions of any memorandum, analysis, compilation, summary, interpretation, study, report or other document, record or material that is or has been prepared by or for the Counterparty or any Representative of the Counterparty and to the extent it contains, reflects, interprets or is based directly or indirectly upon any information of the type referred to in clause (i) of this sentence.
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(b) Notwithstanding anything to the contrary in section 12(a) above, Harlans Confidential Information will be deemed not to include: (i) any information that is or becomes available to the public other than as a direct or indirect result of the disclosure of any of such information by the Counterparty or by any of the Counterpartys Representatives in violation hereof; (ii) any information that was in the Counterpartys or its Representatives possession (to the extent any such third party Representatives were acting on behalf of Counterparty) prior to the time it was first made available to the Counterparty or any of the Counterpartys Representatives by or on behalf of Harlan or any of Harlans Representatives, provided that the source of such information was not and is not known to the Counterparty or any of the Counterpartys Representatives to be bound by any contractual or other obligation of confidentiality to Harlan with respect to any of such information; (iii) any information that becomes available to the Counterparty or its Representatives (to the extent any such third party Representatives are acting on behalf of Counterparty) on a non-confidential basis from a source other than Harlan or any of Harlans Representatives, provided that such source is not known to the Counterparty or any of the Counterpartys Representatives to be bound by any contractual or other obligation of confidentiality to Harlan with respect to any of such information; or (iv) any information which is or was independently developed by the Counterparty or its Representatives without violation hereof.
(c) In addition, each Party further agrees that, without the consent of the other Party, such Party will not, and will direct its Representatives not to: disclose to any Person (i) the existence and terms of this Agreement, and the fact that Confidential Information has been made available by Harlan to the Counterparty or any of the Counterpartys Representatives; and (ii) the fact that discussions or negotiations are or may be taking place with respect to a possible Transaction, and the proposed terms of any such Transaction, provided that Harlan may disclose such information on a no names basis in a proxy statement, Form S-4, or other document filed with or furnished to the Securities and Exchange Commission.
13. Miscellaneous.
(a) For purposes of this Agreement, a Persons Representatives will be deemed to include each Person that is or becomes (i) a subsidiary or other Affiliate of such first Person, or (ii) an officer, director, employee, partner, attorney, advisor, accountant, current or potential financing source, capital source or lender, agent or representative of such first Person or of any of such first Persons subsidiaries or other Affiliates; provided that, (x) in each case, the Counterpartys Representatives shall include only such Persons that (A) directly or indirectly act at the direction or encouragement of the Counterparty with respect to the matters contemplated by this Agreement or (B) actually receive or are aware of any of the Confidential Information from or on behalf of the Counterparty and (y) during the Standstill Period, no Representative of the Counterparty other than a Representative that is a Permitted Co-Investor shall be a source of equity financing of, or co-investor or co-acquirer with, the Counterparty with respect to the possible Transaction. Permitted Co-Investors shall mean and be deemed to include any Affiliate of the Counterparty.
(b) For purposes of this Agreement, the term Affiliate shall mean, with respect to any Person, all Persons directly or indirectly controlling, controlled by or under common control with such Person, where control may be by either management authority, contract or equity interest. As used in this definition, control and correlative terms have the meanings ascribed to such words in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
(c) The term Person, as used in this Agreement, will be broadly interpreted to include any individual and any corporation, partnership, entity, group, tribunal or governmental authority.
(d) The bold-faced captions appearing in this Agreement have been included only for convenience and shall not affect or be taken into account in the interpretation of this Agreement.
(e) Except as expressly set forth herein, all of the obligations of the Parties, including the confidentiality and non-use provisions herein, shall terminate on (i) the date stated above therefor in the
case of Sections 5, 6 and 7 or (ii) if not covered by such specific provisions, the earlier of the second anniversary of the date hereof and the date on which the Parties or their affiliates enter into a definitive transaction.
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(f) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
(g) By making Confidential Information or other information available to the Counterparty or the Counterpartys Representatives, Harlan is not, and shall not be deemed to be, granting (expressly or by implication) any license or other right under or with respect to any patent, trade secret, copyright, trademark or other proprietary or intellectual property right.
(h) This Agreement (i) constitutes the entire agreement between the Parties regarding the subject matter hereof, except as may be set forth in a Definitive Agreement and (ii) supersedes any prior agreement between the Parties regarding the subject matter hereof.
(i) This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement. The exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission or by facsimile shall be sufficient to bind the Parties to the terms and conditions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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The Parties have caused this Agreement to be executed as of the first date written above.
Project Harlan | First Reserve XIV Advisors, L.L.C | |||||||
By: |
/s/ John H. Sottile |
By: |
/s/ Robert Gallagher |
|||||
Name: | John H. Sottile | Name: | Robert Gallagher | |||||
Title: | President and Chief Executive Officer | Title: | Deputy General Counsel | |||||
Address: |
1684 W. Hibiscus Blvd. Melbourne, FL 32901 |
Address: |
290 Harbor Dr. Stamford, CT 06902 NDAs@firstreserve.com |
SCHEDULE A
SPECIFIED EMPLOYEES
Exhibit (d)(3)
EXECUTION VERSION
LIMITED GUARANTY
This LIMITED GUARANTY is dated as of November 23, 2020 (this Limited Guaranty) and is by First Reserve Fund XIV, L.P., a Cayman Islands exempted limited partnership (the Guarantor), in favor of The Goldfield Corporation, a Delaware corporation (the Guaranteed Party). Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement (as defined below).
1. Limited Guaranty. To induce the Guaranteed Party to enter into the Merger Agreement, dated as of November 23, 2020 (as it may be amended, restated, supplemented or otherwise modified from time to time, the Merger Agreement), by and among the FR Utility Services, Inc., a Delaware Corporation (Parent), its wholly-owned subsidiary, FR Utility Services Merger Sub, Inc., a Delaware Corporation (Merger Sub) and the Guaranteed Party, the Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, on the terms and subject to the conditions set forth herein, the payment by Parent of all amounts owed to the Guaranteed Party in respect of (a) the Parent Termination Fee pursuant to Section 9.4(c)(i) of the Merger Agreement, (b) if applicable, any amounts payable pursuant to Section 9.4(c)(iii) of the Merger Agreement and (c) if applicable, any amounts payable pursuant to Section 6.15(d) of the Merger Agreement, in each case, solely to the extent such amounts owed are determined by a court of competent jurisdiction in a final, non-appealable judgement to be payable by Parent to the Company pursuant to the terms and conditions of the Merger Agreement ((a), (b) and (c), collectively, the Obligations); provided, that in no event shall the Guarantors aggregate liability under this Limited Guaranty exceed the sum of (x) to the extent payable, the Parent Termination Fee and (y) if applicable, the amounts payable pursuant to Section 6.15(d) and Section 9.4(c)(iii) of the Merger Agreement, which such amounts payable pursuant to Section 6.15(d) and Section 9.4(c)(iii) of the Merger Agreement shall not exceed $1,000,000 (such sum of (x) and (y), the Cap). The Guaranteed Party hereby agrees that in no event shall the Guarantor be required to pay to the Guaranteed Party under, in respect of, or in connection with this Limited Guaranty or the Merger Agreement any amounts other than as expressly set forth herein and that this Limited Guaranty may not be enforced against the Guarantor without giving effect to the limitations set forth herein (including the Cap). All payments hereunder shall be made in lawful money of the United States, in immediately available funds.
2. Nature of Guaranty. Guarantors liability hereunder is absolute, unconditional, irrevocable and continuing irrespective of any modification, amendment or waiver of or any consent to departure from the Merger Agreement or any agreement or instrument related thereto that may be agreed to by Parent. Without limiting the foregoing, the Guaranteed Party shall not be obligated to file any claim relating to the Obligations in the event that Parent becomes subject to a bankruptcy, reorganization or similar proceeding, and the failure of the Guaranteed Party to so file shall not affect the Guarantors obligations hereunder. In the event that any payment hereunder is rescinded or must otherwise be returned for any reason whatsoever, Guarantor shall remain liable hereunder as if such payment had not been made.
This Limited Guaranty is an unconditional and continuing guarantee of payment and not of collection, and the Guaranteed Party shall not be required to proceed against Parent first before proceeding against Guarantor hereunder.
3. Changes in Obligations, Certain Waivers. The Guarantor agrees that its obligations hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (a) the failure or delay on the part of the Guaranteed Party to assert any claim or demand or to enforce any right or remedy against Parent; (b) any change in the time, place or manner of payment of the Obligations or any rescission, waiver, compromise, consolidation or other amendment to or modification of any of the terms or provisions of the Merger Agreement (other than the Obligations) made in accordance with the terms thereof; (c) the addition, substitution or release of any Person now or hereafter liable with respect to the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement); (d) any change in the legal existence, structure or ownership of Parent or any other Person now or hereafter liable with respect to the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement; (e) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or any other Person now or hereafter liable with respect to the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement; (f) the existence of any claim, set-off or other right which the Guarantor may have at any time against Parent or the Guaranteed Party, whether in connection with the Obligations or otherwise; or (g) the adequacy of any other means the Guaranteed Party may have of obtaining payment related to the Obligations; provided, however, that notwithstanding the foregoing, the Guarantor shall be fully released and discharged hereunder if the Obligations are satisfied in full. The Guarantor waives promptness, diligence, notice of the acceptance of this Limited Guaranty and of the Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of any Obligations incurred and all other notices of any kind (other than notices required to be made to Parent pursuant to the Merger Agreement), all defenses which may be available by virtue of any valuation, stay, moratorium or similar applicable Law now or hereafter in effect or any right to require the marshaling of assets of Parent or any other Person now or hereafter liable with respect to the Obligations or otherwise interested in the transactions contemplated by the Merger Agreement (other than fraud by the Guaranteed Party or its Affiliates or defenses to the payment of the Obligations that are available to Parent under the Merger Agreement, each of the foregoing defenses being retained by the Guarantor).
The Guarantor hereby agrees not to assert any rights that it may now have or hereafter acquire against Parent that arise from the existence, payment, performance or enforcement of the Guarantors obligations under or in respect of this Limited Guaranty or any other agreement in connection therewith, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Guaranteed Party against Parent, whether or not such claim, remedy, or right arises in equity or under agreement, contract, statute or common law, including, without limitation, the right to take or receive from Parent, directly or indirectly, in cash or other property or by setoff or in any other manner, payment or security on account of such claim, remedy or right, unless and until all amounts payable by Guarantor under this Limited Guaranty shall have been paid in full in immediately available funds. If any amount shall be paid to Guarantor in violation of the immediately preceding sentence at any time prior to the payment in full in immediately available funds of all amounts payable under this Limited Guaranty, such amount shall be received and held in trust for the benefit of the Guaranteed Party, shall be segregated from other property and funds of the Guarantor and shall forthwith be promptly paid or delivered to the Guaranteed Party in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to all amounts payable by the Guarantor under this Limited Guaranty.
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The Guaranteed Party hereby covenants and agrees that it shall not institute, directly or indirectly, and shall cause its Affiliates not to institute, any Proceeding or bring any other action arising under, or in connection with, the Merger Agreement, the transactions contemplated thereby or the equity commitment letter between the Guarantor and Parent (the Equity Commitment Letter), against the Guarantor or any Non-Recourse Party (as defined in Section 9(a) herein), except for Retained Claims (as defined in Section 9(a) herein).
4. No Waiver; Cumulative Rights. No failure on the part of the Guaranteed Party to exercise, and no delay in exercising, any right, remedy or power hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Guaranteed Party of any right, remedy or power hereunder preclude any other or future exercise of any right, remedy or power hereunder. Each and every right, remedy and power hereby granted to the Guaranteed Party shall be cumulative and not exclusive of any other right, remedy or power, and may be exercised by the Guaranteed Party at any time or from time to time. The Guaranteed Party shall not have any obligation to proceed at any time or in any manner against, or exhaust any or all of the Guaranteed Partys rights against, Parent prior to proceeding against the Guarantor hereunder. For the avoidance of doubt, and notwithstanding anything to the contrary, the Guaranteed Party hereby expressly acknowledges that the only manner in which the Guaranteed Party or any of its Affiliates can obtain any form of money damages or other remedy against the Guarantor or any of the Non-Recourse Parties is pursuant to the express provisions of this Limited Guaranty.
5. Representations and Warranties. The Guarantor hereby represents and warrants that:
(a) it has all requisite power and authority to execute, deliver and perform this Limited Guaranty and the execution, delivery and performance of this Limited Guaranty have been duly and validly authorized by all necessary limited partnership action, and do not violate or contravene any provision of the Guarantors limited partnership agreement or similar organizational documents or any applicable Law binding on the Guarantor or its assets;
(b) all consents, approvals, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this Limited Guaranty by the Guarantor have been obtained or made and all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this Limited Guaranty;
(c) this Limited Guaranty constitutes a legal, valid and binding obligation of the Guarantor enforceable against the Guarantor in accordance with its terms, subject to, as to enforcement, (i) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar applicable Law affecting creditors rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); and
(d) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guaranty, and all funds necessary for the Guarantor to fulfill its obligations under this Limited Guaranty shall be available to the Guarantor (and any permitted assignee pursuant to Section 6 hereof) for so long as this Limited Guaranty shall remain in effect in accordance with Section 8 hereof.
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6. No Assignment. This Limited Guaranty may not be assigned by any party (except by operation of applicable Law) without the prior written consent of the other party, except that, without the prior written consent of the Guaranteed Party, the Guarantor may assign its obligations hereunder to any affiliated fund, alternative investment vehicle or other Affiliate of the Guarantor; provided that no such assignment shall relieve the Guarantor of any of its obligations hereunder. Any attempted assignment in violation of this section shall be null and void.
7. Notices. All notices, requests, claims, demands and other communications hereunder shall be given by the means specified in the Merger Agreement (and shall be deemed given as specified therein), as follows:
if to the Guarantor:
c/o First Reserve XIV Advisors, L.L.C.
290 Harbor Drive
Stamford, CT 06902
Attention: Jeffrey K. Quake
Attention: Michael A. Scardigli
Facsimile: (203) 661-6729
Email: jquake@firstreserve.com
Email: mscardigli@firstreserve.com
with a copy to (which alone shall not constitute notice):
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017
Attention: Michael T. Holick
Facsimile: (212) 455-2502
Email: mholick@stblaw.com
If to the Guaranteed Party, as provided in the Merger Agreement.
8. Continuing Guaranty. This Limited Guaranty may not be revoked or terminated and shall remain in full force and effect and shall be binding on the Guarantor, its successors and permitted assigns until all the Obligations payable under this Limited Guaranty have been paid in full. Notwithstanding the foregoing, this Limited Guaranty shall terminate and the Guarantor shall have no further obligations under this Limited Guaranty as of the earliest to occur of: (i) the Closing, (ii) the date Obligations equal to the Cap have been paid in full, (iii) the date that is three (3) months from the date of termination of the Merger Agreement under circumstances in which Parent would be obligated to pay the Parent Termination Fee pursuant to Section 9.4(c)(i) of the Merger Agreement if the Guaranteed Party has not commenced a Proceeding for payment of the Parent Termination Fee against Parent or the Guarantor under the Merger Agreement and this Limited Guaranty by such three-month anniversary (or if the Guaranteed Party has commenced a Proceeding under the Merger Agreement and this Limited
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Guaranty prior to such date, the relevant date shall be the date that such Proceeding is finally settled or otherwise resolved either in a final judicial determination or by agreement of the Guaranteed Party and the Guarantor (or its permitted assignee) and the Obligations finally determined or agreed to be owed by the Guarantor, if any and subject to the Cap, are satisfied in full), (iv) the date that is three (3) months from the date of termination of the Merger Agreement under circumstances in which Parent would be obligated to make payments with respect to any of the Obligations (other than one in which Parent would be obligated to pay the Parent Termination Fee pursuant to Section 9.4(c)(i) of the Merger Agreement) if the Guaranteed Party has not commenced a Proceeding for payment of such Obligations under the Merger Agreement and this Limited Guaranty by such three-month anniversary (or if the Guaranteed Party has commenced a Proceeding under the Merger Agreement and this Limited Guaranty prior to such date, the relevant date shall be the date that such Proceeding is finally settled or otherwise resolved either in a final judicial determination or by agreement of the Guaranteed Party and the Guarantor (or its permitted assignee) and the Obligations finally determined or agreed to be owed by the Guarantor, if any and subject to the Cap, are satisfied in full), and (v) the termination of the Merger Agreement in accordance with its terms under circumstances in which Parent would not be obligated to make payments with respect to any of the Obligations. Notwithstanding the foregoing, in the event that the Guaranteed Party or any of its Affiliates or their respective successors and assigns asserts in any Proceeding that the provisions of Section 1 hereof limiting the Guarantors liability to the Cap or that any other provisions of this Limited Guaranty are illegal, invalid or unenforceable in whole or in part, or asserting any theory of liability or remedy against the Guarantor or any Non-Recourse Party with respect to the transactions contemplated by the Merger Agreement other than any Retained Claim then (a) the obligations of the Guarantor under this Limited Guaranty shall terminate ab initio and shall thereupon be null and void, (b) if the Guarantor has previously made any payments under this Limited Guaranty, it shall be entitled to recover such payments from the Guaranteed Party, and (c) neither the Guarantor nor any Non-Recourse Parties (as defined below) shall have any liability to the Guaranteed Party or any of its Affiliates with respect to the Merger Agreement, the Equity Commitment Letter, any other documents executed in connection with the Merger Agreement, the transactions contemplated by the Merger Agreement or under this Limited Guaranty.
9. No Recourse.
(a) Notwithstanding anything that may be expressed or implied in this Limited Guaranty or any document or instrument delivered in connection herewith, by its acceptance of the benefits of this Limited Guaranty, the Guaranteed Party covenants, agrees and acknowledges that no Person other than the Guarantor, and any assignee permitted in accordance with Section 6, has any obligations hereunder and that, notwithstanding that the Guarantor or its general partner (or any assignee permitted in accordance with Section 6) is a limited partnership, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any Affiliates of the Guarantor, Parent, or any of their respective past, present or future shareholders, members, partners, managers, directors, officers, employees, Affiliates, agents or representatives or other Parent Related Party of any party to this Agreement (collectively, but not including Guarantor, Parent Merger Sub, and their respective successors and assigns, each a Non-Recourse Party), whether by the enforcement of any judgment or assessment or by any legal or equitable Proceeding, or by virtue of any applicable Law, or otherwise, and the Guaranteed Party further covenants, agrees and acknowledges that the only rights of recovery that the Guaranteed
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Party has in respect of the Merger Agreement or the transactions contemplated thereby are (i) its rights to recover from Parent and Merger Sub under and to the extent provided under the Merger Agreement (Retained Merger Claims); (ii) its right to recover from Guarantor (but not any Non-Recourse Party) under this Limited Guaranty and subject to the Cap, and the other limitations described herein (Retained Guaranty Claims); (iii) claims to the extent permitted by the last sentence of Section 8 under the Equity Commitment Letter (Retained ECL Claims); and (iv) claims under the Confidentiality Agreement solely with respect to the parties thereto (Retained Confidentiality Claims and collectively with the Retained Merger Claims, Retained Guaranty Claims and Retained ECL Claims, the Retained Claims).
(b) The Guaranteed Party acknowledges and agrees that Parent has no assets other than certain contract rights and that no additional funds are expected to be contributed to Parent unless and until the Closing occurs. Recourse against (i) the Guarantor with respect to the Retained Guaranty Claims and Retained ECL Claims; (ii) Parent and Merger Sub with respect to the Retained Merger Claims; and (iii) First Reserve XIV Advisors, L.L.C. with respect to the Retained Confidentiality Claims shall be the sole and exclusive remedy of the Guaranteed Party and all of its Affiliates against the Guarantor and the Non-Recourse Parties in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated thereby, including by piercing of the corporate veil or by a claim by or on behalf of Parent. The Guaranteed Party hereby covenants and agrees that it shall not institute, and it shall cause its Affiliates not to institute, any Proceeding or bring any other claim or action arising under, or in connection with, the Merger Agreement, the Equity Commitment Letter or the transactions contemplated thereby, against the Guarantor or any Non-Recourse Party except for Retained Claims. Nothing set forth in this Limited Guaranty shall confer or give or shall be construed to confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person including the Guarantor, except as expressly set forth herein, provided, however, the Non-Recourse Parties are intended third-party beneficiaries of this Section 9.
10. Governing Law; Submission to Jurisdiction; Selection of Forum; Waiver of Trial by Jury.
(a) This Limited Guaranty and any Proceedings arising out of or related hereto (whether for breach of contract, tortious conduct or otherwise and whether predicated on common law statute or otherwise) shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state.
(b) Each party hereto hereby irrevocably agree (i) that any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Limited Guaranty or any of the transactions contemplated hereby shall be brought in the Chancery Court of the State of Delaware and any state appellate court therefrom, or, if no such state court has proper jurisdiction, the Federal District Court for the District of Delaware located in Wilmington, Delaware, and any appellate court therefrom and (ii) not to commence any such Proceeding in any court except such courts. Each party hereby irrevocably submits to the exclusive jurisdiction of such court in respect of any legal or equitable Proceeding arising out of or relating to this Limited Guaranty or any of the transactions contemplated hereby, or relating to enforcement of any of the terms of this Limited Agreement, and hereby waives, and agrees not to assert, as a defense in any such Proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the Proceeding is brought in an inconvenient forum, that the venue of the Proceeding is improper or that this Limited Guaranty or the transactions contemplated hereby may not be enforced in or by such courts.
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(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATED TO THIS LIMITED GUARANTY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS LIMITED GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 10(C).
11. Counterparts. This Limited Guaranty may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Limited Guaranty shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto, it being understood and agreed that all parties hereto need not sign the same counterpart. Until and unless each party has received a counterpart hereof signed by each other party hereto, this Limited Guaranty shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Signatures to this Limited Guaranty transmitted by electronic mail in PDF form, or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.
12. No Third Party Beneficiaries. Except as provided in the last sentence of Section 9(b), the parties hereby agree that their respective representations, warranties and covenants set forth herein are solely for the benefit of the other party hereto and its successors and permitted assigns, in accordance with and subject to the terms of this Limited Guaranty, and this Limited Guaranty is not intended to, and does not, confer upon any Person other than the parties hereto and their respective successors and permitted assigns any rights or remedies hereunder, including, the right to rely upon the representations and warranties set forth herein.
13. Confidentiality. The existence of this Limited Guaranty and its terms shall be treated as confidential and this letter is being provided to the Guaranteed Party solely in connection with the Merger Agreement. This Limited Guaranty may not be used, circulated, quoted, referred to in any document (other than the Merger Agreement and the Equity Commitment Letter) or otherwise disclosed, except with the written consent of the Guarantor and the Guaranteed Party; provided that no such written consent is required for any disclosure of the existence or terms of this letter to the extent required by Applicable Law, the applicable rules of any national securities exchange or if required in connection with any required filing or notice with any Governmental Authority relating to the transactions contemplated by the Merger Agreement.
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14. Miscellaneous.
(a) This Limited Guaranty and the other agreements, instruments, and documents contemplated hereby or executed in connection herewith contain the complete agreement between the parties and supersede any prior understandings, agreements or representations by or between the parties, written or oral, which may have related to the subject matter hereof in any way. No amendment, modification or waiver of any provision hereof shall be enforceable unless approved by the Guaranteed Party and the Guarantor in writing.
(b) Whenever possible, each provision of this Limited Guaranty shall be interpreted in such manner as to be effective and valid under applicable Law, but if any provision of this Limited Guaranty is held to be prohibited by or invalid under applicable Law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Limited Guaranty, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party, and upon such a holding, the parties shall negotiate in good faith to modify this Limited Guaranty so as to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible; provided, however, that this Limited Guaranty may not be enforced without giving effect to the limitation of the amount payable hereunder to the Cap provided in Section 1 hereof and the provisions of Section 8, Section 9 and this Section 14(b).
(c) The headings of the sections and paragraphs of this Limited Guaranty have been inserted for convenience of reference only and shall in no way restrict or otherwise modify any of the terms or provisions hereof.
(d) All parties acknowledge that each party and its counsel have reviewed this Limited Guaranty and that the language used in this Limited Guaranty shall be deemed to be the language chosen by the parties to express their mutual intent, and no rule of strict construction shall be applied against any Person by reason of such Person having or being deemed to have drafted such provision, or otherwise.
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IN WITNESS WHEREOF, the Guarantor has caused this Limited Guaranty to be executed and delivered as of the date first written above by its officer thereunto duly authorized.
GUARANTOR: | ||
FIRST RESERVE FUND XIV, L.P. | ||
By: First Reserve GP XIV, L.P., its general partner | ||
By: First Reserve GP XIV Limited, its general partner | ||
By: |
/s/ Jeffrey K. Quake |
|
Name: | Jeffrey K. Quake | |
Title: | Managing Director |
Signature Page to Limited Guaranty
GUARANTEED PARTY: | ||
THE GOLDFIELD CORPORATION | ||
By: |
/s/ Stephen R. Wherry |
|
Name: | Stephen R. Wherry | |
Title: | Acting Co-Chief Executive Officer, | |
Senior Vice President, Chief Financial Officer, | ||
Treasurer and Assistant Secretary |
[Signature Page to Limited Guaranty]
Exhibit (d)(4)
EXECUTION VERSION
FIRST RESERVE FUND XIV, L.P.
November 23, 2020
FR Utility Services Merger Sub, Inc.
c/o First Reserve XIV Advisors, L.L.C.
290 Harbor Drive
Stamford, CT 06902
Attention: Jeffrey K Quake
Michael A. Scardigli
Re: Equity Commitment
Ladies and Gentlemen:
1. Reference is made to the Merger Agreement, dated as of November 23, 2020 (as it may be amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the Merger Agreement), by and among FR Utility Services, Inc., a Delaware corporation (Parent), FR Utility Services Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of Parent (Purchaser) and The Goldfield Corporation, a Delaware corporation (the Company). Each capitalized term used and not defined herein shall have the meaning ascribed to it in the Merger Agreement.
2. This letter will confirm the commitment of First Reserve Fund XIV, L.P., a Cayman Islands exempted limited partnership (Equity Sponsor), to provide cash equity of up to $210,000,000 in immediately available funds (the Commitment) solely to enable, on the terms and subject to the conditions of the Merger Agreement, (a) Purchaser to pay the amounts payable by Purchaser upon the consummation of the Offer pursuant to Section 2.1(d) of the Merger Agreement, (b) Parent and the Surviving Corporation, as applicable, to make payments due under Section 2.8(c) of the Merger Agreement, and (c) the payment of any fees and expenses incurred by Parent or Purchaser in connection with the Transactions on the terms and subject to the conditions of the Merger Agreement (clauses (a), (b) and (c), collectively, the Purchasers Obligations), provided, however, that at Equity Sponsors election, any or all of the Commitment may be reduced solely to the extent that Purchasers Obligations will be fully satisfied notwithstanding such reduced equity funding whether by debt financing or otherwise. Equity Sponsor shall not, under any circumstances, be obligated to contribute more than the Commitment to Purchaser. The amount to be funded under this letter may be reduced by Equity Sponsor in the event that Purchaser does not require all of the funds hereunder in order to satisfy its obligations referred to in clauses (a), (b) and (c) of this paragraph. Equity Sponsor may allocate a portion of its investment to other co-investors (Equity Sponsor, together with such other co-investors, the Investors) and/or may cause any commitment (or portion thereof) hereunder to be funded indirectly through one or more entities that an Investor controls; provided, however, that such allocation will not reduce Equity Sponsors Commitment hereunder except to the extent of any amounts actually funded by another Investor.
3. The Equity Sponsors obligation to fund the Commitment under this letter is subject to the terms of this letter and (i) the execution and delivery by the Company, Parent and Purchaser of the Merger Agreement and (ii) the satisfaction or waiver in writing by Purchaser of each of the conditions to the obligations of Parent and Purchaser to consummate the Offer, as set forth in the Offer Conditions, and the Merger as set forth in Section 7.1 of the Merger Agreement (other than conditions that by their nature are to be satisfied at the Closing, but subject to the prior or substantially concurrent satisfaction of such conditions at the Closing) and the substantially concurrent consummation of the Merger in accordance with the terms of the Merger Agreement.
4. Except as otherwise provided in Section 8 of this letter, this letter may only be enforced by Purchaser, and Purchasers other creditors shall not have any rights to enforce this letter or to cause Purchaser to enforce this letter.
5. This letter will terminate automatically and immediately upon the earliest to occur of (a) the Closing, (b) the valid termination of the Merger Agreement, (c) the commencement by or on behalf of the Company or any of its respective Affiliates of any Proceeding (i) under any limited guaranty of even date herewith of any Investor, the Equity Sponsor or their Affiliates in favor of the Company (each, a Limited Guaranty) or (ii) otherwise against any Investor or any Parent Representative (as defined below) in connection with the Merger Agreement or any of the transactions contemplated hereby or thereby (other than the Companys right to seek specific performance pursuant to and subject to the limitations of Section 9.9 of the Merger Agreement), (d) any Person, other than Purchaser, seeking to enforce or to cause Purchaser to enforce (other than the Companys right to seek specific performance pursuant to and subject to the limitations of Section 9.9 of the Merger Agreement) the Commitment hereunder, or (e) the funding of the Commitment in full pursuant to the terms hereof.
6. Notwithstanding anything that may be expressed or implied in this letter, Purchaser, by its acceptance hereof, acknowledges and agrees that (a) notwithstanding that the signatory below is a Cayman Islands exempted limited partnership, no recourse hereunder or under any documents or instruments delivered in connection herewith may be had against any director, officer, agent or employee of any Investor or any of its successors or assigns or any partner, limited partner, member, manager or stockholder of any Investor or any of its successors or assigns or any director, officer, employee, partner, Affiliate, assignee or representative of any of the foregoing, in each case whether current, former or future (any such Person, a Parent Representative), whether by the enforcement of any judgment or assessment or by any legal or equitable proceeding, or by virtue of any applicable Law, and (b) no personal liability whatsoever will attach to, be imposed on or otherwise be incurred by any Parent Representative of any Investor under this letter or any documents or instruments delivered in connection herewith or with the Merger Agreement or for any claim based on, in respect of or by reason of such obligations or by their creation.
7. Equity Sponsor hereby represents and warrants to Purchaser that: (i) the execution, delivery and performance of this letter have been duly and validly authorized by all necessary limited partnership action and does not contravene, conflict with or result in any violation of, or default under (with or without notice or lapse of time, or both), any provision of Equity Sponsors limited partnership agreement or any Applicable Law, Order or contractual restriction applicable to or binding on Equity Sponsor or its assets; (ii) all consents, approvals of, authorizations, permits of, filings with and notifications to, any Governmental Authority necessary for the due execution, delivery and performance of this letter by Equity Sponsor have been obtained or made and all conditions thereof have been duly complied with, and no other action by,
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and no notice to or filing with, any Governmental Authority is required in connection with the execution, delivery or performance of this letter; (iii) this letter constitutes a legal, valid and binding obligation of Equity Sponsor enforceable against Equity Sponsor in accordance with its terms; and (iv) Equity Sponsor has the financial capacity to pay and perform its obligations under this letter in accordance with the terms hereof.
8. Neither this letter nor any of the rights and obligations described herein may be assigned, other than by Equity Sponsor in accordance with the last sentence of Section 2 or an assignment by Equity Sponsor to any investment fund or alternative investment vehicle affiliated with Equity Sponsor. This letter shall inure to the benefit of and be binding upon Purchaser. Nothing set forth in this letter shall be construed to confer upon or give to any person other than the parties hereto and their successors and permitted assigns any rights or remedies under or by reason of the commitment hereunder or to confer upon or give to any person any rights or remedies against any person other than the undersigned under or by reason of this commitment. Neither Purchasers nor its Affiliates creditors shall have any right to enforce this letter or to cause Purchaser or its Affiliates to enforce this letter other than Parent. Notwithstanding the foregoing, subject to the satisfaction of the conditions set forth in Section 3 of this letter and Section 9.9 of the Merger Agreement, the Company shall be entitled to obtain specific performance or other equitable remedies to enforce Purchasers obligation to cause the Commitment to be funded under the circumstances permitted by Section 9.9 of the Merger Agreement, and in such circumstances, the Company may rely on this letter as a third-party beneficiary to cause the Commitment to be so funded.
9. The existence of this letter and its terms shall be treated as confidential and this letter is being provided to Purchaser solely in connection with the Merger Agreement. This letter may not be used, circulated, quoted, referred to in any document or otherwise disclosed, except with the written consent of Equity Sponsor; provided, that no such written consent is required for any disclosure of the existence or terms of this letter to the extent required by Applicable Law, the applicable rules of any national securities exchange or if required in connection with any required filing or notice with any Governmental Authority relating to the transactions contemplated by the Merger Agreement or the enforcement of this letter.
10. Concurrently with the execution and delivery of this letter, Equity Sponsor is executing and delivering to the Company a Limited Guaranty related to certain of Purchasers payment obligations under the Merger Agreement. The Companys remedies against Equity Sponsor under such Limited Guaranty shall, and are intended to be, the sole and exclusive direct or indirect remedies available to the Company and the Company Related Parties against any Investor or any of its Parent Representatives or their respective Affiliates (other than rights of the Company to seek specific performance as expressly described in Section 8 hereof) in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, including in the event Purchaser breaches its obligations under the Merger Agreement, whether or not Purchasers breach is caused by the undersigneds breach of its obligations under this letter.
11. This letter can be amended, supplemented or changed, and any provision hereof can be waived, only by written instrument making specific reference to this letter signed by Equity Sponsor and Purchaser. No action taken pursuant to this letter, including without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance
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with any representation, warranty, covenant or agreement contained herein. The waiver by any party hereto of a breach of any provision of this letter shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver of any right or remedy hereunder shall be valid unless the same shall be in writing and signed by the party against whom such waiver is intended to be effective.
12. This letter and any Proceedings arising out of or related hereto (whether for breach of contract, tortious conduct or otherwise and whether predicated on common law statute or otherwise) shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of law rules of such state. Each party hereto hereby irrevocably agree (i) that any Proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this letter or any of the transactions contemplated hereby shall be brought in the Chancery Court of the State of Delaware and any state appellate court therefrom, or, if no such state court has proper jurisdiction, the Federal District Court for the District of Delaware located in Wilmington, Delaware, and any appellate court therefrom and (ii) not to commence any such Proceeding in any court except such courts. Each party hereby irrevocably submits to the exclusive jurisdiction of such court in respect of any legal or equitable Proceeding arising out of or relating to this letter or any of the transactions contemplated hereby, or relating to enforcement of any of the terms of this letter, and hereby waives, and agrees not to assert, as a defense in any such Proceeding, any claim that it is not subject personally to the jurisdiction of such court, that the Proceeding is brought in an inconvenient forum, that the venue of the Proceeding is improper or that this letter or the transactions contemplated hereby may not be enforced in or by such courts. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING DIRECTLY OR INDIRECTLY OUT OF OR RELATED TO THIS LETTER. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (III) IT MAKES SUCH WAIVERS VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS LETTER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 12.
13. Upon any termination of this letter, this letter shall cease to have force and effect, and there shall be no further liability or obligation on the part of the parties hereto, except that the provisions of Sections 4, 5, 6, 8, 9, 10, 11, 12 and 13 shall survive such termination.
14. This letter may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This letter shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto, it being understood and agreed that all parties hereto need not sign the same counterpart.
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Until and unless each party has received a counterpart hereof signed by each other party hereto, this letter shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Signatures to this letter transmitted by electronic mail in PDF form, or by any other electronic means designed to preserve the original graphic and pictorial appearance of a document, will be deemed to have the same effect as physical delivery of the paper document bearing the original signatures.
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Very truly yours, | ||
FIRST RESERVE FUND XIV, L.P. | ||
By: First Reserve GP XIV, L.P., its general partner | ||
By: First Reserve GP XIV Limited, its general partner | ||
By: | /s/ Jeffrey K. Quake | |
Name: Jeffrey K. Quake | ||
Title: Managing Director |
Accepted and Agreed: | ||
FR UTILITY SERVICES MERGER SUB, INC. | ||
By: | /s/ Jeffrey K. Quake | |
Name: Jeffrey K. Quake | ||
Title: President |
Signature Page to Equity Commitment Letter
Exhibit (d)(5)
Execution Version
Exclusivity Agreement
November 11, 2020
The Goldfield Corporation
1684 W. Hibiscus Boulevard
Melbourne, Florida 32901
Attn:
Ladies and Gentlemen:
In consideration of the time, effort and expenses to be undertaken by First Reserve XIV Advisors, L.L.C. (First Reserve) in connection with the pursuit of a proposed business combination transaction (the Transaction) involving The Goldfield Corporation (the Company), and other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, First Reserve and the Company agree as follows:
Exclusivity
1. As an inducement to First Reserve to continue to pursue the Transaction and the signing of a definitive merger agreement, the Company agrees to work in good faith to negotiate the Transaction with First Reserve on an exclusive basis for the period commencing on the date hereof and ending at 11:59 p.m. (New York City time) on November 18, 2020 (or such later date as the parties hereto may mutually agree in writing, or as may be extended in accordance with this Section, the Exclusivity Period). In the event that at the end of the Exclusivity Period the parties continue to negotiate in good faith towards a Transaction, the Exclusivity Period shall be automatically extended to 11:59 p.m. (New York City time) on November 25, 2020. Upon the execution of this letter agreement, the Company shall, and shall cause its subsidiaries to, and shall instruct (and use its reasonable best efforts to cause) its and its subsidiaries officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, Representative) to, immediately cease and cause to be terminated any discussions or negotiations with any person that may be ongoing with respect to an Acquisition Proposal and shall immediately terminate all physical and electronic dataroom access previously granted to any such person, its subsidiaries or Representatives. During the Exclusivity Period, the Company agrees that neither it nor any of its subsidiaries, nor any of the officers or directors of it or any of its subsidiaries, shall, and shall not authorize their other Representatives to, and shall direct and use reasonable best efforts to cause them not to (i) solicit, initiate, knowingly encourage or knowingly facilitate (including by providing any information) any inquiries or the submission of any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal, (ii) engage in, continue or otherwise participate in discussions or negotiations regarding, or furnish to any person any non-public information concerning the Company or any of its subsidiaries to any person relating to or that could reasonably be expected to lead to any Acquisition Proposal except to notify such person that the Company is not permitted to respond to any Acquisition Proposal during the Exclusivity Period or (iii) recommend, enter into or execute any contract, letter of intent, acquisition agreement, agreement in principle, memorandum of understanding or similar agreement with respect to any Acquisition Proposal. For the avoidance of doubt, First Reserve and the Company hereby agree that they will have no obligation to continue negotiations with each other with respect to the Transaction following expiration of the Exclusivity Period.
2. During the Exclusivity Period, the Company shall promptly (and in any event within twenty-four hours) provide First Reserve notice of (i) the receipt of any Acquisition Proposal and (ii) any inquiries, proposals or offers received by the Company or its Representatives that could reasonably be expected to lead to an Acquisition Proposal and disclose the material terms of such inquiry, proposal or offer (including copies of any written materials related thereto) and the identity of the person or group of persons making such Acquisition Proposal. During the Exclusivity Period, the Company will keep First Reserve reasonably informed of the status and material terms (including material amendments) of any such Acquisition Proposal or other inquiry, proposal or offer that could reasonably be expected to lead to an Acquisition Proposal.
3. The term Acquisition Proposal as used in this letter agreement means any indication of interest, inquiry, offer or proposal, including any amendment or modification to any existing indication of interest, inquiry, offer or proposal from any person or group (as defined under Section 13(d) of the Exchange Act of 1934) of persons, other than First Reserve, the Company or any of their respective affiliates or Representatives (solely in their capacity as such), relating to, in a single transaction or series of related transactions, (a) any merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, spin-off, share exchange, business combination or similar transaction involving the Company or any of its subsidiaries that, if consummated, would result in any person or group (as defined in the Exchange Act of 1934) owning, directly or indirectly, twenty percent (20%) or more of the total voting power of or any class of equity securities of the Company or any of its subsidiaries or of the surviving entity or the resulting direct or indirect parent of the Company or any of its subsidiaries or such surviving entity (or securities convertible into equity securities with such voting power); (b) any transaction (including any single- or multi-step transaction) or series of related transactions directly or indirectly involving (i) the acquisition or purchase of twenty percent (20%) or more of the total voting power of any class of equity securities of the Company or any of its subsidiaries (or securities convertible into equity securities with such voting power), or (ii) the direct or indirect acquisition or purchase of any business or assets of the Company or any of its subsidiary (including equity interests in any subsidiary of the Company) representing twenty percent (20%) or more of the consolidated revenue, net income or assets of the Company and its subsidiaries, taken as a whole; or any (c) tender offer or exchange offer that if consummated would result in any person beneficially owning twenty percent (20%) of more of the total voting power or equity securities of the Company or any of its subsidiaries.
Miscellaneous
4. Each party hereto agrees that this letter agreement expresses the parties interests in continuing discussions regarding the Transaction and does not constitute a binding commitment to execute any definitive agreement with respect to, or otherwise consummate, the Transaction. Except with respect to the matters expressly covered by this letter agreement and the confidentiality agreement, dated March 2, 2020, between First Reserve and the Company, unless and until a definitive agreement regarding a Transaction has been executed and delivered by the parties hereto, none of the parties hereto shall be under any legal or equitable obligation, or have any other liability to the other parties of any nature whatsoever, with respect to a Transaction.
5. This letter agreement may not be amended or modified except by an instrument in writing signed by each of the parties hereto. This letter agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their successors and permitted assigns. This letter
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agreement may not be assigned by either party hereto (whether by operation of law or otherwise) without the prior written consent of the other party. This letter agreement governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of law that would cause the application of law of any jurisdiction other than those of the State of Delaware. The parties hereto agree that irreparable damage would occur in the event that any provision of this letter agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to seek specific performance of the terms hereof, in addition to any other remedy at law or equity and that any requirement for the securing or posting of any bond in connection with such remedy is hereby waived. No failure or delay in exercising any other right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder. This letter agreement may be executed in two or more counterparts (including by means of facsimile or pdf), each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
[Signature page follows]
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If the foregoing is acceptable and agreed to by the Company, please sign on the line provided below to signify such acceptance and agreement.
Very truly yours,
First Reserve XIV Advisors, L.L.C. |
||
By: |
/s/ Jeffrey K. Quake |
|
Name: Jeffrey K. Quake | ||
Title: Managing Director |
Accepted and agreed to as of the date first written above:
The Goldfield Corporation | ||
By: |
/s/ Stephen R. Wherry |
|
Name: Stephen R. Wherry | ||
Title: Acting CO-CEO and Senior Vice President |