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Share Name | Share Symbol | Market | Type |
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American Renal Associates Holdings Inc | NYSE:ARA | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
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0.00 | 0.00% | 11.52 | 0 | 01:00:00 |
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No fee required.
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title of each class of securities to which transaction applies: Common stock, par value $0.01 per share.
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(2)
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Aggregate number of securities to which transaction applies:
35,027,695 shares of common stock subject to the transaction consisting of (i) 34,525,719 shares of common stock issued and outstanding (which number includes 981,074 shares of restricted stock); (ii) 1,479,353 shares of common stock underlying outstanding stock options with exercise prices below $11.50; and (iii) no issued and outstanding restricted stock unit awards.
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(3)
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Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
The filing fee was determined by multiplying 0.0001091 by the underlying value of the transaction of $402,818,488.20, which has been calculated as the sum of (i) 35,027,695 shares of common stock, comprising 34,525,719 shares of common stock issued and outstanding (which number includes 981,074 shares of restricted stock), multiplied by $11.50 per share and (ii) 1,479,353 shares of common stock issuable upon exercise of stock options with exercise prices below $11.50, multiplied by $3.91, which is the excess of $11.50 over $7.59, the weighted-average exercise price of such stock options.
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(4)
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Proposed maximum aggregate value of transaction:
$402,818,488.20
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(5)
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Total fee paid:
$43,947.50
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Fee paid previously with preliminary materials:
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
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(1)
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Amount previously paid:
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(2)
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Form, Schedule or Registration Statement No.:
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(3)
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Filing Party:
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(4)
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Date Filed:
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Proposal No. 1 – To consider and vote on a proposal to adopt the Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), dated October 1, 2020, by and among ARA, IRC Superman Midco, LLC, a Delaware limited liability company (“IRC”) and an affiliate of Nautic Partners, LLC, and Superman Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of IRC (“Merger Sub”), and approve the transactions contemplated thereby, including the merger of Merger Sub with and into ARA, with ARA surviving as a wholly owned subsidiary of IRC (such merger, the “Merger” and such proposal, the “Merger Proposal”); and
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Proposal No. 2 – To consider and vote on a proposal to approve the continuation, postponement or adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes to approve the Merger Proposal at the time of the Special Meeting (the “Adjournment Proposal”).
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“FOR” the Merger Proposal; and
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“FOR” the Adjournment Proposal.
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By Order of the Board of Directors,
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Victoria A. Labriola
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Vice President, General Counsel and Secretary
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Go to the website and follow the instructions, 24 hours a day, seven days a week.
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You will need the number included on your proxy card.
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From a touch-tone telephone, dial and follow the recorded instructions, 24 hours a day, seven days a week.
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You will need the number included on your proxy card in order to vote by telephone.
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Mark your selections on the proxy card.
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Date and sign your name exactly as it appears on your proxy card.
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Mail the proxy card in the enclosed postage-paid envelope provided to you.
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Time and Date
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, Eastern Time, on
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Place
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Online via live webcast at
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Record Date
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Close of business on
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Voting
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Stockholders will be entitled to one vote at the Special Meeting for each share of ARA common stock they owned as of the Record Date.
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Outstanding Common Stock
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shares as of the Record Date.
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Proposal
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Board Recommendation
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1
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Approval of the Merger Proposal (page 84)
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FOR
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2
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Approval of the Adjournment Proposal (page 85)
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FOR
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Without Attending the Special Meeting
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At the Special Meeting
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Internet:
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Internet: Joining the Special Meeting at . See “General Information” for additional requirements.
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Telephone:
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Mail: Completed, signed and returned proxy card no later than .
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certain of our directors and executive officers hold outstanding Common Stock, stock options and restricted stock awards that will be cancelled and converted into the right to receive the Per Share Merger Consideration, net of any applicable exercise price (and subject to applicable tax withholding);
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our executive officers are parties to arrangements with ARA that provide for severance benefits in the event of certain qualifying terminations of employment in connection with the Merger; and
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consummation of the Merger provides for continued indemnification and directors’ and officers’ liability insurance to be provided by IRC and the surviving corporation for a period of six (6) years thereafter.
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initiate, solicit, facilitate and encourage any inquiry or the making of any proposal or offer that constitutes, could constitute, or could reasonably be expected to lead to an Acquisition Proposal (as defined in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation of Other Proposals; Change of Recommendation” of this Proxy Statement, below), including by providing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, ARA and its subsidiaries to any third party, and its Representatives, including potential financing sources, subject to the entry into, and in accordance with, an acceptable confidentiality agreement; provided that ARA will make available to IRC and Merger Sub any non-public information or data concerning ARA or its subsidiaries that is provided to any third party given such access that was not previously made available to IRC or Merger Sub promptly (and in any event within forty-eight (48) hours) after the time it is provided to such third party; and
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engage in, enter into or otherwise participate in any discussions or negotiations with any third parties (and their respective Representatives, including potential financing sources) with respect to any Acquisition Proposals (or inquiries, proposals or offers or other efforts that constitute, could constitute, or could reasonably be expected to lead to an Acquisition Proposal, including any third party that has informed ARA or its Representatives of an intention to make or has publicly announced an intention to make an Acquisition Proposal) and cooperate with or assist or participate in or facilitate or encourage any such inquiries, proposals, offers, discussions or negotiations or any effort or attempt to make any Acquisition Proposals, including granting a waiver, amendment or release under any confidentiality or pre-existing standstill or similar provision with respect to ARA or its subsidiaries;
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initiate, solicit, knowingly facilitate or knowingly encourage an Acquisition Proposal or inquiries or discussions that would likely result in an Acquisition Proposal;
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engage in, enter into, continue or otherwise participate in any discussions or negotiations with a third party, or provide access to ARA’s business, properties, books and records or any non-public information to, any third party relating to an Acquisition Proposal;
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approve, endorse, or publicly propose to approve or recommend, any Acquisition Proposal;
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execute or enter into, any merger agreement, acquisition agreement or similar binding agreement or understanding (other than an acceptable confidentiality agreement) with respect to an Acquisition Proposal; or
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authorize, commit to, agree or publicly propose to do any of the foregoing.
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prior to or simultaneously with any such termination by ARA, ARA pays to IRC any termination fee required pursuant to the Merger Agreement (as further described in the section entitled “The Merger Agreement—Termination Fees” of this Proxy Statement, below), and
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after consultation with its financial advisors and outside legal counsel, the Board (or a duly authorized committee thereof) determines that the failure to make a Change of Recommendation or to terminate the Merger Agreement would be reasonably likely to be inconsistent with its fiduciary duties under applicable law;
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ARA delivers to IRC a written notice (a “Company Notice”), at least four (4) business days before the Board (or a duly authorized committee thereof) takes such action, advising IRC that the Board (or a duly authorized committee thereof) proposes to take such action and containing the material details of such Intervening Event or the material terms and conditions of the Superior Proposal (and includes a copy of the available proposed transaction agreement to be entered into in respect of such Superior Proposal); and
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at or after 5:00 p.m. (New York City time) on the fourth (4th) business day immediately following delivery of the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4th) business day immediately following the day on which the Company Notice is provided, the “Notice Period”), the Board (or a duly authorized committee thereof) determines in good faith (after consultation with its outside counsel and financial advisors) that, after taking into account any changes to the terms of the Merger Agreement agreed to in writing by IRC during the Notice Period, the failure to make a Change of Recommendation or to terminate the Merger Agreement would be reasonably likely to be inconsistent with its fiduciary duties under applicable law or, in the case of an Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal.
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ARA obtaining the Company Requisite Vote (as defined in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation of Other Proposals; Change of Recommendation” of this Proxy Statement, below);
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the expiration or termination of any applicable waiting period (and any extension thereof) under the HSR Act; and
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no law (whether temporary, preliminary or permanent) having been enacted, entered or enforced by any governmental entity which prohibits, restrains or enjoins the consummation of the Merger, and that remains in effect.
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the accuracy of the representations and warranties made by ARA in the Merger Agreement, subject in some instances to materiality qualifiers or in other instances to de minimis inaccuracies, at and as of the Effective Time (except for representations and warranties that expressly relate to a specific date or time);
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ARA’s performance of and compliance with each of its covenants and obligations under the Merger Agreement required to be performed or complied with at or prior to the Effective Time, in all material respects;
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since the date of the Merger Agreement, there having been no Material Adverse Effect (as defined in the section entitled “The Merger Agreement—Representations and Warranties” of this Proxy Statement, below);
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IRC receiving a certificate executed by an executive officer of ARA to the effect that the conditions described in the three (3) preceding bullet points have been satisfied; and
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each of the consents, waivers, approvals or certificates from, and/or notices to, applicable state healthcare regulatory agencies in connection with the Merger having been provided or obtained, as applicable.
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the accuracy of the representations and warranties made by IRC and Merger Sub in the Merger Agreement at and as of the Effective Time (except for representations and warranties that expressly relate to a specific date or time), subject in some instances to materiality qualifiers and exceptions and, in other instances, except where the failure to be true and correct would not reasonably be expected to, in the aggregate, prevent, materially delay or materially impede the consummation of the Merger;
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IRC’s and Merger Sub’s performance of and compliance with each of their respective covenants and obligations under the Merger Agreement required to be performed or complied with at or prior to the Effective Time, in all material respects; and
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ARA receiving a certificate executed by an executive officer of IRC to the effect that the conditions described in the two (2) preceding bullet points have been satisfied.
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by mutual written consent of IRC, Merger Sub and ARA;
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by either IRC or ARA:
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if the Merger is not consummated on or before 5:00 p.m. (Eastern time) on March 1, 2021 (the “End Date”) which End Date may be extended to May 10, 2021 by:
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(i) ARA if, by March 1, 2021, all conditions to the Merger have been satisfied or waived, other than the condition that (A) no order or judgment as a result of a proceeding brought by, or the inaction of, a governmental entity prohibits, restrains or enjoins the consummation of the Merger and/or (B) the applicable waiting period (and any extension thereof) under the HSR Act has expired or terminated and/or (C) all approvals or consents from state healthcare regulatory agencies required in connection with the Merger are received; or
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(ii) IRC if, by March 1, 2021, all conditions to the Merger have been satisfied or waived, other than the condition that (A) no order or judgment resulting from the failure to receive healthcare regulatory approvals and consents prohibits, restrains or enjoins the consummation of the Merger and/or (B) all approvals or consents from state healthcare regulatory agencies required in connection with the Merger are received;
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if any court of competent jurisdiction or other governmental entity in the U.S. has issued any final and non-appealable order or taken any other final action, so long as the terminating party used standard efforts to prevent, oppose and remove such restraint, injunction or other prohibition; or
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if the Company Requisite Vote is not obtained at the Stockholders Meeting (as defined in the section entitled “The Merger Agreement—Stockholders Meeting and Related Actions” of this Proxy Statement, below) or at any adjournment or postponement thereof, at which a vote on the adoption of the Merger Agreement was taken;
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by ARA:
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if IRC or Merger Sub has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of ARA cannot be satisfied at the Effective Time and is not cured on or prior to the by the applicable cure date;
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before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal, so long as ARA has complied with the non-solicitation and related provisions in the Merger Agreement described in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation of Other Proposals; Change of Recommendation” of this Proxy Statement and ARA pays to IRC the termination fee described below; or
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if IRC and Merger Sub fail to consummate the Merger within the permitted time after the closing conditions have been satisfied and ARA has notified IRC in writing that it is ready, willing and able to consummate the Merger;
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by IRC:
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if ARA has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of IRC and Merger Sub cannot be satisfied at the Effective Time and is not cured by the applicable cure date; or
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if prior to obtaining the Company Requisite Vote, the Board makes a Change of Recommendation in a manner adverse to IRC or Merger Sub.
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by ARA before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal with an Excluded Party (as defined in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitations of Other Proposals; Change of Recommendation” of this Proxy Statement, below).
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by ARA before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal with anyone other than an Excluded Party;
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by IRC if the Board has made a Change of Recommendation prior to obtaining the Company Requisite Vote in a manner adverse to IRC or Merger Sub;
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(i) by either IRC or ARA if the Company Requisite Vote has not been obtained at the Stockholders Meeting or on such later date due to any adjournment or postponement thereof or (ii) by IRC if ARA has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of IRC and Merger Sub cannot be satisfied at the Effective Time and the breach is not cured on or prior to applicable cure date, and:
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(A) at any time after the date of the Merger Agreement and prior to the Special Meeting an Acquisition Proposal has been made directly to ARA’s stockholders, the Board or has otherwise become publicly known or, and has not been withdrawn prior to the Special Meeting, or in the case of a termination pursuant to a breach of any representation, warranty, covenant or agreement on the part of ARA, prior to the breach that forms the basis of such termination; and
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(B) within nine (9) months after such termination, ARA has consummated an Acquisition Proposal or entered into a definitive agreement with respect to an Acquisition Proposal (which is subsequently consummated).
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by either IRC or ARA:
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pursuant to a final non-appealable judgment or order arising in connection with a legal action or proceeding brought or initiated by, or which results from the inaction of, a governmental entity which prohibits the Merger;
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because the Merger has not been consummated by the End Date and either (i) there is an order or judgment resulting from a legal action brought or initiated by, or which results from the inaction of, a governmental entity or the approvals under the HSR Act (the “HSR Approval”) have not been
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by ARA if IRC or Merger Sub has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of ARA cannot be satisfied at the Effective Time, and such breach is not cured by IRC or Merger Sub by the applicable cure date; or
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by ARA if IRC and Merger Sub fail to consummate the Merger within the permitted time after the closing conditions have been satisfied and ARA has notified IRC in writing that it is ready, willing and able to consummate the Merger.
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Proposal No. 1: To consider and vote on a proposal to adopt the Merger Agreement, and approve the transactions contemplated thereby, including the Merger (the “Merger Proposal”); and
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Proposal No. 2: To consider and vote on a proposal to approve the continuation, postponement or adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes to approve the Merger Proposal at the time of the Special Meeting (the “Adjournment Proposal”).
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“FOR” the approval of the Merger Proposal; and
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“FOR” the approval of Adjournment Proposal.
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By Internet—You may submit your proxy by going to and by following the instructions on how to complete an electronic proxy card. You will need the number included on your proxy card in order to vote by Internet.
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By Telephone—You may submit your proxy by dialing and by following the recorded instructions. You will need the number included on your proxy card in order to vote by telephone.
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By Mail—You may vote by mail by signing and dating the enclosed proxy card where indicated and by returning the card in the postage-paid envelope provided to you. You should sign your name exactly as it appears on the proxy card. If you are signing in a representative capacity (for example, as guardian, executor, trustee, custodian, attorney or officer of a corporation), indicate your name and title or capacity. Proxy cards with respect to shares held of record must be received no later than .
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voting by Internet or telephone at a later time than your previous vote and prior to the vote at the Special Meeting;
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mailing a properly signed proxy card that has a later date than your previous vote and that is received no later than ;
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delivering, by no later than , a written statement to that effect to our Secretary at our offices at American Renal Associates Holdings, Inc., 500 Cummings Center, Suite 6550, Beverly, Massachusetts 01915, prior to your shares being voted; or
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attending the Special Meeting and voting. Any stockholder of record as of the Record Date attending the Special Meeting may vote his or her shares electronically at the Special Meeting, whether or not a proxy has been previously given, but the presence (without further action) of a stockholder at the Special Meeting will not constitute revocation of a previously given proxy.
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Username: the control number located in the shaded bar on the proxy card
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Meeting password:
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voting by Internet or telephone at a later time than your previous vote and prior to the vote at the Special Meeting;
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mailing a properly signed proxy card that has a later date than your previous vote and that is received no later than ;
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delivering, by no later than , a written statement to that effect to our Secretary at our offices at American Renal Associates Holdings, Inc., 500 Cummings Center, Suite 6550, Beverly, Massachusetts 01915, prior to your shares being voted; or
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attending the Special Meeting and voting. Any stockholder of record as of the Record Date attending the Special Meeting may vote his or her shares electronically at the Special Meeting, whether or not a proxy has been previously given, but the presence (without further action) of a stockholder at the Special Meeting will not constitute revocation of a previously given proxy.
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the inability to consummate the Merger within the anticipated time period, or at all, due to any reason, including the failure to obtain required regulatory approvals or the failure to satisfy the other conditions to the consummation of the Merger; the failure by IRC or Merger Sub to obtain the necessary debt and equity financing arrangements set forth in the commitment letters received in connection with the Merger;
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the risk that the Merger Agreement may be terminated in circumstances requiring ARA to pay a termination fee;
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the risk that the Merger disrupts ARA’s current plans and operations or diverts management’s attention from its ongoing business;
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the effect of the announcement of the Merger on the ability of ARA to retain and hire key personnel and maintain relationships with its customers, suppliers, physician partners and others with whom it does business;
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the effect of the announcement of the Merger on ARA’s operating results and business generally;
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the amount of costs, fees and expenses related to the Merger;
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the risk that ARA’s stock price may decline significantly if the Merger is not consummated;
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the nature, cost and outcome of any litigation and other legal proceedings, including any such proceedings related to the Merger and instituted against ARA and others;
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the effect of the ongoing COVID-19 pandemic and responses thereto;
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the effect of the restatement of ARA’s previously issued financial results and related matters and the related investigation by the Securities and Exchange Commission (the “SEC”);
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ARA’s ability to remediate material weaknesses in ARA’s internal control over financial reporting;
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continuing decline in the number of patients with commercial insurance or any regulatory or other changes leading to changes in the ability of patients with commercial insurance coverage to receive charitable premium support;
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decline in commercial payor reimbursement rates; reduction of government-based payor coverage and reimbursement rates or insufficient rate increases or adjustments that do not cover all of ARA’s operating costs;
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ARA’s ability to successfully develop de novo clinics, acquire existing clinics and attract new nephrologist partners;
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ARA’s ability to compete effectively in the dialysis services industry; the performance of ARA’s joint venture subsidiaries and their ability to make distributions to ARA;
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federal or state healthcare laws that could adversely affect ARA;
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ARA’s ability to comply with all of the complex federal, state and local government regulations that apply to its business, including those in connection with federal and state anti-kickback laws and state laws prohibiting the corporate practice of medicine or fee-splitting;
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heightened federal and state investigations and enforcement efforts;
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changes in the availability and cost of erythropoietin-stimulating agents and other pharmaceuticals used in ARA’s business;
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development of new technologies or government regulation that could decrease the need for dialysis services or decrease ARA’s in-center patient population;
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ARA’s ability to timely and accurately bill for ARA’s services and meet payor billing requirements;
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claims and losses relating to malpractice, professional liability and other matters; the sufficiency of ARA’s insurance coverage for those claims and rising insurances costs, and negative publicity or reputational damage arising from such matters;
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loss of any members of ARA’s senior management;
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damage to ARA’s reputation or ARA’s brand and ARA’s ability to maintain brand recognition;
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ARA’s ability to maintain relationships with its medical directors and renew its medical director agreements;
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shortages of qualified skilled clinical personnel, or higher than normal turnover rates; competition and consolidation in the dialysis services industry;
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deterioration in economic conditions, particularly in states where we operate a large number of clinics, or disruptions in the financial markets or the effects of natural or other disasters, public health crises or adverse weather events;
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the participation of ARA’s physician partners in material strategic and operating decisions and ARA’s ability to favorably resolve any disputes;
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ARA’s ability to honor obligations under the joint venture operating agreements with its physician partners were they to exercise certain put rights and other rights;
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unauthorized disclosure of personally identifiable, protected health or other sensitive or confidential information;
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ARA’s ability to meet its obligations and comply with restrictions under its substantial level of indebtedness; and
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the ability of ARA’s principal stockholder, whose interests may conflict with yours, to strongly influence or effectively control ARA’s corporate decisions.
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Attractive Value. The Board’s belief that the Per Share Merger Consideration represents an attractive value for the shares of our Common Stock, taking into account the Board’s familiarity with our business, operations, assets, operating results, financial condition, prospects and business strategy, and the Board’s belief, based on the course and history of the negotiations between IRC and ARA, that the Per Share Merger Consideration represented the highest consideration that IRC was willing to pay.
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Best Alternative for Maximizing Stockholder Value. The Board considered that the Per Share Merger Consideration was more favorable to our stockholders than the potential value that might result from other alternatives reasonably available to ARA, including the potential stockholder value based on our business plan that could be expected to be generated from remaining an independent public company, the possibility of being acquired by other companies, the possibility of acquisitions of or mergers with other companies and other transactions, as well as the potential benefits, risks and uncertainties associated with such alternatives.
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Risks Relating to Remaining a Stand-Alone Company. The Board reviewed our business, operations, assets, operating results, financial condition, prospects, business strategy, competitive position, and industry, including the potential impact (which cannot be quantified numerically) of those factors on the trading price of our Common Stock, to assess the prospects and risks associated with remaining an independent, stand-alone public company. The Board believed that the acquisition of ARA by IRC for $11.50 per share in cash was more favorable to our stockholders than the value of remaining an independent public company, after accounting for the risks and uncertainties associated with achieving and executing upon our business and financial plans in the short- and long-term as a stand-alone company.
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•
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Certainty of Value. The Per Share Merger Consideration consists solely of cash, which provides immediate liquidity and certainty of value to our stockholders compared to remaining an independent stand-alone company or any transaction in which our stockholders would receive shares of an acquirer’s stock. The Board weighed the certainty of realizing a compelling value for shares of our Common Stock by virtue of the Merger against the uncertain prospect that the trading value for our Common Stock would approach the Per Share Merger Consideration in the foreseeable future, as well as the risks and uncertainties associated with our business, including those described above and the other risks and uncertainties discussed in ARA’s public filings with the SEC. See the section entitled “Where You Can Find More Information” of this Proxy Statement.
|
•
|
Historical Value. The Board considered the value represented by the Per Share Merger Consideration compared against the current and historical trading prices of our Common Stock, including the market performance of our Common Stock relative to those of other participants in ARA’s industry and general market indices, and the fact that the Per Share Merger Consideration represented a premium of approximately 66% over the Common Stock closing price of $6.92 per share on October 1, 2020, the last trading day before the public announcement that ARA entered into the Merger Agreement.
|
•
|
Review Process and Go-Shop. The Board considered the fact that it had engaged in extensive discussions with ARA’s management team, representatives of financial advisers and outside legal counsel, and also took into consideration the financial expertise and prior industry experience held by a number of directors. The Board also considered its historical evaluation of strategic alternatives prior to the signing of the Merger Agreement, as well as the opportunity afforded by the “go shop” process for additional bidders to submit acquisition proposals. The Board further considered that the Independent Committee (as defined in the section entitled “The Merger – Background of the Merger” of this Proxy Statement) was formed to oversee and manage the “go shop” process and was authorized to retain, and did so retain prior to signing of the Merger Agreement, its own financial and legal advisors.
|
•
|
Ability to Respond to Acquisition Proposals (as defined in the section entitled “The Merger Agreement—Stockholders Meeting and Related Actions” of this Proxy Statement, below). The Board
|
•
|
Terms of the Merger Agreement. The Board considered all of the terms and conditions of the Merger Agreement, including the structure of the transaction, the all-cash form of the Per Share Merger Consideration, the limited scope of the conditions to closing, the customary nature of the representations, warranties, and the covenants and agreements of the parties and the right, prior to 11:59 p.m. (New York City time) on November 10, 2020 (the “No-Shop Period Start Date”), for the Board (or a duly authorized committee thereof) to solicit Acquisition Proposals from third parties and to engage in discussions or negotiations with regard to any Acquisition Proposal made by such third parties, and the fact that if the Board (or a duly authorized committee thereof) receives a bona fide written Acquisition Proposal prior to the No-Shop Period Start Date that the Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes or could reasonably be expected to constitute, result in or lead to a Superior Proposal, the Board (or a duly authorized committee thereof) may continue to engage in the foregoing activities with any such third party regarding such Acquisition Proposal following the No-Shop Period Start Date. The Board also considered its ability to change its recommendation to stockholders regarding the Merger Agreement and to terminate the Merger Agreement in response to an Intervening Event (as defined in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation of Other Proposals; Change of Recommendation” of this Proxy Statement, below), subject to payment of a termination fee in favor of IRC. The Board further considered the course and nature of negotiations with IRC, which were conducted at arm’s length and during which the Transaction Committee of the Board and the Board were advised by independent legal and financial advisors. These negotiations ultimately resulted in terms that (i) provide for a significant premium over the trading price of our Common Stock and (ii) provide robust provisions to increase certainty of the consummation of the Merger, absent certain prohibitive events or the submission of a Superior Proposal. The Board believed, based on these negotiations, that these were the most favorable terms available to ARA and our stockholders on which IRC, or an alternative purchaser, would be willing to transact.
|
•
|
Voting Agreement. The Board viewed favorably the willingness of Centerbridge Capital Partners, L.P. and certain of its affiliates (collectively, the “Centerbridge Stockholders”), who together hold approximately 51% of the shares of our Common Stock outstanding, to commit to vote in favor of the Merger Proposal by entry into the Voting Agreement. The Board also considered the fact that the Voting Agreement terminates upon a Change of Recommendation by the Board and upon any termination of the Merger Agreement, including upon ARA’s termination to accept a Superior Proposal, such that the existence of the Voting Agreement would not be likely to deter or inhibit a Superior Proposal.
|
•
|
Fairness Opinion. The Board considered the financial analysis presented to the Board by Goldman Sachs and the opinion of Goldman Sachs rendered to the Board to the effect that, as of October 1, 2020 and based upon and subject to the factors and assumptions set forth in Goldman Sachs’ written opinion, the $11.50 in cash per share of Common Stock to be paid to the holders (other than IRC and its affiliates) of the shares of Common Stock pursuant to the Merger Agreement was fair from a financial point of view to such holders. For more information, see the sections entitled “The Merger—Fairness Opinion of ARA’s Financial Advisor: Goldman Sachs & Co. LLC” of this Proxy Statement.
|
•
|
Likelihood of Consummation. The Board considered the likelihood that the Merger will be consummated, based on, among other things, the limited number of conditions to the Merger, the absence of a financing
|
•
|
Stockholder Approval; Appraisal Rights. The Board considered that the Merger would be subject to the approval of our stockholders, that stockholders would be free to reject the Merger, other than those who entered into the Voting Agreement, and that stockholders who do not vote to adopt the Merger Agreement and who follow certain prescribed procedures are entitled to dissent from the Merger and receive the appraised fair value of their shares, as provided under Delaware law.
|
•
|
No Stockholder Participation in Future Earnings or Growth. The Board considered the fact that ARA will no longer exist as an independent company, and accordingly, our stockholders will no longer participate in any future growth ARA may experience or any potential future appreciation in the value of shares of our Common Stock, and will not participate in any potential future sale of ARA’s business to a third party.
|
•
|
Inability to Solicit Other Takeover Proposals. The Board considered that the Merger Agreement includes a covenant prohibiting ARA from initiating, soliciting, knowingly facilitating or knowingly encouraging any inquiries or discussions with respect to, or the making of, any proposal or offer that constitutes or would be reasonably likely to result in an Acquisition Proposal following the No-Shop Period Start Date. The Board also considered, but did not consider preclusive, the fact that the right afforded to IRC under the Merger Agreement to re-negotiate the terms of the Merger Agreement in response to a Superior Proposal may discourage other parties that might otherwise have an interest in a business combination with, or an acquisition of, ARA.
|
•
|
Termination Fees. The Board considered the fact that ARA may be required to pay a termination fee of approximately $12.1 million if the Merger Agreement is terminated in connection with an Acquisition Proposal that the Board determines is a Superior Proposal and in other certain specified circumstances, and approximately $5 million if the Merger Agreement is terminated under certain specified circumstances in connection with a bona fide written Acquisition Proposal received prior to the No-Shop Period Start Date, and that the amounts of the termination fees are comparable to termination fees in transactions of a similar size, were reasonable, would not likely deter competing bids and would not likely be required to be paid unless ARA entered into a more favorable transaction. The Board also recognized that the provisions in the Merger Agreement relating to these fees were insisted upon by IRC as a condition to entering into the Merger Agreement.
|
•
|
Effect of Public Announcement. The Board considered the effect of the public announcement of ARA entering into the Merger Agreement on our operations, including our relationships with physician partners, customers, patients, suppliers and employees, as well as our ability to attract and retain key personnel while the proposed transaction is pending and the potential adverse effects on our financial results as a result of that disruption, as well as the possibility of any suit, action or proceeding in respect of the Merger Agreement or the transactions contemplated thereby, including the Merger.
|
•
|
Opportunity Costs and Interim Operating Covenants. The Board considered that the focus and resources of our management may become diverted from other important business opportunities and operational matters while working to implement the Merger, which could adversely affect our business. The Board also considered the restrictions on the conduct of our business during the pendency of the Merger, which may delay or prevent ARA from undertaking potential business opportunities that may arise or may negatively affect our ability to attract, retain and motivate key personnel.
|
•
|
Risk the Merger May Not Be Consummated. The Board considered the fact that consummation of the Merger is subject to the satisfaction of certain closing conditions that are not within our control, including receipt of the necessary regulatory clearances and approvals and that no Material Adverse Effect (as defined in the section entitled “The Merger Agreement—Representations and Warranties” of this Proxy Statement,
|
•
|
Litigation. The Board considered the potential for distracting litigation from stockholder suits in connection with the Merger.
|
•
|
Transaction Costs. The Board considered the fact that we have incurred and will continue to incur significant transaction costs and expenses in connection with the Merger, regardless of whether the Merger is consummated.
|
•
|
Potential Differing Interests of Directors and Officers. The Board considered the risk that certain of our directors and executive officers may have interests in the transactions contemplated by the Merger Agreement, including the Merger, as individuals that are in addition to, or that may be different from, the interests of our stockholders. See the section entitled “The Merger—Interests of the Directors and Executive Officers of ARA in the Merger” of this Proxy Statement.
|
•
|
Tax Treatment. The Board considered the fact that the Merger will be a taxable transaction to our stockholders that are U.S. Holders for U.S. federal income tax purposes; and, therefore, such stockholders generally will be required to pay U.S. federal income tax on any gains they recognize as a result of the Merger.
|
•
|
the Merger Agreement;
|
•
|
annual reports to stockholders and Annual Reports on Form 10-K of ARA for the two (2) years ended December 31, 2019;
|
•
|
ARA’s Registration Statement on Form S-1, including the prospectus contained therein dated April 20, 2016 relating to an initial public offering of the shares of Common Stock;
|
•
|
certain interim reports to stockholders and Quarterly Reports on Form 10-Q of ARA;
|
•
|
certain other communications from ARA to its stockholders;
|
•
|
certain publicly available research analyst reports for ARA; and
|
•
|
certain internal financial analyses and forecasts for ARA prepared by its management, as approved for Goldman Sachs’ use by ARA (the “Company Forecasts”), as described in the section entitled “The Merger—Certain Financial Forecasts” of this Proxy Statement, below.
|
•
|
a premium of 66.7% based on the closing price per share of Common Stock of $6.90 on September 30, 2020;
|
•
|
a premium of 10.9% based on the highest closing price per share of Common Stock of $10.37 for the fifty-two (52)-week period ended September 30, 2020;
|
•
|
a premium of 99.0% based on the lowest closing price per share of Common Stock of $5.78 for the fifty-two (52)-week period ended September 30, 2020;
|
•
|
a premium of 64.3% based on the median analyst price target per share of Common Stock of $7.00;
|
•
|
a premium of 79.1% based on the VWAP per share of Common Stock of $6.42 for the thirty (30)-trading day period ended September 30, 2020; and
|
•
|
a premium of 79.7% based on the VWAP per share of Common Stock of $6.40 for the ninety (90)-trading day period ended September 30, 2020.
|
•
|
DaVita Inc.
|
•
|
Fresenius Medical Care AG & Co. KGaA
|
|
| |
Average EV / NTM EBITDA - NCI
Periods Prior to September 30, 2020
|
||||||||||||
|
| |
Since
February
17, 2020
|
| |
Six Months
|
| |
One
Year
|
| |
Two Years
|
| |
Three Years
|
Company
|
| |
7.7x
|
| |
7.7x
|
| |
7.9x
|
| |
7.6x
|
| |
7.7x
|
DaVita
|
| |
8.0x
|
| |
8.0x
|
| |
7.9x
|
| |
7.3x
|
| |
7.5x
|
Fresenius
|
| |
7.3x
|
| |
7.4x
|
| |
7.4x
|
| |
8.1x
|
| |
8.7x
|
|
| |
For the Fiscal Year Ended December 31,
|
||||||||||||
|
| |
2020E
|
| |
2021E
|
| |
2022E
|
| |
2023E
|
| |
2024E
|
|
| |
(in millions)
|
||||||||||||
Patient service operating revenues
|
| |
$811.6
|
| |
$824.0
|
| |
$889.4
|
| |
$955.2
|
| |
$1,034.9
|
Total operating expenses(1)
|
| |
$720.2
|
| |
$723.9
|
| |
$783.4
|
| |
$842.7
|
| |
$913.0
|
Net income
|
| |
$47.8
|
| |
$55.2
|
| |
$60.7
|
| |
$66.9
|
| |
$75.6
|
Adjusted EBITDA(2)
|
| |
$139.1
|
| |
$141.3
|
| |
$149.7
|
| |
$158.7
|
| |
$171.1
|
Adjusted EBITDA less NCI (2)(3)
|
| |
$91.0
|
| |
$92.4
|
| |
$97.8
|
| |
$103.4
|
| |
$111.2
|
Capital expenditures
|
| |
$20.9
|
| |
$28.8
|
| |
$38.3
|
| |
$48.3
|
| |
$56.6
|
Unlevered free cash flow(4)
|
| |
$39.1
|
| |
$38.6
|
| |
$31.1
|
| |
$34.8
|
| |
$33.0
|
Total ending clinics
|
| |
249
|
| |
259
|
| |
273
|
| |
290
|
| |
310
|
(1)
|
Total operating expenses includes patient care costs, general and administrative expenses, depreciation, amortization and impairment, and certain legal and other matters.
|
(2)
|
Excludes stock-based compensation expense and associated payroll taxes, depreciation, amortization and impairment, interest expense, net income tax expense or benefit and other non-income-based taxes, change in fair value of income tax receivable agreement, costs related to certain legal and other matters, severance, executive retirement and related costs and the gain or loss on sale or closure of clinics. Includes the estimated impact of the Coronavirus Aid, Relief and Economic Security Act ( the “CARES Act”) reimbursements for COVID-19 related reduction in patient service operating revenues, net of direct patient care costs in 2020E and COVID-19 related operating expenses.
|
(3)
|
Adjusted EBITDA less NCI equals Adjusted EBITDA minus the share of net income attributable to noncontrolling interests.
|
(4)
|
Unlevered free cash flow equals Adjusted EBITDA less NCI reduced by stock based compensation expense, one-time legal expenses,
|
Name
|
| |
Vested
Stock
Options (#)(1)
|
| |
Value of
Vested
Stock
Options(2)
|
| |
Unvested
Stock
Options
(#)(3)
|
| |
Value of
Unvested
Stock
Options(4)
|
| |
Unvested
Restricted
Stock
(#)(5)
|
| |
Value of
Unvested
Restricted
Stock(6)
|
| |
Shares of
Common
Stock (#)
|
| |
Value of
Common
Stock(6)
|
Current or Former Non-Employee Directors
|
||||||||||||||||||||||||
Michael E. Boxer
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
17,151
|
| |
$197,237
|
| |
83,317(7)
|
| |
$958,146
|
Susanne V. Clark
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
Thomas W. Erickson
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
17,151
|
| |
$197,237
|
| |
50,604(7)
|
| |
$581,946
|
Jeremy W. Gelber
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
Robert H. Fish
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
17,151
|
| |
$197,237
|
| |
26,054
|
| |
$299,621
|
Jared S. Hendricks
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
Christopher J. Hocevar
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
18,679
|
| |
$214,809
|
| |
0
|
| |
$0
|
John M. Jureller
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
17,151
|
| |
$197,237
|
| |
32,284
|
| |
$371,266
|
Steven M. Silver
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
Name
|
| |
Vested
Stock
Options (#)(1)
|
| |
Value of
Vested
Stock
Options(2)
|
| |
Unvested
Stock
Options
(#)(3)
|
| |
Value of
Unvested
Stock
Options(4)
|
| |
Unvested
Restricted
Stock
(#)(5)
|
| |
Value of
Unvested
Restricted
Stock(6)
|
| |
Shares of
Common
Stock (#)
|
| |
Value of
Common
Stock(6)
|
Current or Former Executive Officers
|
||||||||||||||||||||||||
Joseph A. Carlucci
|
| |
199,307
|
| |
$1,002,514
|
| |
0
|
| |
$0
|
| |
174,774
|
| |
$2,009,901
|
| |
1,070,390(7)
|
| |
$12,309,485
|
Syed T. Kamal
|
| |
199,307
|
| |
$1,002,514
|
| |
0
|
| |
$0
|
| |
184,840
|
| |
$2,125,660
|
| |
1,106,396
|
| |
$12,723,554
|
Don E. Williamson
|
| |
17,695
|
| |
$151,115
|
| |
0
|
| |
$0
|
| |
247,121
|
| |
$2,841,892
|
| |
60,161
|
| |
$691,852
|
Victoria A. Labriola
|
| |
3,047
|
| |
$3,992
|
| |
22,041
|
| |
$91,470
|
| |
59,193
|
| |
$680,720
|
| |
5,376
|
| |
$61,824
|
Mark Herbers
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
Jason Boucher(8)
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
0
|
| |
$0
|
| |
N/A
|
| |
N/A
|
(1)
|
Messrs. Carlucci, Kamal, Boxer, Erickson and Jureller, Dr. Williamson and Ms. Labriola also hold 105,000, 48,000, 11,450, 11,450, 11,450, 53,020 and 13,356 vested stock options, respectively, that have a per share exercise price greater than the Per Share Merger Consideration of $11.50.
|
(2)
|
Dollar values are calculated based on the difference between the Per Share Merger Consideration of $11.50 per share and the weighted average exercise price of each executive officer’s vested stock options that are in the money. Messrs. Carlucci’s and Kamal’s vested in the money options have a weighted average exercise price of $6.47. Dr. Williamson’s vested in the money options have a weighted average exercise price of $2.96. Ms. Labriola’s vested in the money options have a weighted average exercise price of $10.19.
|
(3)
|
Messrs. Carlucci and Kamal also hold 595,253 and 218,639 unvested stock options, respectively, with a per share exercise price that is greater than the Per Share Merger Consideration of $11.50.
|
(4)
|
Dollar value is calculated based on the difference between the Per Share Merger Consideration of $11.50 per share and $7.35, the weighted average exercise price of Ms. Labriola’s unvested stock options that are in the money.
|
(5)
|
For Mr. Carlucci, this consists of 158,405 unvested restricted shares and 16,369 performance-based restricted shares that are earned but unvested. For Mr. Kamal, this consists of 78,280 unvested restricted shares, 7,614 performance-based restricted shares that are earned but unvested and 98,946 unvested performance-based restricted shares. For Dr. Williamson, this consists of 107,189 unvested restricted shares, 8,375 performance-based restricted shares that are earned but unvested and 131,557 unvested performance-based restricted shares. For Ms. Labriola, this consists of 30,325 unvested restricted shares and 28,868 unvested performance-based restricted shares.
|
(6)
|
Dollar values are calculated based on the Per Share Merger Consideration of $11.50.
|
(7)
|
Common stock includes shares beneficially held by Messrs. Boxer, Erickson and Carlucci.
|
(8)
|
Mr. Boucher is no longer employed by us; accordingly, information related to Mr. Boucher’s current ownership of shares, if any, is not readily determinable.
|
•
|
continued base salary at the annualized rate of $904,203 for twenty-four (24) months, payable in installments in accordance with our normal payroll practices;
|
•
|
continued health, life and disability benefits at the same levels as provided to active employees until the earlier of (A) twenty-four (24) months following the date of termination and (B) such time that Mr. Carlucci
|
•
|
a pro-rated annual cash incentive bonus in respect of the calendar year during which his services with ARA terminates, subject to the delivery of our final audited financial statements with respect to such year.
|
•
|
continuation of base salary, at the then-current level, for a period of twenty-four (24) months, payable in installments in accordance with our normal payroll practices;
|
•
|
continuation of employee group health, life and disability plans until the earlier of (A) twenty-four (24) months following the date of termination and (B) the date the executive is or becomes eligible for comparable coverage under health, life and disability plans of another employer; and
|
•
|
a pro rata portion of the executive’s bonus for the then-current fiscal year based upon actual performance, payable at the time at which bonuses are normally paid.
|
Name
|
| |
Value of Cash
Severance ($)(1)
|
| |
Value of
Contribution for
Health Benefits ($)(2)
|
| |
Value of Pro-Rated
Bonus ($)(3)
|
| |
Value of
Retention
Bonus ($)(4)
|
| |
Total ($)
|
Joseph A. Carlucci
|
| |
$1,808,406
|
| |
$52,648
|
| |
$904,203
|
| |
$0
|
| |
$2,765,257
|
Syed T. Kamal
|
| |
$1,541,856
|
| |
$37,323
|
| |
$770,928
|
| |
$0
|
| |
$2,350,107
|
Don E. Williamson
|
| |
$1,500,000
|
| |
$40,420
|
| |
$750,000
|
| |
$0
|
| |
$2,290,420
|
Victoria A. Labriola
|
| |
$200,000
|
| |
$0
|
| |
$0
|
| |
$200,000
|
| |
$400,000
|
(1)
|
The value of cash severance includes: with respect to Messrs. Carlucci and Kamal and Dr. Williamson, two times base salary on the assumed termination date; and with respect to Ms. Labriola, the difference between (a) base salary and (b) retention bonus amount. Base salaries reflect the base salary in effect for 2020 without giving effect to COVID-19 related reductions. Accordingly, if any executive officer’s base salary is increased, the actual payments such executive officer may receive may be greater than those set forth in the table above.
|
(2)
|
The value of ARA's contribution for health benefits includes: estimated contributions towards the executive officers’ health insurance for 24 months based on current participation levels and premium rates.
|
(3)
|
The value of the pro-rated bonus assumes target bonuses for 2020 for each executive officer.
|
•
|
holders who may be subject to special treatment under U.S. federal income tax laws, such as: financial institutions, tax-exempt organizations, S corporations, partnerships and any other entities or arrangements treated as partnerships, or any other pass-through entities for U.S. federal income tax purposes or any investors in or owners of any such S corporation, partnership, entity or arrangement, insurance companies, mutual funds, dealers in stocks and securities, traders in securities that elect to use the mark-to-market method of accounting for their securities, regulated investment companies, real estate investment trusts, certain expatriates or former long-term residents of the United States;
|
•
|
or holders holding shares of Common Stock as part of a hedging, constructive sale or conversion, straddle or other risk reducing transaction;
|
•
|
holders that received their shares of Common Stock in a compensatory transaction;
|
•
|
holders that are “controlled foreign corporations” or “passive foreign investment companies”, as those terms are used in the Code;
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holders that have held at any time, directly, indirectly or constructively, more than 5% of our Common Stock;
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holders who own an equity interest, actually or constructively, in IRC or the surviving corporation; or
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holders whose “functional currency” is not the U.S. dollar.
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An individual who is a citizen or resident of the United States;
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A corporation, or other entity taxable as a corporation, created or 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 U.S. federal income taxation regardless of its source; or
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A trust (i) that is subject to the primary supervision of a court within the United States and the control of one or more United States persons as defined in section 7701(a)(30) of the Code or (ii) that has a valid election in effect under applicable Treasury regulations to be treated as a United States person.
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the gain is effectively connected with a trade or business of such Non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment maintained by such Non-U.S. Holder in the United States), in which case such gain generally will be subject to U.S. federal income tax at rates generally applicable to U.S. persons, and, if the Non-U.S. Holder is a corporation, such gain may also be subject to the branch profits tax at a rate of 30% (or a lower rate under an applicable tax treaty);
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such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition, and certain other specified conditions are met, in which case such gain (net of certain losses) will be subject to U.S. federal income tax at a rate of 30% (or a lower rate under an applicable tax treaty); or
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ARA is or has been a “United States real property holding corporation” as such term is defined in Section 897(c) of the Code (a “USRPHC”), at any time within the shorter of the five-year period preceding the Merger or such Non-U.S. Holder's holding period with respect to the applicable shares of Common Stock (referred to as the “relevant period”) and such Non-U.S. Holder owns or has owned (directly, indirectly or constructively) more than five percent of the shares of Common Stock at any time during the relevant period, in which case such gain will be subject to U.S. federal income tax at rates generally applicable to U.S. persons (as described in the first bullet point above), except that the branch profits tax will not apply. Although there can be no assurances in this regard, ARA believes that it is not, and has not been, a USRPHC at any time during the five-year period preceding the Merger.
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corporate organization, existence, good standing and corporate power and authority;
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corporate power and authority to enter into the Merger Agreement and to perform thereunder;
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the absence of certain violations, defaults or consent requirements under certain contracts, organizational documents and law, in each case arising out of the execution, delivery or performance of, consummation of the transactions contemplated by, or compliance with any of the provisions of the Merger Agreement;
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required regulatory filings or actions and authorizations, consents or approvals of governmental entities and other persons;
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the absence of certain litigation, orders and judgments and governmental proceedings and investigations related to IRC and its subsidiaries or ARA and its subsidiaries (as applicable);
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matters relating to information to be included in required filings with the SEC in connection with the Merger, including this Proxy Statement; and
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the absence of any fees owed to investment bankers or brokers in connection with the Merger.
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the capitalization and authorized issuance of ARA’s equity securities, including the authorized capital stock, outstanding options, restricted stock awards and restricted stock unit awards;
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the equity securities owned by ARA in its subsidiaries and clinic joint ventures;
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the timeliness and accuracy of ARA’s filings with the SEC and of financial statements included in its SEC filings;
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ARA’s disclosure controls and procedures and internal control over financial reporting and compliance with the Sarbanes-Oxley Act;
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the absence of certain events or changes in the business of ARA between June 30, 2020 and October 1, 2020, including that there has not been a “Material Adverse Effect” (as defined below);
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the absence of undisclosed liabilities;
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certain categories of specified material contracts, including as to effectiveness and lack of breach or default for such contracts and the absence of any material claims or disputes pending or threatened under such material contracts;
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the compliance by ARA and its subsidiaries with applicable law and licenses, permits and other authorizations;
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real property owned or leased by ARA or any of its subsidiaries;
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the ownership of or rights with respect to, and lack of infringement with respect to, intellectual property owned or used by ARA and its subsidiaries;
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insurance policies of ARA or any of its subsidiaries;
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the payment of taxes, the filing of tax returns, lack of tax audits or proceedings and other tax matters related to ARA and its subsidiaries;
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ARA’s employee benefit plans and other agreements with its employees;
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labor matters related to ARA and its subsidiaries and their respective employees;
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environmental matters and compliance with environmental laws by ARA and its subsidiaries;
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certain contracts with the U.S. government and the lack of violations thereof;
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the Board’s recommendation to stockholders in favor of the Merger and the required stockholder approval in order to effect the Merger;
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the receipt by the Board of the opinion of Goldman Sachs as to the fairness of the Per Share Merger Consideration, from a financial point of view, to the holders (other than IRC and its affiliates) of shares of Common Stock;
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regulatory matters and compliance with health care laws by ARA and its subsidiaries; and
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the absence of certain affiliate transactions.
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the debt and equity financing commitments received by IRC and Merger Sub, and the sufficiency of the funds committed to be provided therein;
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the absence of agreements with third parties regarding ARA or the Merger that would limit IRC’s or Merger Sub’s ability to comply with its obligations under the Merger Agreement;
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the solvency of IRC following the consummation of the Merger; and
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the ownership by IRC of all of the issued and outstanding capital stock of Merger Sub.
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has had or reasonably would be expected to have a material adverse effect on or with respect to the business, results of operation or financial condition of ARA and its subsidiaries taken as a whole; provided, however, that no fact, event, development, change, effect, circumstance or occurrence relating to, arising out of or in connection with or resulting from any of the following will be deemed, either alone or in combination, to constitute or contribute to, a “Material Adverse Effect” (subject to the limitations set forth below):
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general changes or developments in the economy, political conditions in the United States or elsewhere in the world (including protests or political unrest) or the financial, debt, capital, credit, commodities or securities markets in the United States or elsewhere in the world (collectively, “General Effects”);
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general changes or developments in the industries in which ARA or its subsidiaries operate (collectively, “Industry Effects”);
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the negotiation, execution or delivery of the Merger Agreement or the public announcement or pendency of the Merger or other transactions contemplated by the Merger Agreement, including any impact thereof on relationships, contractual or otherwise, with customers, suppliers, patients, payors, regulators, lenders, partners, employees, joint venture partners or similar relationships of ARA and its subsidiaries, or the compliance with the terms of the Merger Agreement and the transactions contemplated thereby, including compliance with the covenants set forth herein;
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any action taken or omitted to be taken by ARA at the written request of or with the written consent of IRC or Merger Sub or expressly required by the Merger Agreement;
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changes or prospective or anticipated changes, occurring after the date of the Merger Agreement, in any applicable laws (including any health care laws) or applicable accounting regulations or principles or interpretation or enforcement thereof (collectively, “Changes in Laws”);
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any hurricane, tornado, earthquake, flood, tsunami, mudslide or other natural disaster, weather condition, explosion or fire or other force majeure event or act of God or other comparable events or outbreak or escalation of hostilities or war (whether or not declared), military actions or any, act of sabotage, terrorism, epidemics or pandemics (including COVID-19), disease outbreaks or national or international political or social conditions (including social unrest) or any escalation or worsening relating to the foregoing, including any escalation or worsening of any stoppages or shutdowns, or any response of any governmental entity (including requirements for business closures or “sheltering-in-place”), related to any of the foregoing (collectively, “Acts of God”);
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any matter (including actions taken by the SEC or the Department of Justice (the “DOJ”)) relating to the restatement of ARA’s financial statements filed in ARA’s Annual Report on Form 10-K on September 5, 2019 or the underlying causes thereof and all related claims, investigations, proceedings, actions or actions taken by a governmental entity with respect thereto;
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any change in the market price or trading volume of the shares of Common Stock or the credit rating of ARA or any of its subsidiaries;
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any failure by ARA to meet any published analyst estimates or expectations of ARA’s revenue, earnings or other financial performance or results of operations for any period, in and of itself, or any failure by ARA to meet its internal or published projections, budgets, plans or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (it being understood that the underlying facts, events or circumstances giving rise to or contributing to such change or failure may be deemed to constitute, and may be taken into account in determining, whether there has been a Material Adverse Effect);
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any determination or decision by, or delay of a determination or decision by, or any recommendation, statement or other pronouncement made or proposed by, any governmental entity or any panel or advisory body empowered or appointed thereby with respect to the uses, reimbursement scheme, pricing, or status for any services offered by ARA or any of its subsidiaries, or any such determinations, decisions, recommendations, statements or pronouncements with respect thereto (collectively, “Governmental Determinations”); or
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any matter disclosed in the ARA Disclosure Schedule (as defined in the Merger Agreement); except in the cases of (i) General Effects, (ii) Industry Effects, (iii) Changes in Laws, (iv) Acts of God or (v) Governmental Determinations, to the extent that ARA and its subsidiaries, taken as a whole, are materially disproportionately affected thereby as compared with other participants operating in the industry in which ARA and its subsidiaries conduct business (in which case solely the incremental disproportionate impact or impacts may be taken into account in determining whether there has been a Material Adverse Effect); or
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would reasonably be expected to prevent or materially delay the consummation of the Merger past the End Date (as defined below).
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initiate, solicit, facilitate and encourage any inquiry or the making of any proposal or offer that constitutes, could constitute, or could reasonably be expected to lead to an Acquisition Proposal (as defined below), including by providing information (including non-public information and data) regarding, and affording access to the business, properties, assets, books, records and personnel of, ARA and its subsidiaries to any third party, and its Representatives, including potential financing sources, subject to the entry into, and in accordance with, an acceptable confidentiality agreement; provided that ARA will make available to IRC and Merger Sub any non-public information or data concerning ARA or its subsidiaries that is provided to any third party given such access that was not previously made available to IRC or Merger Sub promptly (and in any event within forty-eight (48) hours) after the time it is provided to such third party; and
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engage in, enter into or otherwise participate in any discussions or negotiations with any third parties (and their respective Representatives, including potential financing sources) with respect to any Acquisition Proposals (or inquiries, proposals or offers or other efforts that constitute, could constitute, or could reasonably be expected to lead to an Acquisition Proposal, including any third party that has informed ARA or its Representatives of an intention to make or has publicly announced an intention to make an Acquisition Proposal) and cooperate with or assist or participate in or facilitate or encourage any such inquiries, proposals, offers, discussions or negotiations or any effort or attempt to make any Acquisition Proposals, including granting a waiver, amendment or release under any confidentiality or pre-existing standstill or similar provision with respect to ARA or its subsidiaries;
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initiate, solicit, knowingly facilitate or knowingly encourage an Acquisition Proposal or inquiries or discussions that would likely result in an Acquisition Proposal;
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engage in, enter into, continue or otherwise participate in any discussions or negotiations with a third party, or provide access to ARA’s business, properties, books and records or any non-public information to, any third party relating to an Acquisition Proposal;
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approve, endorse, or publicly propose to approve or recommend, any Acquisition Proposal;
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execute or enter into, any merger agreement, acquisition agreement or similar binding agreement or understanding (other than an acceptable confidentiality agreement) with respect to an Acquisition Proposal; or
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authorize, commit to, agree or publicly propose to do any of the foregoing.
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withdraw or rescind (or change or qualify, in a manner materially adverse to IRC or Merger Sub), or publicly propose to withdraw or rescind (or change or qualify, in a manner materially adverse to IRC or Merger Sub) its recommendation that the stockholders of ARA adopt the Merger Agreement (the “Recommendation”) in a manner materially adverse to IRC,
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fail to include the recommendation in this Proxy Statement,
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C.
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approve, adopt or recommend or publicly propose to approve, adopt or recommend, any Acquisition Proposal,
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D.
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fail to announce publicly, within ten (10) business days after a tender offer or exchange offer relating to any securities of ARA has been commenced, that the Board (or a duly authorized committee thereof) recommends rejection of such tender or exchange offer (each such action set forth in clauses (A) through (D) being a “Change of Recommendation”), or
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E.
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authorize, cause or permit ARA to enter into a merger agreement, binding letter of intent, share purchase agreement, asset purchase agreement, share exchange agreement or other similar binding agreement (other than any acceptable confidentiality agreement) relating to any Acquisition Proposal or recommend any tender offer providing for, with respect to, or in connection with any Acquisition Proposal.
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prior to or simultaneously with any such termination by ARA, ARA pays to IRC any termination fee required pursuant to the Merger Agreement (as further described in the section entitled “The Merger Agreement—Termination Fees” of this Proxy Statement, below), and
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after consultation with its financial advisors and outside legal counsel, the Board (or a duly authorized committee thereof) determines that the failure to make a Change of Recommendation or to terminate the Merger Agreement would be reasonably likely to be inconsistent with its fiduciary duties under applicable law;
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ARA delivers to IRC a written notice (a “Company Notice”), at least four (4) business days before the Board (or a duly authorized committee thereof) takes such action, advising IRC that the Board (or a duly authorized committee thereof) proposes to take such action and containing the material details of such Intervening Event or the material terms and conditions of the Superior Proposal (and includes a copy of the available proposed transaction agreement to be entered into in respect of such Superior Proposal); and
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at or after 5:00 p.m. (New York City time) on the fourth (4th) business day immediately following delivery of the Company Notice (such period from the time the Company Notice is provided until 5:00 p.m. New York City time on the fourth (4th) business day immediately following the day on which the Company Notice is provided, the “Notice Period”), the Board (or a duly authorized committee thereof) determines in good faith (after consultation with its outside counsel and financial advisors) that, after taking into account any changes to the terms of the Merger Agreement agreed to in writing by IRC during the Notice Period, the failure to make a Change of Recommendation or to terminate the Merger Agreement would be reasonably likely to be inconsistent with its fiduciary duties under applicable law or, in the case of an Acquisition Proposal, that such Acquisition Proposal continues to constitute a Superior Proposal.
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“Acquisition Proposal” means any proposal or offer from any person or entity (each, a “Person”) or group of Persons (other than IRC, Merger Sub or their respective affiliates) relating to (A) any direct or indirect acquisition, purchase, sale, lease or other disposition of assets of ARA or its subsidiaries, in one transaction or a series of related transactions, that constitutes 15% or more of the consolidated revenues, net income or assets of ARA and its subsidiaries, taken as a whole, (B) any issuance of shares of Common Stock representing 15% or more of the total voting power of the equity securities of ARA, (C) any tender offer or exchange offer that if consummated would result in any Person beneficially owning 15% or more of the total voting power of the equity securities of ARA, (D) any merger, reorganization, consolidation, share exchange, business combination, recapitalization, liquidation, dissolution or similar business combination transaction involving the equity of ARA, or (E) any combination of the foregoing.
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“Company Requisite Vote” means the affirmative vote (in person or by proxy) of the holders of a majority of all of the outstanding share of Common Stock entitled to vote thereon at the Stockholders Meeting (as defined in the section entitled “The Merger Agreement—Stockholders Meeting and Related Actions” of this Proxy Statement, below), or any adjournment or postponement thereof, to adopt the Merger Agreement.
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“Excluded Party” means any Person or group of Persons from whom ARA, the Board (or a duly authorized committee thereof) or any of their respective Representatives has received a bona fide written Acquisition Proposal after the execution of the Merger Agreement and prior to the No-Shop Period Start Date that the Board (or a duly authorized committee thereof) determines in good faith (such determination to be made prior to the No-Shop Period Start Date and after consultation with its outside counsel and financial advisor) constitutes or is reasonably likely to result in a Superior Proposal; provided that any Person shall immediately and irrevocably cease to be an Excluded Party (and the provisions of the Merger Agreement applicable to Excluded Parties shall cease to apply with respect to such Person) if the Acquisition Proposal submitted by such Person is withdrawn or terminated (it being understood that a modification of an Acquisition Proposal submitted by such Person or group of Persons shall not, in and of itself, be deemed to be a withdrawal or termination of an Acquisition Proposal submitted by such Person or group of Persons).
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“Intervening Event” means any material event, occurrence, development or change in circumstances with respect to ARA and its subsidiaries, taken as a whole, which (A) (i) was unknown to, and was not reasonably foreseeable by, the Board (or a duly authorized committee thereof) as of the date hereof, or (ii) if known to, or reasonably foreseeable by, the Board (or a duly authorized committee thereof) as of the date hereof, the material consequences of which were not known and reasonably foreseeable to the Board (or a duly authorized committee thereof) as of the date hereof and (B) becomes known to or by the Board (or a duly authorized committee thereof) prior to the time the Company Requisite Vote is obtained; provided, however, that none of the following will alone constitute an Intervening Event: changes in the market price or trading volume of the shares of Common Stock or the fact that ARA meets or exceeds internal or published projections, budgets, forecasts or estimates of revenues, earnings or other financial results for any period (provided, however, that the underlying causes of such changes or fact shall not be excluded by the foregoing).
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“Superior Proposal” means a bona fide written Acquisition Proposal (except that the references therein to “15%” shall be replaced by “50%”), in each case, that the Board (or a duly authorized committee thereof) in good faith determines, after consultation with its outside legal counsel and financial advisor, after taking
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salary, wage rate and target bonus opportunity for each continuing employee immediately prior to the Effective Time that are no less favorable in the aggregate than the salary, wage rate and target bonus opportunity that was provided to such continuing employee immediately prior to the Effective Time;
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welfare and other retirement benefits that are substantially comparable in the aggregate to the welfare and other retirement benefits provided to such continuing employee immediately prior to the Effective Time; and
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maintain for the benefit of each continuing employee, a severance or termination arrangement that is substantially similar (or more favorable than) a severance or termination arrangement that was provided to such continuing employees immediately prior to the Effective Date.
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cooperate in all respects with each other in connection with any filing and in connection with any investigation or other inquiry, including any legal proceeding initiated by a private party;
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provide to the other party as promptly as reasonably practicable all information required for any application or other filing to be made by the other party pursuant to any applicable law in connection with the transactions contemplated by the Merger Agreement;
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promptly notify the other party of any communication received by such party from the Federal Trade Commission (the “FTC”), the Antitrust Division of the DOJ or any other U.S. or foreign governmental entity and of any communication received or given in connection with any legal proceeding by a private party, and, subject to applicable law, furnish the other party promptly with copies of all correspondence, filings and communications between them and the FTC, the DOJ, or any other governmental entity with respect to the transactions contemplated by the Merger Agreement or, until the Effective Time, the Subsequent Transaction;
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respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by the DOJ, FTC, or by any other governmental entity in respect of such registrations, declarations and filings or such transactions; and
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permit the other party to review in advance any substantive communication given by it to, and consult with each other in advance, and consider in good faith the other party’s reasonable comments in connection with, any submission, communication, meeting or conference with, the FTC, the DOJ or any other governmental entity or, in connection with any legal proceeding by a private party, with any other third party.
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amend the certificate of incorporation of ARA or the bylaws of ARA or amend other similar organizational documents of any of its subsidiaries or clinic joint ventures, except, in the case of subsidiaries and clinic joint ventures, for amendments that would not be materially adverse to ARA or any subsidiary or clinic joint venture or adversely impact the transactions contemplated by the Merger Agreement;
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except with respect to transactions among wholly owned subsidiaries of ARA, make any acquisition of (whether by merger, consolidation or acquisition of stock or substantially all of the assets or otherwise), or make any investment in any interest in, any Person, in each case, except for (A) purchases of equipment, inventory and other assets in the ordinary course of business consistent with past practice or pursuant to the express terms of existing contracts, (B) acquisitions or investments that do not exceed $2 million in the aggregate, (C) acquisitions of or investments in clinic joint ventures that are not (x) in accordance with the terms of the Merger Agreement, (y) set forth on the ARA Disclosure Schedule or (z) in an aggregate amount exceeding $5 million and (D) acquisitions of equity interests or investments in existing clinic joint ventures as required pursuant to the terms of the governing documents of such clinic joint ventures or the acquisition of the interests of defaulting partners in any clinic joint venture;
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issue, sell, grant, pledge, encumber or dispose of (or authorize the issuance, sale, grant, pledge, encumbrance or disposition of), any shares of capital stock, ownership interests or voting securities, or any options, warrants, convertible securities or other rights of any kind to acquire or receive any shares of capital stock, any other ownership interests or any voting securities (including stock appreciation rights, phantom stock or similar instruments), of ARA, any of its subsidiaries or any clinic joint ventures (except (A) for the issuance of shares of Common Stock upon the exercise, vesting or settlement of Options, Restricted Stock or RSU Awards (as each is defined in the Merger Agreement) outstanding as of the date of the Merger Agreement, (B) for any issuance, sale or disposition to ARA or a wholly owned subsidiary of ARA by any subsidiary of ARA, (C) the issuance of equity interests in clinic joint ventures as required pursuant to the terms of the governing documents of such clinic joint ventures), or (D) for sales or dispositions with respect to any of ARA’s subsidiaries or any clinic joint venture to physicians or other providers at such clinic joint ventures in the ordinary course of business consistent with past practice so long as, in each case of this clause (D), ARA maintains, directly or indirectly, a majority equity ownership interest in such subsidiary or clinic joint venture following such sale or disposition; it being understood that ARA or any of its subsidiaries will not sell or dispose of any equity interests in any clinic joint venture where it does not otherwise own the majority of the outstanding equity interests in such clinic joint venture;
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amend the terms of any joint venture agreement, other than (A) to account for transactions permitted by the Merger Agreement, (B) pursuant to applicable law or regulatory safe harbors or (C) for amendments that would not be materially adverse to ARA, its subsidiaries or any clinic joint venture or adversely impact the transactions contemplated hereby;
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reclassify, combine, split, subdivide, redeem, purchase or otherwise acquire any shares of capital stock, ownership interests or voting securities of ARA or any of its subsidiaries (except (A) for the acquisition of
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other than Permitted Liens (as defined in the Merger Agreement), create or incur any lien on any material assets of ARA or its subsidiaries (other than existing liens on the assets of subsidiaries acquired following the date hereof or other than in connection with indebtedness permitted to be incurred pursuant to the Merger Agreement);
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sell or otherwise dispose of (whether by merger, consolidation or disposition of stock or assets or otherwise) the capital stock or other equity interest in any Person or otherwise sell, assign, transfer, license, abandon or dispose of any material assets, rights or properties of any Person other than (A) as permitted pursuant to the Merger Agreement, (B) sales, dispositions or licensing of equipment and/or inventory and other assets in the ordinary course of business consistent with past practice or pursuant to the express terms of existing contracts or (C) other sales, assignments or dispositions of assets, rights or properties to ARA or of assets, rights or properties with a value of less than $2 million in the aggregate;
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declare, set aside, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to any of its capital stock or other equity interests (except for (A) any dividend or distribution by a subsidiary of ARA to ARA or to a wholly owned subsidiary of ARA or (B) solely with respect to any clinic joint venture, any cash dividend or cash distribution made to all equity owners of such clinic joint venture in proportion to their equity ownership thereof as required pursuant to the terms of the governing documents of such clinic joint ventures, as may be amended as described above);
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other than in the ordinary course of business consistent with past practice or as required by law, (A) modify, terminate, assign (other than to a subsidiary of ARA or any clinic joint venture) or amend in any material respect any Material Contract (as defined in the Merger Agreement) or (B) enter into a new contract that, if entered into prior to the date of the Merger Agreement, would have been a Material Contract (other than as permitted pursuant to the Merger Agreement); provided, that ARA and its subsidiaries will not take certain actions specified in ARA Disclosure Schedules;
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except for (A) revolver borrowings and/or letters of credit under ARA’s and its subsidiaries’ credit facilities in an amount not to exceed the sum of $2 million plus the fees, costs and expenses incurred, or to be incurred, by ARA and its subsidiaries in connection with the transactions contemplated hereby and the matters set forth in the ARA Disclosure Schedule, (B) the litigation matter set forth in the ARA Disclosure Schedule, (C) intercompany loans between ARA and any of its subsidiaries or between any subsidiaries incurred in the ordinary course of business consistent with past practice, (D) loans between ARA and any of its subsidiaries, on the one hand, and any clinic joint venture, on the other hand, in the ordinary course consistent with past practice or (E) the refinancing of any indebtedness outstanding as of the date of the Merger Agreement for a principal amount that is equal to or less than the principal amount of such indebtedness outstanding as of the date hereof, (i) create or incur indebtedness in excess of $4 million in the aggregate or (ii) modify in any material respect in a manner adverse to ARA the terms of or extend the maturity of, any such indebtedness, or assume, guarantee or endorse the obligations of any Person (other than a subsidiary of ARA or a clinic joint venture), in each case, in excess of $1 million in the aggregate;
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except as required pursuant to the terms of any Company Plan (as defined in the Merger Agreement), (A) increase the compensation or benefits of any of its directors, officers or other employees other than in the ordinary course of business consistent with past practice, (B) grant any severance or termination pay to any of its directors, officers or other employees not provided for under any Company Plan, other than in the ordinary course of business consistent with past practice, (C) enter into any employment, consulting or severance agreement or arrangement with any of its directors, officers or other employees that provides for annual expected payments of greater than $200,000, (D) take any action to accelerate the vesting or payment, or the funding of any payment or benefit under, any Company Plan, (E) establish, adopt, enter into, modify or amend in any material respect or terminate any Company Plan, except as would not materially increase the costs to ARA or (F) hire or terminate the employment or services of any employee with annual expected compensation of greater than $200,000, other than a replacement hiring or a termination for cause or due to permanent disability;
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make any material change in the financial accounting policies or procedures used by ARA or any of its subsidiaries or any of the methods of reporting income, deductions or other items for financial accounting purposes used by ARA or any of its subsidiaries, except as required by GAAP or applicable law;
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other than in the ordinary course of business or as required by applicable law or GAAP, (A) make or change any material tax election, (B) settle, consent to or compromise any material tax claim or assessment, (C) surrender any material claim for a refund of taxes, (D) enter into any material closing agreement with respect to material taxes with a taxing authority, or (E) amend any material tax return, in the case of each of (A), (B), (D) and (E), that would materially increase the taxes payable by ARA and its subsidiaries;
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other than as required by applicable law, enter into or amend in any material respect any material collective bargaining agreement with any labor organization representing any Company Employees (as defined in the Merger Agreement);
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settle or compromise any pending or threatened legal action or proceeding, other than settlements or compromises of legal actions or proceedings that involve only the payment by ARA or its subsidiaries of monetary damages not in excess of $1 million individually or $3 million in the aggregate, in either case in excess of amounts paid by an insurer, it being understood that no litigation will be settled or compromised other than in accordance with the Merger Agreement;
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implement any “mass layoffs” or “plant closings” that would reasonably be expected to trigger notification requirements pursuant to the WARN Act (as such terms are defined by the WARN Act);
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other than as contemplated by the capital budget of ARA set forth on the ARA Disclosure Schedules, make any capital expenditures that exceed $5 million in the aggregate;
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•
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adopt a rights plan, “poison pill” or similar agreement that is, or at the Effective Time will be, applicable to IRC and its controlled affiliates in connection with the Merger Agreement or the Merger;
|
•
|
enter into a plan of complete or partial liquidation, dissolution, merger, consolidation or recapitalization of ARA or enter into a new line of business;
|
•
|
engage in any transaction with, or enter into any agreement, arrangement or understanding with, any affiliate of ARA or other Person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K promulgated by the SEC;
|
•
|
fail to maintain in full force and effect material insurance policies or comparative replacement policies covering ARA and its subsidiaries and their respective properties, assets and businesses in a form and amount consistent with past practice; or
|
•
|
agree, authorize or commit to take any of the foregoing actions.
|
•
|
the filing by ARA of this Proxy Statement with the SEC and cooperation in response to any comments from the SEC with respect to this Proxy Statement;
|
•
|
notification upon the occurrence of certain matters;
|
•
|
the coordination of press releases and other public announcements or filings relating to the transactions;
|
•
|
actions required to cause the disposition of certain options, awards and securities by individuals subject to the reporting requirements of Section 16(a) of the Exchange Act;
|
•
|
the delisting of ARA and of the shares of Common Stock from the New York Stock Exchange and the deregistration of Common Stock under the Exchange Act;
|
•
|
the repayment and termination of ARA’s existing credit agreement with Truist Bank;
|
•
|
the Tax Receivable Agreement dated as of April 26, 2016, by and between Centerbridge Capital Partners, L.P. and ARA remaining in full force and effect;
|
•
|
any litigation against ARA and/or its directors or its executive officers relating to or in connection with the Merger Agreement, the Merger or any other transactions contemplated by the Merger Agreement; and
|
•
|
IRC’s efforts to obtain the debt and equity financing pursuant to the corresponding commitment letters entered into by IRC and its affiliates on the date of the Merger Agreement, as well as ARA’s cooperation with IRC’s efforts.
|
•
|
ARA obtaining the Company Requisite Vote;
|
•
|
the expiration or termination of any applicable waiting period (and any extension thereof) under the HSR Act; and
|
•
|
no law (whether temporary, preliminary or permanent) having been enacted, entered or enforced by any governmental entity which prohibits, restrains or enjoins the consummation of the Merger, and that remains in effect.
|
•
|
the accuracy of the representations and warranties made by ARA in the Merger Agreement, subject in some instances to materiality qualifiers or in other instances to de minimis inaccuracies, at and as of the Effective Time (except for representations and warranties that expressly relate to a specific date or time);
|
•
|
ARA’s performance of and compliance with each of its covenants and obligations under the Merger Agreement required to be performed or complied with at or prior to the Effective Time, in all material respects;
|
•
|
since the date of the Merger Agreement, there having been no “Material Adverse Effect” (as defined in the section entitled “The Merger Agreement—Representations and Warranties” of this Proxy Statement, above);
|
•
|
IRC receiving a certificate executed by an executive officer of ARA to the effect that the conditions described in the three (3) preceding bullet points have been satisfied; and
|
•
|
each of the consents, waivers, approvals or certificates from, and/or notice to, applicable state healthcare regulatory agencies in connection with the Merger having been provided or obtained, as applicable.
|
•
|
the accuracy of the representations and warranties made by IRC and Merger Sub in the Merger Agreement at and as of the Effective Time (except for representations and warranties that expressly relate to a specific date or time), subject in some instances to materiality qualifiers and exceptions and, in other instances, except where the failure to be true and correct would not reasonably be expected to, in the aggregate, prevent, materially delay or materially impede the consummation of the Merger;
|
•
|
IRC’s and Merger Sub’s performance of and compliance with each of their respective covenants and obligations under the Merger Agreement required to be performed or complied with at or prior to the Effective Time, in all material respects; and
|
•
|
ARA receiving a certificate executed by an executive officer of IRC to the effect that the conditions described in the two (2) preceding bullet points have been satisfied.
|
•
|
by mutual written consent of IRC, Merger Sub and ARA;
|
•
|
by either IRC or ARA:
|
○
|
if the Merger is not consummated on or before 5:00 p.m. (Eastern time) on March 1, 2021 (the “End Date”) which End Date may be extended to May 10, 2021 by:
|
•
|
(i) ARA if, by March 1, 2021, all conditions to the Merger have been satisfied or waived other than the condition that (A) no order or judgment as a result of a proceeding brought by, or the inaction of, a governmental entity prohibits, restrains or enjoins the consummation of the Merger and/or (B) the applicable waiting period (and any extension thereof) under the HSR Act has expired or terminated and/or (C) all approvals or consents from state healthcare regulatory agencies required in connection with the Merger are received; or
|
•
|
(ii) IRC if, by March 1, 2021, all conditions to the Merger have been satisfied or waived other than the condition that (A) no order or judgment resulting from the failure to receive healthcare regulatory approvals and consents prohibits, restrains or enjoins the consummation of the Merger and/or (B) all approvals or consents from state healthcare regulatory agencies required in connection with the Merger are received;
|
○
|
if any court of competent jurisdiction or other governmental entity in the U.S. has issued any final and non-appealable order or taken any other final action, so long as the terminating party used standard efforts to prevent, oppose and remove such restraint, injunction or other prohibition; or
|
○
|
if the Company Requisite Vote is not obtained at the Stockholders Meeting or at any adjournment or postponement thereof, at which a vote on the adoption of the Merger Agreement was taken;
|
•
|
by ARA:
|
○
|
if IRC or Merger Sub has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of ARA cannot be satisfied at the Effective Time and is not cured on or prior to the by the applicable cure date;
|
○
|
before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal, so long as ARA has complied with the non-solicitation and related provisions in the Merger Agreement described in the section entitled “The Merger Agreement—Other Covenants and Agreements—No Solicitation of Other Proposals; Change of Recommendation” of this Proxy Statement and ARA pays to IRC the termination fee described below; or
|
○
|
if IRC and Merger Sub fail to consummate the Merger within the permitted time after the closing conditions have been satisfied and ARA has notified IRC in writing that it is ready, willing and able to consummate the Merger;
|
•
|
by IRC:
|
○
|
if ARA has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of IRC and Merger Sub cannot be satisfied at the Effective Time and is not cured by the applicable cure date; or
|
○
|
if prior to obtaining the Company Requisite Vote, the Board makes a Change of Recommendation in a manner adverse to IRC or Merger Sub.
|
•
|
by ARA before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal with an Excluded Party.
|
•
|
by ARA before obtaining the Company Requisite Vote, in order to enter into a definitive agreement with respect to a Superior Proposal with anyone other than an Excluded Party;
|
•
|
by IRC if the Board has made a Change of Recommendation prior to obtaining the Company Requisite Vote in a manner adverse to IRC or Merger Sub; or
|
•
|
(i) by either IRC or ARA if the Company Requisite Vote has not been obtained at the Stockholders Meeting or on such later date due to any adjournment or postponement thereof or (ii) by IRC if ARA has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of IRC and Merger Sub cannot be satisfied at the Effective Time and the breach is not cured on or prior to applicable cure date, and:
|
○
|
(A) at any time after the date of the Merger Agreement and prior to the Special Meeting an Acquisition Proposal has been made directly to ARA’s stockholders, the Board or has otherwise become publicly known or, and has not been withdrawn prior to the Special Meeting, or in the case of a termination pursuant to a breach of any representation, warranty, covenant or agreement on the part of ARA, prior to the breach that forms the basis of such termination; and
|
○
|
(B) within nine (9) months after such termination, ARA has consummated an Acquisition Proposal or entered into a definitive agreement with respect to an Acquisition Proposal (which is subsequently consummated).
|
•
|
by either IRC or ARA:
|
○
|
pursuant to a final non-appealable judgment or order arising in connection with a legal action or proceeding brought or initiated by, or which results from the inaction of, a governmental entity which prohibits the Merger; or
|
○
|
because the Merger has not been consummated by the End Date and either (i) there is an order or judgment resulting from a legal action brought or initiated by, or which results from the inaction of, a governmental entity or the approvals under the HSR Act (the “HSR Approval”) have not been obtained (or there is an agreement not to consummate the transaction contemplated by the Merger Agreement with any governmental entity with authority over the HSR Approval) or the consents, waivers, approvals or certificates required from applicable state healthcare regulatory agencies in connection with the Merger have not been satisfied or otherwise waived by IRC or (ii) ARA could have terminated the Merger Agreement pursuant to one of the following two (2) bullet points;
|
•
|
by ARA if IRC or Merger Sub has breached any representation, warranty, covenant or agreement set forth in the Merger Agreement such that the conditions to the Merger to the benefit of ARA cannot be satisfied at the Effective Time, and such breach is not cured by IRC or Merger Sub by the applicable cure date; or
|
•
|
by ARA if IRC and Merger Sub fail to consummate the Merger within the permitted time after the closing conditions have been satisfied and ARA has notified IRC in writing that it is ready, willing and able to consummate the Merger.
|
|
| |
The Board of Directors unanimously recommends a vote “FOR” the Merger Proposal.
|
|
| |
The Board of Directors unanimously recommends a vote “FOR” the Adjournment Proposal
|
•
|
each person or group who is known by us to own beneficially more than 5% of our Common Stock;
|
•
|
each director and named executive officer; and
|
•
|
all of the directors and executive officers as a group.
|
Name of Beneficial Owner
|
| |
Number of Shares Beneficially
Owned
|
| |
Percent of
Class (%)
|
Principal Stockholders:
|
| |
|
| |
|
Centerbridge Capital Partners, L.P. and certain affiliated entities(1)
|
| |
17,615,836
|
| |
51.0
|
Van Berkom & Associates Inc.(2)
|
| |
2,889,745
|
| |
8.4
|
Directors and Named Executive Officers:
|
| |
|
| |
|
Joseph A. Carlucci(3)
|
| |
1,549,471
|
| |
4.5
|
Syed T. Kamal(4)
|
| |
1,538,543
|
| |
4.5
|
Don E. Williamson(5)
|
| |
377,997
|
| |
1.1
|
Michael E. Boxer(6)
|
| |
111,918
|
| |
*
|
Susanne V. Clark(1)
|
| |
—
|
| |
—
|
Thomas W. Erickson(7)
|
| |
79,205
|
| |
*
|
Robert H. Fish(8)
|
| |
43,205
|
| |
*
|
Jeremy W. Gelber
|
| |
—
|
| |
—
|
Jared S. Hendricks(1)
|
| |
—
|
| |
—
|
Christopher J. Hocevar(9)
|
| |
18,679
|
| |
*
|
John M. Jureller(10)
|
| |
60,885
|
| |
*
|
Directors and executive officers as a group (13 persons)(11)
|
| |
3,860,875
|
| |
11.2
|
*
|
Less than one percent.
|
(1)
|
Comprised of 16,893,850 shares owned by Centerbridge Capital Partners, L.P. (together with its affiliates, “Centerbridge”), 523,697 shares owned by Centerbridge Capital Partners Strategic, L.P. and 198,289 shares owned by Centerbridge Capital Partners SBS, L.P. Centerbridge Associates, L.P. is the general partner of both Centerbridge Capital Partners, L.P. and Centerbridge Capital Partners Strategic, L.P., and Centerbridge Cayman GP Ltd. is the general partner of Centerbridge Associates, L.P. CCP SBS GP, LLC is the general partner of Centerbridge Capital Partners SBS, L.P. Jeffrey H. Aronson and Mark T. Gallogly are directors of Centerbridge Cayman GP Ltd. and managing members of CCP SBS GP, LLC. Messrs. Aronson and Gallogly are also the co-founders and managing principals of Centerbridge Partners, L.P., which is an affiliate of these entities but not a beneficial owner of shares of common stock. The business address of each of the entities and persons identified in this note is 375 Park Avenue, New York, New York 10152.
|
(2)
|
Based on a Form 13F filed with the SEC on November 12, 2020 reporting ownership as of September 30, 2020. The business address of Van Berkom & Associates Inc. is 1130 Sherbrooke Street West, Suite 1005, Montreal, Quebec H3A 2M8, Canada.
|
(3)
|
Includes (a) 304,307 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, including options to purchase 105,000 shares which have a per share exercise price greater than the Per Share Merger Consideration of $11.50, (b) 174,774 shares of unvested restricted stock, (c) 392,572 shares owned by the U.S. Trust Company of Delaware, Trustee or its successor in trust under the Mary F. Carlucci Dynasty Trust dated October 21, 2012, and (d) 261,713 shares owned by the U.S. Trust Company of Delaware, Trustee or its successor in trust under the Joseph A. Carlucci Dynasty Trust dated October 21, 2012.
|
(4)
|
Includes (a) 247,307 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, including options to purchase 48,000 shares which have a per share exercise price greater than the Per Share Merger Consideration of $11.50, (b) 85,894 shares of unvested restricted stock and (c) 98,946 shares of unearned, unvested performance-based restricted stock.
|
(5)
|
Includes (a) 70,715 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, including options to purchase 53,020 shares which have a per share exercise price greater than the Per Share Merger Consideration of $11.50, (b) 115,564 shares of unvested restricted stock and (c) 131,557 shares of unearned, unvested performance-based restricted stock.
|
(6)
|
Includes 11,450 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, which have a per share exercise price greater than the Per Share Merger Consideration of $11.50. Shares are beneficially owned through Black Diamond Partners LLC, JJ Bark LLC and Tribeca Investments LLC, all of which Mr. Boxer shares ownership with family members, except for 53,954 shares beneficially owned through The Enterprise Group Ltd., of which Mr. Boxer is the sole owner, of which 17,151 shares are unvested restricted stock.
|
(7)
|
Includes (a) 11,450 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, which have a per share exercise price greater than the Per Share Merger Consideration of $11.50, (b) 17,151 shares of unvested restricted stock and (c) 18,320 shares beneficially owned through OTS Investments, Ltd., a family partnership in which Mr. Erickson and his wife are co general partners (each having a 0.5% ownership interest in the partnership) and their three children’s trusts are limited partners (each having a 33% ownership interest).
|
(8)
|
Includes 17,151 shares of unvested restricted stock.
|
(9)
|
Includes 18,679 shares of unvested restricted stock.
|
(10)
|
Includes (a) 11,450 shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, which have a per share exercise price greater than the Per Share Merger Consideration of $11.50 and (b) 17,151 shares of unvested restricted stock.
|
(11)
|
This total includes (a) shares of common stock issuable upon exercise of options that are currently exercisable and/or exercisable within 60 days after November 12, 2020, (b) shares of unvested restricted stock and (c) shares of unearned, unvested performance-based restricted stock for all directors, named executive officers, and two executive officers that are non-named executive officers.
|
•
|
ARA’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on March 16, 2020 (the “2019 10-K”);
|
•
|
the information specifically incorporated by reference into the 2019 10-K from our Definitive Proxy Statement on Schedule 14A, filed with the SEC on March 20, 2020;
|
•
|
ARA’s Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020, June 30, 2020 and September 30, 2020, filed with the SEC on May 11, 2020, August 10, 2020 and November 6, 2020, respectively;
|
•
|
ARA’s Current Reports on Form 8-K filed with the SEC on February 7, 2020, March 16, 2020, April 7, 2020, April 30, 2020, May 8, 2020, July 9, 2020, September 18, 2020 and October 2, 2020 (only with respect to Item 1.01); and
|
•
|
ARA’s Amended Current Reports on Form 8-K/A filed with the SEC on May 15, 2020 and October 2, 2020.
|
|
| |
|
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INDEX OF DEFINED TERMS
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INDEX OF DEFINED TERMS
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INDEX OF DEFINED TERMS
|
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INDEX OF DEFINED TERMS
|
| |
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| |
COMPANY:
|
|||
|
| |
|
| |
|
|
| |
AMERICAN RENAL ASSOCIATES HOLDINGS, INC.
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Joseph A. Carlucci
|
|
| |
|
| |
Name: Joseph A. Carlucci
|
|
| |
|
| |
Title: Chief Executive Officer and Chairman of the Board of Directors
|
|
| |
|
| |
|
|
| |
PARENT:
|
|||
|
| |
|
| |
|
|
| |
IRC SUPERMAN MIDCO, LLC,
a Delaware limited liability company
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Scott Hilinski
|
|
| |
|
| |
Name: Scott Hilinski
|
|
| |
|
| |
Title: President
|
|
| |
|
| |
|
|
| |
MERGER SUB:
|
|||
|
| |
|
| |
|
|
| |
SUPERMAN MERGER SUB, INC.,
a Delaware corporation
|
|||
|
| |
|
| |
|
|
| |
By:
|
| |
/s/ Scott Hilinski
|
|
| |
|
| |
Name: Scott Hilinski
|
|
| |
|
| |
Title: President
|
1 Year American Renal Associates Chart |
1 Month American Renal Associates Chart |
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