Upon the completion of the Alcentra Acquisition, each share of Alcentra Capital common stock issued and outstanding immediately prior to the effective time of the Alcentra Acquisition will be converted into the right to receive from us, in accordance with the Merger Agreement, (a) approximately $1.50 per share in cash consideration (less certain special dividends (including tax dividends) expected to be declared by Alcentra Capital after the date of the Merger Agreement), and (b) stock consideration at the fixed exchange ratio of 0.4041 shares, par value $0.001 per share, of our common stock (the “Exchange Ratio”) (and, if applicable, cash in lieu of fractional shares of the Company’s common stock). The Exchange Ratio was fixed on the date of the Merger Agreement, and is not subject to adjustment based on changes in the trading price of Alcentra Capital’s common stock before the closing of the Alcentra Acquisition. Based on the number of shares of Alcentra Capital common stock outstanding on the date of the Merger Agreement, the above would result in approximately 5.2 million of the our shares of common stock being exchanged for approximately 12.9 million outstanding shares of Alcentra Capital common stock, subject to adjustment in certain limited circumstances.
Additionally, in accordance with the Merger Agreement, each share of Alcentra Capital common stock issued and outstanding immediately prior to the effective time of the Alcentra Acquisition will have the right to receive approximately $1.68 per share in cash from the Advisor, acting solely on its own behalf (see Transaction Support Agreement discussed below).
The Merger Agreement contains (a) customary representations and warranties of Alcentra Capital and us, including representations and warranties relating to, among others: corporate organization, capitalization, corporate authority and absence of conflicts, third party and governmental consents and approvals, reports and regulatory matters, financial statements, compliance with law and legal proceedings, absence of certain changes, taxes, intellectual property, insurance and certain contracts, (b) limited representations and warranties from our investment adviser, including representations and warranties relating to, among others: corporate organization, capitalization, corporate authority, absence of conflicts and regulatory matters, and (c) covenants of Alcentra Capital and us to not to take certain actions during this interim period.
Among other things, Alcentra Capital has agreed to, and will cause its subsidiaries, Alcentra Capital’s external investment adviser, and Alcentra Capital’s controlled representatives, and will instruct and use commercially reasonable efforts to cause itsnon-controlled representatives, to, immediately cease and cause to be terminated any existing solicitation of, or discussions or negotiations with, any third party relating to any Competing Proposal (as defined in the Merger Agreement) or any inquiry, discussion, offer or request that could reasonably be expected to lead to a Competing Proposal, and not to initiate, solicit or knowingly encourage the making of any Competing Proposal or engage in negotiations or substantive discussions with, or provide information to, any third party relating to a Competing Proposal.
However, if Alcentra Capital receives a Competing Proposal from a third party, and the board of directors of Alcentra Capital determines in good faith after consultation with its financial advisors and outside legal counsel that (a) the Competing Proposal constitutes or would reasonably be expected to lead to a Superior Proposal (as defined in the Merger Agreement) and (b) failure to consider such proposal would reasonably be expected to be inconsistent with the fiduciary duties of the directors under applicable law, then Alcentra Capital may engage in discussions and negotiations with such third party so long as certain notice and other procedural requirements are satisfied. Alcentra Capital may terminate the Merger Agreement and enter into an agreement with a third party who makes a Superior Proposal, subject to certain procedural requirements and the payment of an approximately $4.3 million termination fee.
The representations and warranties of each party set forth in the Merger Agreement (a) have been qualified by confidential disclosures made to the other party in connection with the Merger Agreement, (b) will not survive completion of the Alcentra Acquisition and cannot be the basis for any claims under the Merger Agreement by the other party after the Alcentra Acquisition is completed, (c) are qualified in certain circumstances by a materiality standard which may differ from what may be viewed as material by investors, (d) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (e) may have been included in the Merger Agreement for the purpose of allocating risk between Alcentra Capital and us rather than establishing matters as facts.
The completion of the Alcentra Acquisition is subject to certain conditions, including, among others, Alcentra Capital stockholder approval, Company stockholder approval, required regulatory approvals (including expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended) (early termination of the waiting period was granted on September 10, 2019), and other customary closing conditions. While there can be no assurances as to the exact timing, or that the Alcentra Acquisition will be completed at all, the Company expects to complete the Alcentra Acquisition as early as first quarter of 2020.
The Merger Agreement also contains certain other termination rights, including in favor of us if the requisite approval of Alcentra Capital’s stockholders is not obtained and in favor of each of Alcentra Capital and us if the Alcentra Acquisition is not completed on or before March 31, 2020. Upon termination of the Merger Agreement under certain specified circumstances, Alcentra Capital may be required to pay us a termination fee of approximately $4.3 million. The Merger Agreement also provides that each party to the Merger Agreement is entitled to specific performance in the event of any breach or to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement.
Additionally, on August 12, 2019, the Company entered into an agreement with the Advisor (the “Transaction Support Agreement”) in connection with the Alcentra Acquisition. Under the terms of the Transaction Support Agreement, our investment adviser will (a) provide $21.6 million of cash consideration, or approximately $1.68 per share of Alcentra Capital common stock, payable to Alcentra Capital stockholders in accordance with the terms and conditions set forth in the Merger Agreement at closing, (b) enter into an amendment to our Investment Advisory Agreement to (i) reduce the management fee from 1.5% to 1.25%, (ii) increase the incentive fee hurdle from 6% to 7% annualized, (iii) waive a portion of the management fee for the six quarters after the transaction so that only 0.75% shall be charged for such time period, and (iv) waive the income based portion of the incentive fee for the six quarters after the transaction, and (c) fund up to $1.4 million of expenses that the Company incurs in connection with completing the Alcentra Acquisition. The financial support contemplated by the Transaction Support Agreement is conditioned upon completion of the Alcentra Acquisition, which is subject to the closing conditions described above.
The Alcentra Acquisition is intended to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. If the Alcentra Acquisition qualifies as a reorganization, then generally except to the extent that cash is received, for U.S. federal income tax purposes, no gain or loss will be recognized by Alcentra Capital’s stockholders upon the exchange of their Alcentra Capital common stock for shares of our common stock. To the extent that cash is received, it may be subject to taxation at generally long-term capital gain rates, provided certain holding period and other requirements are met. All stockholders are urged to consult with their tax advisors regarding the implications of the Alcentra Acquisition.
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