Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On June 14, 2021, Macquarie Infrastructure Corporation (the "Company") and its
subsidiary Macquarie Infrastructure Holdings, LLC ("MIH") entered into an
Agreement and Plan of Merger (the "Merger Agreement") with AMF Hawaii Holdings,
LLC, a Delaware limited liability company ("Parent") affiliated with Argo
Infrastructure Partners, LP ("Argo") and AMF Hawaii Merger Sub, LLC, a Delaware
limited liability company and direct wholly-owned subsidiary of Parent ("Merger
Sub"). The Merger Agreement provides that Merger Sub will be merged with and
into MIH (the "Merger"), with MIH surviving the Merger as a wholly-owned
subsidiary of Parent. Each issued and outstanding common unit of MIH ("Common
Unit") (excluding Common Units held by Parent or Merger Sub or Common Units held
by MIH in treasury and common units held by any subsidiary of MIH or Parent
(other than Merger Sub)) will be converted into the right to receive $3.83 in
cash, without interest; however, if the Merger is consummated after July 1,
2022, then each such Common Unit will be converted into the right to receive
$4.11 in cash, without interest.
As previously announced, the Company has proposed a reorganization in connection
with its pursuit of strategic alternatives. On May 6, 2021, the Company's
shareholders approved a proposal to adopt the Agreement and Plan of Merger,
dated as of March 30, 2021 (the "Reorganization Merger Agreement"), by and among
the Company, MIH and Plum Merger Sub, Inc., a wholly-owned subsidiary of MIH
("Reorganization Merger Sub"), providing for the merger of Reorganization Merger
Sub with and into the Company (the "Reorganization Merger"), resulting in the
Company becoming a wholly-owned subsidiary of MIH. Upon the effectiveness of the
Reorganization Merger, the Company's common stock will be converted into Common
Units and stock certificates representing the Company's common stock immediately
prior to the Reorganization Merger will be deemed to represent Common Units
without an exchange of certificates. Completion of the Reorganization Merger is
subject to the satisfaction or waiver of various conditions. Following the
Reorganization Merger, a direct subsidiary of the Company will distribute all of
the limited liability company interests of MIC Hawaii Holdings, LLC ("MIC
Hawaii") to the Company and the Company will in turn distribute all of the
limited liability company interests of MIC Hawaii to MIH (such distributions,
together with the Reorganization Merger, the "Reorganization"). Upon completion
of the Reorganization, MIH will directly own (i) the Company and (ii) MIC
Hawaii. The Company will complete the Reorganization prior to and as a condition
to the completion of the Merger.
As previously announced, on June 7, 2021, the Company, MIH and, solely for
specified provisions, MIC Hawaii, entered into a stock purchase agreement the
("AA Purchase Agreement") with KKR Apple Bidco, LLC ("AA Purchaser"), a Delaware
limited liability company controlled by funds affiliated with Kohlberg Kravis
Roberts & Co. L.P. The AA Purchase Agreement provides that the AA Purchaser will
acquire all outstanding shares of common stock of the Company which, following
the Reorganization, will hold the Company's Atlantic Aviation business, for
$4.475 billion, including cash and the assumption of debt and other transaction
and reorganization related obligations (the "AA Transaction"). The AA
Transaction will be consummated following the Reorganization and prior to and as
a condition to the completion of the Merger.
The parties' respective obligations to consummate the Merger are subject to
certain conditions, including among others (i) approval of the Company's
stockholders, (ii) expiration or termination of any required waiting periods
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), (iii) approval by the Committee on Foreign Investment in the United
States ("CFIUS"), (iv) approval by the Hawaii Public Utilities Commission (the
"HPUC") under Hawaii Revised Statutes Chapter 269-19, (v) the absence of any
injunction or other order from a governmental authority that prevents the
consummation of the Merger, (vi) consummation of the Reorganization, (vii) the
consummation of the AA Transaction, and (viii) the accuracy of the
representations and warranties of, and compliance with covenants by, the other
party, subject to certain materiality thresholds set forth in the Merger
Agreement. In addition, Parent's and Merger Sub's obligations to consummate the
Merger are subject to additional conditions, including among others (i) the
absence of a Company Material Adverse Effect (as defined in the Merger
Agreement), and (ii) expiration or termination of the HSR Act waiting period,
receipt of CFIUS approval and receipt of HPUC approval, in each case without any
terms or conditions that would constitute a Burdensome Condition (as defined in
the Merger Agreement). Parent and Merger Sub have obtained equity financing
commitments from investment funds affiliated with Argo to fund the Merger, the
Parent Termination Fee (if payable) and associated expenses. The obligations of
Parent and Merger Sub under the Merger Agreement are not conditioned on receipt
of the equity financing.
The Merger Agreement contains customary representations, warranties and
covenants, including covenants related to the operation of MIC Hawaii and its
subsidiaries prior to the consummation of the Merger. The Merger Agreement
contains a customary "no-shop" provision that restricts the Company's ability
to, among other things, solicit alternative transaction proposals from third
parties and provide material non-public information to and engage in discussions
or negotiations with third parties regarding alternative transaction proposals.
The "no-shop" provision also allows the Company, under certain circumstances and
in compliance with certain obligations set forth in the Merger Agreement, to
provide non-public information and engage in discussions and negotiations with
respect to an unsolicited alternative transaction proposal that constitutes or
could reasonably be expected to lead to a superior alternative transaction
proposal.
The Merger Agreement contains certain termination rights, including (i) the
right of either party to terminate the Merger Agreement if the Merger is not
consummated on or before December 14, 2022 (the "End Date") (subject to certain
limitations), which date may be extended by the Company (or, following
completion of the Reorganization, MIH) or Parent to June 14, 2023 if the
required regulatory approvals are not obtained by the original End Date but all
other conditions to closing are satisfied, (ii) the right of either party to
terminate if a governmental authority has issued a final and nonappealable order
prohibiting or enjoining the transaction (subject to certain limitations),
(iii) the right of either party to terminate if the other party breaches its
representations, warranties, covenants or agreements contained in the Merger
Agreement to such an extent that the conditions to consummation of the Merger
would not be satisfied or are not curable or cured (subject to certain
limitations) and (iv) the right of either party to terminate if the Company's
stockholders do not approve the Merger at a stockholders meeting for such
purpose. In addition, the Company may terminate the Merger Agreement (x) prior
to the approval of the Merger by the Company's stockholders, in order for MIH to
enter concurrently into a definitive agreement with respect to a superior
alternative transaction proposal received without breach of the Company's
"no-shop" obligations, subject to the Company having first complied with certain
procedures specified in the Merger Agreement or (y) if Parent and Merger Sub do
not consummate the Merger by the time they are required to do so under the terms
of the Merger Agreement, MIH notifies Parent that the conditions to closing are
satisfied or waived and it is ready, willing and able to close and Parent fails
to close within three business days after such notice is delivered.
Additionally, Parent may terminate the Merger Agreement if the board of
directors of the Company withdraws or adversely modifies its recommendation that
the Company's stockholders vote in favor of approving the Merger Agreement.
MIH will be obligated to pay to Parent a termination fee equal to $13,632,573 if
the Merger Agreement is terminated (i) by Parent because the board of directors
of the Company withdraws or adversely modifies its recommendation that the
Company's stockholders vote in favor of approving the Merger Agreement, (ii) by
MIH in order for the Company to enter into a definitive agreement with respect
to a superior alternative transaction proposal received without breach of the
Company's "no-shop" obligations, or (iii) if (x) prior to the date of the
stockholders' meeting, an alternative transaction proposal has been publicly
made to MIH or its stockholders generally and is not publicly withdrawn, (y) the
Merger Agreement has been terminated by Parent or MIH due to the Company's
failure to obtain stockholder approval of the Merger and (z) MIH enters into a
definitive agreement to consummate such alternative transaction proposal within
six months following such termination, and subsequently consummates the
transactions contemplated thereby.
Parent will be obligated to pay to MIH a termination fee equal to $22,720,955 if
the Merger Agreement is terminated (i) by Parent or MIH because a governmental
entity has enacted any law or final non-appealable order in connection with any
required regulatory approval that restrains, enjoins or otherwise prohibits or
. . .
Item 7.01. Regulation FD.
On June 14, 2021, the Company issued a press release announcing the execution of
the Merger Agreement. A copy of the press release is furnished as Exhibit 99.1
to this Current Report on Form 8-K and is incorporated herein by reference.
This information provided under Section 7.01 is deemed to be furnished and not
filed for purposes of Section 18 of the Exchange Act, is not otherwise subject
to the liabilities of that section and is not incorporated by reference in
another filing under the Exchange Act or the Securities Act of 1933, as amended.
Important Information For Investors And Stockholders
In connection with the proposed transaction, the Company intends to file a proxy
statement with the Securities and Exchange Commission ("SEC"), the definitive
version of which will be mailed to stockholders of the Company. INVESTORS AND
SECURITY HOLDERS OF THE COMPANY ARE STRONGLY ENCOURAGED TO READ THE PROXY
STATEMENT AND OTHER DOCUMENTS THAT ARE FILED OR WILL BE FILED WITH THE SEC
CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT
INFORMATION. Investors and security holders are able to obtain free copies of
the proxy statement and other documents filed with the SEC by the Company
through the website maintained by the SEC at https://www.sec.gov. Copies of the
documents filed with the SEC by the Company will also be available free of
charge on the Company website at www.macquarie.com/mic or by writing to us at
125 West 55th Street, New York, New York 10019, United States of America,
Attention: Investor Relations.
Certain Information Regarding Participants
The Company and its directors and executive officers may be considered
participants in the solicitation of proxies in connection with the merger.
Information about the directors and executive officers of the Company is set
forth in its Annual Report on Form 10-K for the year ended December 31, 2020,
which was filed with the SEC on February 17, 2021, and its definitive proxy
statement for its 2021 annual meeting of stockholders, which was filed with the
SEC on March 29, 2021. Other information regarding the participants of the
Company in the proxy solicitation and a description of their direct and indirect
interests, by security holdings or otherwise, will be contained in the proxy
statement and other relevant materials to be filed with the SEC regarding the
transaction when they become available.
Disclaimer on Forward Looking Statements
This communication contains forward-looking statements. The Company may, in some
cases, use words such as "project," "believe," "anticipate," "plan," "expect,"
"estimate," "intend," "should," "would," "could," "potentially" or "may" or
other words that convey uncertainty of future events or outcomes to identify
these forward-looking statements. Such statements include, among others, those
concerning the Company's expected financial performance and strategic and
operational plans, statements regarding sales of the Company's operating
businesses (including the Company's proposed reorganization), the ability to
complete such sales and the anticipated uses of any proceeds therefrom,
statements regarding the anticipated specific and overall impacts of the
COVID-19 pandemic, as well as all assumptions, expectations, predictions,
intentions or beliefs about future events. Forward-looking statements in this
communication are subject to a number of risks and uncertainties, some of which
are beyond the Company's control, including, among other things: changes in
general economic or business conditions; the ongoing impact of the COVID-19
pandemic; the Company's ability to complete the sale of the Company or its
operating businesses on favorable terms; the Company's ability to service,
comply with the terms of and refinance debt; its ability to retain or replace
qualified employees; in the absence of a sale or sales of its businesses, its
ability to complete growth projects, deploy growth capital and manage growth,
make and finance future acquisitions and implement its strategy; the regulatory
environment; demographic trends; the political environment; the economy,
tourism, construction and transportation costs; air travel; environmental costs
and risks; fuel and gas and other commodity costs; the Company's ability to
recover increases in costs from customers; cybersecurity risks; work
interruptions or other labor stoppages; risks associated with acquisitions or
dispositions; litigation risks; reliance on sole or limited source suppliers,
risks or conflicts of interests involving the Company's relationship with the
Macquarie Group; and changes in U.S. federal tax law. These and other risks and
uncertainties are described under the caption "Risk Factors" in Item 1A of the
Company's Annual Report on Form 10-K for the year ended December 31, 2020 and in
its other reports filed from time to time with the SEC.
The Company's actual results, performance, prospects, or opportunities could
differ materially from those expressed in or implied by the forward-looking
statements. Additional risks of which the Company is not currently aware could
also cause its actual results to differ. In light of these risks, uncertainties,
and assumptions, you should not place undue reliance on any forward-looking
statements. The forward-looking events discussed in this communication may not
occur. These forward-looking statements are made as of the date of this
communication. The Company undertakes no obligation to publicly update or revise
any forward-looking statements, whether as a result of new information, future
events or otherwise, except as required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Item Description
2.1* Merger Agreement dated June 14, 2021 by and among AMF Hawaii
Holdings, LLC, AMF Hawaii Merger Sub, LLC, Macquarie Infrastructure
Corporation and Macquarie Infrastructure Holdings, LLC.
10.1 Amendment to Disposition Agreement, dated June 14, 2021, by and among
Macquarie Infrastructure Corporation, MIC Ohana Corporation, Macquarie
Infrastructure Holdings, LLC and Macquarie Infrastructure Management
(USA) Inc.
99.1 Press Release dated June 14, 2021.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
* The schedules and exhibits to the Merger Agreement have been omitted from this
filing pursuant to Item 601(a)(5) of Regulation S-K. The Company will furnish
copies to the SEC upon request.
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