DEFM14A 1 d59366ddefm14a.htm DEFM14A DEFM14A
Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                             Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

  Preliminary Proxy Statement
  Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
  Definitive Proxy Statement
  Definitive Additional Materials
  Soliciting Material under Section 240.14a-12

Oaktree Capital Group, LLC

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

  No fee required.
  Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
  (1)  

Title of each Class of securities to which transaction applies:

     

  (2)  

Aggregate number of securities to which transaction applies:

     

  (3)  

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):

     

  (4)  

Proposed maximum aggregate value of transaction:

     

  (5)  

Total fee paid:

     

  Fee paid previously with preliminary materials.
  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.
  (1)  

Amount previously paid:

     

  (2)  

Form, Schedule or Registration Statement No.:

     

  (3)  

Filing Party:

     

  (4)  

Date Filed:

     

 

 

 


Table of Contents

 

LOGO

   LOGO

MERGER PROPOSAL—YOUR VOTE IS VERY IMPORTANT

Dear Oaktree Capital Group, LLC Unitholders:

On behalf of the board of directors of Oaktree Capital Group, LLC, referred to as “Oaktree,” we are pleased to enclose the accompanying consent solicitation statement/prospectus relating to the acquisition of all issued and outstanding class A units of Oaktree by Brookfield Asset Management Inc., referred to as “Brookfield.” We are requesting that you take certain actions as an Oaktree unitholder.

The transaction will be effected pursuant to two successive merger transactions in accordance with the terms and subject to the conditions set forth in an Agreement and Plan of Merger, dated as of March 13, 2019, referred to as the “merger agreement.” In the initial merger, an indirect wholly-owned subsidiary of Brookfield will be merged with and into Oaktree and holders of Oaktree’s class A units will be entitled to receive in exchange for each such unit owned by them immediately prior to such initial merger, without interest and subject to any applicable withholding taxes, at the election of the unitholder (but subject to certain prorations as described in the accompanying consent solicitation statement/prospectus), (A) $49.00 in cash, referred to as the “cash consideration,” or (B) 1.0770 Class A Limited Voting Shares of Brookfield, referred to as the “share consideration.” The share consideration, together with the cash consideration, is referred to as the “merger consideration.” In the subsequent merger, Oslo Holdings LLC, referred to as “SellerCo,” a wholly-owned subsidiary of Oaktree Capital Group Holdings, L.P., referred to as “OCGH,” will be merged with and into Oslo Holdings Merger Sub LLC, referred to as “Seller MergerCo,” a wholly-owned subsidiary of Oaktree, and each unit of equity interest in SellerCo, referred to as a “SellerCo unit,” will, at the election of the holder, be converted into the right to receive either cash consideration or share consideration. All elections with respect to Oaktree class A common units, referred to as “Oaktree class A units,” and together with Oaktree class B common units, referred to as “Oaktree units,” and SellerCo units will be prorated to ensure that no more than fifty (50%) of the aggregate merger consideration is paid in the form of cash consideration or share consideration. The initial merger and the subsequent merger are collectively referred to as the “mergers.”

Brookfield’s Class A Limited Voting Shares, referred to as “Brookfield class A shares,” are traded on the New York Stock Exchange, referred to as the “NYSE,” under the symbol “BAM.” On March 12, 2019, the last full trading day prior to the public announcement of the mergers, the last reported sale price of Brookfield class A shares on the NYSE was $45.99. On June 18, 2019, the most recent practicable date prior to the date of this consent solicitation statement/prospectus, the last reported sale price of Brookfield class A shares on the NYSE was $47.98. The implied value of the share consideration to be received in exchange for each Oaktree class A common unit will fluctuate based on the market price of Brookfield class A shares until the completion of the mergers because the share consideration is payable in a fixed number of Brookfield class A shares. We urge you to obtain current stock price quotations for Brookfield class A shares.

The adoption of the merger agreement and approval of the transactions contemplated thereby, including the mergers, by Oaktree unitholders representing a majority of the voting power of all outstanding Oaktree units entitled to vote thereon is required to complete the mergers. Oaktree is sending the accompanying consent solicitation statement/prospectus to its unitholders to request that they consider and consent to the proposal to adopt the merger agreement and approve the transactions contemplated thereby, including the mergers, which proposal we refer to as the “merger proposal,” and the proposal to approve, on a non-binding, advisory basis, certain merger-related executive officer compensation payments that will or may be made to Oaktree’s named executive officers in connection with the mergers, which proposal we refer to as the “compensation proposal,” by executing and returning the written consent furnished with the accompanying consent solicitation statement/prospectus. No vote of Brookfield’s shareholders is required to complete the mergers. The Oaktree board of directors has set June 17, 2019 as the record date for determining the holders of Oaktree units entitled to execute and deliver written consents with respect to this solicitation. If you are a record holder of outstanding Oaktree units on that date, you are urged to complete, date and sign the enclosed written consent and promptly return it to Oaktree. See the section entitled “Oaktree Solicitation of Written Consents” beginning on page 126 of the accompanying consent solicitation statement/prospectus.

As of the close of business on the record date, OCGH owned Oaktree units representing, in the aggregate, approximately 91.7397% of the total voting power in Oaktree. Concurrently with the execution of the merger agreement, OCGH entered into a unitholder support agreement with Brookfield pursuant to which OCGH agreed to deliver to Oaktree a written consent in respect of all or, in the event that the Oaktree board of directors or special committee effects an adverse recommendation change in accordance with the merger agreement, a portion of its Oaktree units in favor of the approval of the merger proposal. The delivery of such written consent by OCGH will, unless the Oaktree board of directors or special committee effects an adverse recommendation change in accordance with the merger agreement, constitute the approval of the merger proposal by the requisite majority of the voting power of all outstanding Oaktree units entitled to vote thereon.

Oaktree’s Board of Directors unanimously recommends that you:

 

  1.

CONSENT to the proposal to adopt the merger agreement and approve the transactions contemplated thereby, including the mergers; and

 

  2.

CONSENT to the proposal to approve, by non-binding advisory vote, certain compensation that will or may become payable by Oaktree to its named executive officers in connection with the mergers.

The accompanying consent solicitation statement/prospectus provides important information regarding the Oaktree consent solicitation and a detailed description of the mergers, the merger agreement and the other transaction documents. We urge you to read the accompanying consent solicitation statement/prospectus (and any documents incorporated by reference into the accompanying consent solicitation statement/prospectus) carefully and in its entirety. Please pay particular attention to “Risk Factors” beginning on page 112 of the accompanying consent solicitation statement/prospectus.

We look forward to the successful completion of the mergers.

Sincerely,

/s/ Jay S. Wintrob

Director and Chief Executive Officer

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the mergers and related agreements and transactions, approved or disapproved the securities to be issued under this consent solicitation statement/prospectus, passed upon the merits or fairness of the mergers or related agreements and transactions or determined if this consent solicitation statement/prospectus is truthful or complete. Any representation to the contrary is a criminal offense.

The accompanying consent solicitation statement/prospectus is dated June 20, 2019 and is first being mailed to Oaktree unitholders on or about June 24, 2019.


Table of Contents

OAKTREE CAPITAL GROUP, LLC

333 SOUTH GRAND AVENUE, 28TH FLOOR

LOS ANGELES, CA 90071

NOTICE OF SOLICITATION OF WRITTEN CONSENT

To the Unitholders of Oaktree Capital Group, LLC:

On March 13, 2019, Oaktree Capital Group, LLC, referred to as “Oaktree,” Oslo Holdings LLC, referred to as “SellerCo,” Oslo Holdings Merger Sub LLC, referred to as “Seller MergerCo,” Brookfield Asset Management Inc., referred to as “Brookfield,” and Berlin Merger Sub, LLC, referred to as “Merger Sub,” entered into an Agreement and Plan of Merger, referred to as the “merger agreement,” and a copy of which is attached as Annex A to the accompanying consent solicitation statement/prospectus, pursuant to which, among other things, Brookfield has agreed to acquire all of the issued and outstanding class A units of Oaktree.

The accompanying consent solicitation statement/prospectus is being delivered to you on behalf of the Oaktree board of directors, referred to as the “Oaktree board,” to request that holders of Oaktree class A and class B units as of the close of business on June 17, 2019, referred to as the “record date,” execute and return written consents to approve:

 

  1.

the adoption of the merger agreement and the approval of the transactions contemplated thereby, including the mergers, which proposal we refer to as the “merger proposal”; and

 

  2.

on a non-binding, advisory basis, certain merger-related executive officer compensation payments that will or may be made to Oaktree’s named executive officers in connection with the mergers, which proposal we refer to as the “compensation proposal.”

Oaktree has set July 23, 2019 as the targeted final date for receipt of written consents, as it may be extended by Oaktree, referred to as the “consent deadline.”

The accompanying consent solicitation statement/prospectus describes the mergers and the actions to be taken in connection with the mergers and provides additional information about the parties involved. Please give this information your careful attention.

The Oaktree board unanimously recommends that Oaktree unitholders “CONSENT” to the merger proposal and “CONSENT” to the compensation proposal.

Your consent is very important. Please complete, date and sign the written consent furnished with the accompanying consent solicitation statement/prospectus and return it promptly to Oaktree by one of the means described in the section entitled “Oaktree Solicitation of Written Consents” beginning on page 126 in the accompanying consent solicitation statement/prospectus.

We urge you to read carefully and in their entirety the accompanying consent solicitation statement/prospectus, its annexes, and all documents incorporated by reference into the accompanying consent solicitation statement/prospectus. In particular, see the section entitled “Risk Factors” beginning on page 112 of the accompanying consent solicitation statement/prospectus.

If you have any questions concerning the merger agreement, the mergers or the other transactions contemplated thereby, the merger proposal, the compensation proposal, the consent solicitation or the accompanying consent solicitation statement/prospectus, or if you have any questions about how to deliver your written consent, please contact Oaktree’s agent in connection with the consent solicitation, Morrow Sodali LLC, toll-free at (800) 662-5200.

By Order of the Oaktree Board of Directors,

/s/ Todd E. Molz

General Counsel, Chief Administrative Officer and Secretary

Los Angeles, California

June 20, 2019

 

i


Table of Contents

ADDITIONAL INFORMATION

The accompanying consent solicitation statement/prospectus incorporates important business and financial information about Brookfield and Oaktree from documents that are not included in or delivered with the accompanying consent solicitation statement/prospectus. You can obtain any of the documents filed with or furnished to the SEC by Brookfield or Oaktree at no cost from the SEC’s website at http://www.sec.gov. You will also be able to obtain these documents, free of charge, from Oaktree by accessing Oaktree’s website at http://ir.oaktreecapital.com or from Brookfield by accessing Brookfield’s website at http://bam.Brookfield.com/reports-and-filings. You can also obtain these documents, free of charge, by requesting them in writing, via email or by telephone from Brookfield or Oaktree at the following addresses and telephone numbers:

 

Brookfield Asset Management Inc.

181 Bay Street, Suite 300

Toronto, Ontario M5J 2T3

Attention: Investor Relations

Email: enquiries@brookfield.com

Telephone: (416) 359-8647

  

Oaktree Capital Group, LLC

333 South Grand Ave., 28th Floor

Los Angeles, CA 90071

Attention: Investor Relations

Email: investorrelations@oaktreecapital.com

Telephone: (213) 830-6483

In addition, if you have questions about the mergers or the accompanying consent solicitation statement/prospectus or would like additional copies of the accompanying consent solicitation statement/prospectus, please contact Morrow Sodali LLC, Oaktree’s agent in connection with the consent solicitation, toll-free at (800) 662-5200. You will not be charged for any of these documents that you request.

If you are an Oaktree unitholder and would like to request any documents, please do so by July 16, 2019 to receive them before the consent deadline.

For a more detailed description of the information incorporated by reference into the accompanying consent solicitation statement/prospectus and how you may obtain it, see the section entitled “Where You Can Find More Information,” beginning on page 219 of the accompanying consent solicitation statement/prospectus. The accompanying consent solicitation statement/prospectus provides a detailed description of the mergers and the merger agreement. We urge you to read the accompanying consent solicitation statement/prospectus, including any documents incorporated by reference into the accompanying consent solicitation statement/prospectus, and its annexes carefully and in their entirety.

 

ii


Table of Contents

ABOUT THIS CONSENT SOLICITATION STATEMENT/PROSPECTUS

This consent solicitation statement/prospectus, which forms part of a registration statement on Form F-4 filed by Brookfield with the U.S. Securities and Exchange Commission, constitutes a prospectus of Brookfield under Section 5 of the Securities Act of 1933 with respect to the Brookfield class A shares to be issued in connection with the transactions contemplated by the merger agreement. This consent solicitation statement/prospectus also constitutes a consent solicitation statement for Oaktree under Section 14(a) of the Securities Exchange Act of 1934.

You should rely only on the information contained in or incorporated by reference into this consent solicitation statement/prospectus. No one has been authorized to provide you with information that is different from that contained in, or incorporated by reference into, this consent solicitation statement/prospectus. This consent solicitation statement/prospectus is dated June 20, 2019. You should not assume that the information contained in this consent solicitation statement/prospectus is accurate as of any date other than that date. You should not assume that the information incorporated by reference into this consent solicitation statement/prospectus is accurate as of any date other than the date of such information. Neither our mailing of this consent solicitation statement/prospectus to Oaktree unitholders nor the issuance by Brookfield of Brookfield class A shares in connection with the mergers will create any implication to the contrary.

This consent solicitation statement/prospectus does not constitute an offer to sell, or the solicitation of an offer to buy, any securities, or the solicitation of a consent or a proxy, in any jurisdiction where or from any person to whom it is unlawful to make any such offer or solicitation. Information contained in this consent solicitation statement/prospectus regarding Brookfield and its affiliates has been provided by Brookfield and information contained in this consent solicitation statement/prospectus regarding Oaktree and its affiliates has been provided by Oaktree.

Unless otherwise indicated or as the context otherwise requires, all references in this consent solicitation statement/prospectus to:

 

   

$ are to U.S. dollars, unless otherwise noted;

 

   

“A&R operating agreement” refer to the Fifth Amended and Restated Operating Agreement of Oaktree;

 

   

“additional payments” refer to the cash payments by Brookfield (on behalf of itself and on behalf of the intermediate holdcos), on each of the first (1st), second (2nd) and third (3rd) anniversaries of the closing date, to the limited partners of OCGH set forth in the books and records thereof (for the avoidance of doubt, regardless of whether they are a limited partner as of any applicable payment date) of $66,000,000 in the aggregate, which will be allocated among OCGH’s limited partners as determined by OCGH;

 

   

“adverse recommendation change” refer to the withholding, withdrawal, amendment, qualification or modification in a manner adverse to Brookfield, or public proposal to do any of the foregoing, of the Oaktree board recommendation;

 

   

“advisory services” refer to investment management, investment advisory, investment sub-advisory or other similar services relating to securities or other financial instruments, commodities, real estate or any other type of asset;

 

   

“adjusted assets under management” refer to assets under management, as adjusted for each client, (a) to reflect net cash flows with respect to the assets under management with respect to such client (including any additions, withdrawals, written notices of withdrawal, dividends, distributions and reinvestments of dividends or distributions and interest) that occurred after February 28, 2019 (or, in the case of a person that becomes a client after the date of the merger agreement, such later date as such person became a client) through the date of determination, and (b) to exclude any increase or

 

iii


Table of Contents
 

decrease in the applicable assets under management with respect to such client (including for purposes of calculating any withdrawals and written notices of withdrawals) due to market appreciation or depreciation and any currency fluctuations, in each case, that occurred after February 28, 2019 (or, in the case of a person that becomes a client after the date of the merger agreement, such later date as such person became a client) through the date of determination;

 

   

“assets under management” or “AUM,” solely for purposes of the merger agreement, when used with respect to (i) Oaktree refer generally to the assets under management with respect to Oaktree’s clients, as determined by Oaktree consistent with past practice excluding any portion of the assets under management attributable to clients who have provided requests to withdraw or redeem their invested capital, account balance or capital commitments that have been delivered to an Oaktree entity or fund and (ii) Brookfield refer generally to the total fair value of assets that Brookfield manages, on a gross asset value basis, including assets for which Brookfield earns management fees and those for which it does not. When used with respect to Brookfield, AUM is calculated as follows: (a) for investments that Brookfield consolidates for accounting purposes or actively manages, including investments of which Brookfield or a controlled investment vehicle is the largest shareholder or the primary operator or manager, at 100% of the investment’s total assets on a fair value basis; and (b) for all other investments, at Brookfield’s or its controlled investment vehicle’s, as applicable, proportionate share of the investment’s total assets on a fair value basis. Brookfield’s methodology for determining AUM may differ from the methodology employed by other alternative asset managers and Brookfield’s AUM presented herein may differ from its AUM reflected in other public filings and/or its Form ADV and Form PF;

 

   

“Atlas” refer to Atlas Holdings, LLC, a Delaware limited liability company and indirect wholly-owned subsidiary of Brookfield;

 

   

“Atlas OCM” refer to Atlas OCM Holdings, LLC, a Delaware limited liability company and indirect wholly-owned subsidiary of Brookfield;

 

   

“Berlin Merger Sub” refer to Berlin Merger Sub, LLC;

 

   

“Brookfield” refer to Brookfield Asset Management Inc.;

 

   

“Brookfield articles” refer to Brookfield’s articles of amalgamation;

 

   

“Brookfield board” refer to the board of directors of Brookfield;

 

   

“Brookfield board appointee” refer to a director appointed to the Oaktree board by Brookfield;

 

   

“Brookfield class A shares” refer to Brookfield Class A Limited Voting Shares, no par value;

 

   

“Brookfield class A share issuance” refer to the issuance in the initial merger of Brookfield class A shares to Oaktree unitholders and the issuance in the subsequent merger of Brookfield class A shares to SellerCo unitholders, in each case in accordance with the terms and subject to the conditions set forth in the merger agreement;

 

   

“Brookfield class B shares” refer to the Class B Limited Voting Shares of Brookfield;

 

   

“Brookfield filing parties” refer to PF Fund Limited Partnership, Brookfield Holdings Canada Inc., Brookfield U.S. Holdings, Inc., Brookfield U.S. Inc., Atlas and Atlas OCM;

 

   

“Brookfield merger parties” refer to Brookfield and Berlin Merger Sub;

 

   

“business day” refer to a day, other than Saturday, Sunday or any other day on which commercial banks in New York, New York or Toronto, Ontario are authorized or required by applicable law to close;

 

   

C$ are to Canadian dollars;

 

   

“cash consideration” refer to the merger consideration payable in the form of $49.00 in cash per Oaktree class A unit and SellerCo unit;

 

iv


Table of Contents
   

“cash election maximum” refer to the aggregate number of Oaktree class A units and SellerCo units issued and outstanding immediately prior to the effective time, multiplied by 50%;

 

   

“CFIUS” refer to the Committee on Foreign Investment in the United States;

 

   

“client” refer to any person to which any Oaktree entity provides advisory services pursuant to an investment advisory arrangement;

 

   

“CLO” refer to a collateralized loan obligation;

 

   

“closing” refer to the closing of the mergers;

 

   

“closing date” refer to the date on which the closing occurs;

 

   

“closing revenue run-rate” refer to aggregate revenue run-rate determined as of a date as close as possible, but in no event more than ten nor less than five business days prior to, the closing date, it being understood and agreed that the determination of closing revenue run-rate (a) shall include as clients all persons that become clients after the date of the merger agreement and their respective adjusted assets under management, (b) shall exclude any non-consenting clients and their respective adjusted assets under management and (c) other than as provided in the definition of “adjusted assets under management” and the foregoing clauses (a) and (b), shall be calculated using the same methodology as the revenue run-rate as of February 28, 2019 referred to in the merger agreement;

 

   

“Code” refer to the Internal Revenue Code of 1986, as amended;

 

   

“confidentiality agreement” refer to the mutual non-disclosure agreement, dated as of November 9, 2018, by and between Oaktree and Brookfield;

 

   

“consent deadline” refer to July 23, 2019;

 

   

“consent solicitor” refer to Morrow Sodali LLC;

 

   

“consenting client” refer to each client whose consent is obtained or deemed to be obtained, as applicable, in accordance with Section 8.06(a) of the merger agreement (including by negative consent);

 

   

“DLLCA” refer to the Delaware Limited Liability Company Act;

 

   

“DoubleLine entities” refer to DoubleLine Capital LP, DoubleLine GP Holdings LP, and each of their funds and affiliates;

 

   

“effective time” refer to the effective time of the initial merger pursuant to the merger agreement;

 

   

“election deadline” refer to 5:00 p.m., New York City time, on the date that the parties to the merger agreement agree is as near as practicable to three business days preceding the closing date, by which each Oaktree unitholder must make an election for merger consideration in order for it be considered valid;

 

   

“election period” refer to the period during which holders of Oaktree class A units and SellerCo units will be able to exercise their right to make an election for cash consideration or share consideration, subject to proration;

 

   

“end date” refer to March 13, 2020 (or if extended in accordance with the merger agreement, June 13, 2020);

 

   

“Euronext” refer to Euronext N.V.;

 

   

“exchanges” refer to exchanges by OCGH limited partners of certain vested OCGH units for one of the following forms of consideration, at the election of Brookfield: (a) cash, (b) Brookfield class A shares or (c) notes issued by Atlas or equity interests in a subsidiary of OCGH that will entitle such limited partners to the proceeds from a note;

 

   

“Exchange Act” refer to the Securities Exchange Act of 1934, as amended;

 

   

“exchange agent” refer to American Stock Transfer & Trust Company, LLC;

 

v


Table of Contents
   

“exchange agreement” refer to the Third Amended and Restated Exchange Agreement by and among Brookfield, Oaktree, OCM Holdings I, LLC, Oaktree Holdings, Inc., Oaktree AIF Holdings, Inc., Oaktree Holdings, Ltd., OCGH and other parties thereto from time to time;

 

   

“existing exchange agreement” refer to the Second Amended and Restated Exchange Agreement dated March 29, 2012 by and among Oaktree, OCGH, OCM Holdings I, LLC, Oaktree Holdings, Inc., Oaktree AIF Holdings, Inc., Oaktree Holdings, Ltd. and certain other affiliates of OCGH;

 

   

“exchange ratio” refer to 1.0770;

 

   

“excluded holders” refer to holders of the Oaktree excluded units, Brookfield, OCGH and those unitholders who are also equity holders of OCGH and holders of Oaktree restricted units;

 

   

“Form ADV” refer to the uniform form used by investment advisers to register with both SEC and state securities authorities;

 

   

“Form PF” refer to the uniform form used by private fund advisors to report regulatory assets under management to the Financial Stability Oversight Council;

 

   

“former Oaktree units” refer to any OCGH unit that (a) was converted or exchanged in the mergers into an OCGH unit from an Oaktree class A unit, (b) immediately prior to such conversion or exchange, was not a vested Oaktree class A unit and (c) immediately prior to the consummation of the mergers, was unvested;

 

   

“fractional share” refer to a fractional share of a Brookfield class A share;

 

   

“FTC” refer to the U.S. Federal Trade Commission;

 

   

“fund” refer to any Oaktree fund, managed account or sub-advisory relationship, excluding the DoubleLine entities;

 

   

“fund document” refer to each partnership agreement, operating agreement, shareholders’ agreement, investment advisory arrangement, offering document or memorandum, placement agreement and any material amendments, modifications, supplements or waivers with respect to any of the foregoing (including any side letters or similar arrangements) (i) related to each Oaktree fund, and (ii) with respect to each non-controlled fund, to which Oaktree or its subsidiaries is a party;

 

   

“GAAP” refer to U.S. Generally Accepted Accounting Principles;

 

   

“HSR Act” refer to the U.S. Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended;

 

   

“IFRS” refer to international financial reporting standards as promulgated by the International Accounting Standards Board;

 

   

“incentive income” refer to the aggregate of any “carried interest,” “incentive allocation,” “performance allocation,” or similar items of compensation or gain earned (directly or indirectly) by Oaktree or any of its subsidiaries based on the cumulative performance of an Oaktree fund or any other investment vehicle over a specified period of time. Incentive income is generally recognized at the end of the period when the amounts are contractually payable or crystallized and are no longer subject to clawback;

 

   

“initial certificate of merger” refer to the certificate of merger to be filed at closing with the Delaware Secretary of State in connection with the initial merger;

 

   

“initial merger” refer to the merger of Berlin Merger Sub with and into Oaktree, with Oaktree surviving such merger;

 

   

“initial period” refer to the period of time beginning on the closing date and ending no earlier than the third business day following, at Brookfield’s election, the earliest to occur of (a) Howard Marks and Bruce Karsh collectively ceasing to beneficially own at least 42% of the equity in the Oaktree operating group that they beneficially owned immediately after the closing (which amount shall be

 

vi


Table of Contents
 

deemed to include any charitable donations they are permitted to make prior to the closing), (b) Howard Marks and Bruce Karsh both ceasing to be actively and substantially involved in the oversight of the day-to-day affairs of the business of the Oaktree operating group, in each case for a period of at least 90 consecutive days or an aggregate of 180 calendar days in any 360-day period, except as a result of incapacitation, (c) the incapacitation of both Howard Marks and Bruce Karsh, (d) either Howard Marks or Bruce Karsh becoming incapacitated, and the other ceasing to be actively and substantially involved in the oversight of the day-to-day affairs of the business of the Oaktree operating group for a period of at least 90 consecutive days or an aggregate of 180 calendar days in any 360-day period, except as a result of incapacitation and (e) the seventh anniversary of the closing date;

 

   

“intermediate holdcos” refer to Oaktree Holdings, LLC, Oaktree Holdings, Inc., Oaktree Holdings, Ltd. and Oaktree AIF Holdings, Inc.;

 

   

“intervening event” refer to any fact, event, development or set of circumstances affecting Oaktree and its subsidiaries taken as a whole (that does not relate to any acquisition proposal) that occurred or arose after the date of the merger agreement and was not known to or reasonably foreseeable by the Oaktree board or the special committee as of the date of the merger agreement (or if known or reasonably foreseeable, the consequences or the probability or magnitude of such consequences were not known or reasonably foreseeable) (A) which fact, event, development or set of circumstances becomes known to the Oaktree board or the special committee prior to the receipt of the Oaktree member approval and (B) does not relate to any changes in the market;

 

   

“investment advisory arrangement” refer to a contract under which Oaktree or any subsidiary provides advisory services for any fund or any other person (other than Oaktree or any of its subsidiaries);

 

   

“IRS” refer to the U.S. Internal Revenue Service;

 

   

“ITAR” refer to the International Traffic in Arms Regulations, as set forth in 22 C.F.R. Parts 120 to 130;

 

   

“ITAR pre-notification requirement” refer to the submission by Oaktree of any required notice (including all required accompanying materials) to the Directorate of Defense Trade Controls (“DDTC”) via registered, overnight mail and email at least 60 days in advance of the effective time, as provided for in 22 C.F.R. §122.4(b) and DDTC’s 60-Day Notice Guidance;

 

   

“joint directors” refer to the directors of the Oaktree board to be nominated by Oaktree and jointly appointed by Oaktree and Brookfield during the initial period;

 

   

“managed account” refer to any investment account that is owned by an Oaktree client (or any nominee of such Oaktree client) and in respect of which an Oaktree entity provides advisory services for compensation on a discretionary or non-discretionary basis; provided, however, that a managed account does not include an Oaktree fund or a sub-advisory relationship;

 

   

“merger agreement” refer to the Agreement and Plan of Merger, dated as of March 13, 2019, as it may be amended from time to time, among Oaktree, Brookfield, SellerCo, Seller MergerCo and Berlin Merger Sub;

 

   

“merger consideration” refer to the consideration payable either (i) in the initial merger by Brookfield to Oaktree unitholders in respect of each Oaktree class A unit (other than Oaktree excluded units) outstanding immediately prior to the effective time, or (ii) in the subsequent merger by Brookfield on behalf of Seller MergerCo to the SellerCo unitholders in respect of each SellerCo unit outstanding immediately prior to the subsequent effective time, in each case consisting of either:

 

   

$49.00 in cash, without interest, or;

 

   

1.0770 of fully paid and nonassessable Brookfield class A shares, in each case subject to proration;

 

vii


Table of Contents
   

“mergers” refer, collectively, to the initial merger and the subsequent merger;

 

   

“minimum threshold” refer to the beneficial ownership of permitted Oaktree holders of at least 10% of the Oaktree operating group units owned by them immediately after the closing;

 

   

“non-consenting clients” refer to any client that is not a consenting client;

 

   

“NYSE” refer to the New York Stock Exchange;

 

   

“Oaktree” refer to Oaktree Capital Group, LLC;

 

   

“Oaktree board” refer to the board of directors of Oaktree;

 

   

“Oaktree board recommendation” refer to the recommendation by the Oaktree board that the holders of Oaktree units adopt the merger agreement and approve the transactions contemplated thereby;

 

   

“Oaktree class A unit” refer to an equity interest in Oaktree that is a common unit designated as a “Class A Unit” pursuant to the terms of the Oaktree operating agreement, including the Oaktree restricted units;

 

   

“Oaktree class B unit” refer to an equity interest in Oaktree that is a common unit designated as a “Class B Unit” pursuant to the terms of the Oaktree operating agreement;

 

   

“Oaktree client” refer to any person to which any Oaktree entity provides advisory services pursuant to an investment advisory arrangement;

 

   

“Oaktree directors” refer to directors appointed by Oaktree to the Oaktree board;

 

   

“Oaktree entity” refer to Oaktree and its subsidiaries (subject to the definition of “subsidiary” set forth in the merger agreement);

 

   

“Oaktree excluded units” refer to Oaktree class A units that are owned immediately prior to the effective time, directly or indirectly, by Oaktree, including Oaktree class A units held in treasury or otherwise, or by Berlin Merger Sub, and any Oaktree restricted units;

 

   

“Oaktree fund” refer to any investment fund or other collective investment vehicle that is a distinct entity (including any general or limited partnership, corporation, trust or limited liability company, and including each separate portfolio or series of any of the foregoing and whether or not dedicated to a single investor) (a) sponsored or controlled by an Oaktree entity or (b) for which an Oaktree entity acts as the principal investment adviser, investment manager, collateral manager, general partner, managing member, manager or in a similar capacity; provided however that Oaktree funds shall not include any managed accounts, sub-advisory relationships, portfolio companies or DoubleLine entities;

 

   

“Oaktree GP” refer to Oaktree Capital Group Holdings GP, LLC;

 

   

“Oaktree member approval” refer to the adoption of the merger agreement by a majority of the voting interests represented by the outstanding Oaktree class A units and Oaktree class B units, voting together as a single class, at an Oaktree unitholder meeting or by written consent of holders of the Oaktree units, voting together as a single class, in lieu of a meeting, which is the only vote of the holders of any Oaktree units necessary in connection with the consummation of the mergers and the other transactions contemplated by the merger agreement;

 

   

“Oaktree non-controlled fund” refer to managed account and sub-advisory relationships;

 

   

“Oaktree operating agreement” refer to the Fourth Amended and Restated Operating Agreement of Oaktree, dated as of May 17, 2018;

 

   

“Oaktree operating group” refer to the upper-most entities in which OCGH or Oaktree have an economic interest and over which Oaktree has control and through which the Oaktree business is conducted or the Oaktree strategy is pursued, including Oaktree Capital I LP, Oaktree Capital II LP, Oaktree Investment Holdings LP, Oaktree Capital Management LP, Oaktree Capital Management

 

viii


Table of Contents
 

(Cayman) LP and Oaktree AIF Investments LP, but excluding Oaktree Holdings, Inc., Oaktree Holdings, LLC, OCM Holdings, LLC, OCM Holdings I, LLC, Oaktree AIF Holdings, Inc. and Oaktree Holdings, Ltd.;

 

   

“Oaktree operating group units” refer to units in the Oaktree operating group;

 

   

“Oaktree preferred units” refer to the Oaktree Series A and Series B preferred units, designated as “Series A Preferred Units” and “Series B Preferred Units,” respectively, pursuant to the terms of the Oaktree operating agreement;

 

   

“Oaktree restricted unit” refer to an Oaktree class A unit that is outstanding and unvested as of immediately prior to the effective time;

 

   

“Oaktree unaffiliated unitholder” refer to an Oaktree unitholder that is unaffiliated with Oaktree or its affiliates;

 

   

“Oaktree unitholder meeting” refer to a meeting of the holders of Oaktree units;

 

   

“Oaktree unitholder meeting election” refer to the request by either Brookfield or Oaktree by written notice to the other within the three business days following an adverse recommendation change to hold an Oaktree unitholder meeting;

 

   

“Oaktree units” refer to the Oaktree class A units and the Oaktree class B units;

 

   

“Oaktree written consent solicitation” refer to a consent solicitation statement in connection with the solicitation by Oaktree of written consents from Oaktree unitholders to approve the merger proposal and the compensation proposal;

 

   

“OBCA” refer to the Business Corporations Act (Ontario);

 

   

“OCGH” refer to Oaktree Capital Group Holdings, L.P., a Delaware limited partnership;

 

   

“OCGH exchange” refer to the mandatory and optional exchanges described in the support agreement and the other transactions contemplated by Article V of the support agreement;

 

   

“OCGH filing parties” refer to OCGH, Oaktree GP, SellerCo, Howard S. Marks and Bruce A. Karsh;

 

   

“OCGH unit” refer to limited partnership units in OCGH;

 

   

“OCGH LPA” refer to the Fifth Amended and Restated Limited Partnership Agreement of OCGH, dated as of November 10, 2015;

 

   

“OCMI” refer to OCM Investments, LLC;

 

   

“open period” refer to (a) in the case of former Oaktree units, the first 60 days of a calendar year and (b) in all other cases, the first 60 days of a calendar year beginning January 1, 2022;

 

   

“Perella Weinberg” refer to Perella Weinberg Partners LP, financial advisor to Oaktree;

 

   

“permitted Oaktree holders” refer to (i) holders of OCGH units on the closing date, (ii) such holders’ affiliates and (iii) charitable organizations to whom such holders made charitable gifts; provided that any transfer described in clauses (ii) or (iii) occurring after the closing date shall be permitted only to the extent that the applicable original holder retains control over the disposition of such OCGH units;

 

   

“post-closing restructuring steps” refer to the post-closing actions to be taken pursuant to the merger agreement and other transaction documents, as applicable;

 

   

“proposed amendments” refer to specific proposals to amend the Tax Act or regulations thereunder that have been publicly announced by the Minister of Finance (Canada) prior to the date hereof;

 

   

“registered fund” refer to any fund registered, or that has elected to be treated as a business development company, under the Investment Company Act;

 

ix


Table of Contents
   

“registration statement” refer to the registration statement on Form F-4 or any amendment or supplement thereto pursuant to which Brookfield class A shares issuable as merger consideration will be registered with the SEC;

 

   

“registration statement effective time” refer to the time at which the registration statement on Form F-4 of which this consent solicitation statement/prospectus forms a part is deemed effective;

 

   

“reimbursement agreement” refer to the letter agreement dated March 13, 2019 among Oaktree, OCGH, Howard Marks and Bruce Karsh;

 

   

“revenue run rate” refer to the aggregate annualized investment advisory, investment management, subadvisory or other similar recurring fees for all clients (including the funds) (but excluding incentive and performance fees and net investment income) payable to an Oaktree entity, determined by multiplying (a) the assets under management, or the adjusted assets under management, as applicable, in either case for each such client as of the applicable date by the applicable annual fee rate for such client under the applicable investment advisory arrangement as of the applicable date (not including any carried interest or profits interests, and net of any sub-advisory fees paid by an Oaktree entity to a person that is not an Oaktree entity);

 

   

“Sandler O’Neill” refer to Sandler O’Neill & Partners, L.P., financial advisor to the special committee;

 

   

“SEC” refer to the U.S. Securities and Exchange Commission;

 

   

“Securities Act” refer to the Securities Act of 1933, as amended;

 

   

“SEDAR” refer to the System for Electronic Document Analysis and Retrieval, the electronic filing system for the disclosure documents of issuers in Canada;

 

   

“SellerCo” refer to Oslo Holdings LLC, a Delaware limited liability company;

 

   

“Seller MergerCo” refer to Oslo Holdings Merger Sub LLC, a Delaware limited liability company;

 

   

“SellerCo unit” refer to a limited liability company interest in SellerCo;

 

   

“share consideration” refer to the merger consideration payable in the form of fully paid and nonassessable Brookfield class A shares at an exchange rate of 1.0770 per Oaktree class A unit and SellerCo unit;

 

   

“Simpson Thacher” refer to Simpson Thacher & Bartlett LLP, counsel to Oaktree;

 

   

“special committee” refer to the special committee of the Oaktree board;

 

   

“subadvisory relationship” refer to any contract pursuant to which an Oaktree entity provides sub-advisory services to any investment fund or other collective investment vehicle (including any general or limited partnership, trust, or limited liability company and whether or not dedicated to a single investor (but excluding, for the avoidance of doubt, any Oaktree fund)) or any account whose sponsor, principal advisor, general partner, managing member or manager is any person who is not an Oaktree entity;

 

   

“subsequent certificate of merger” refer to the certificate of merger to be filed at closing with the Delaware Secretary of State in connection with the subsequent merger;

 

   

“subsequent effective time” refer to the effective time of the subsequent merger pursuant to the merger agreement;

 

   

“subsequent merger” refer to the merger of SellerCo with and into Seller MergerCo, with Seller MergerCo surviving such merger;

 

   

“support agreement” refer to the Unitholder Support Agreement, dated as of March 13, 2019, as it may be amended from time to time, among Brookfield, Berlin Merger Sub, Oaktree, OCGH and Oaktree GP;

 

x


Table of Contents
   

“support agreement failure” refer to the failure by Oaktree GP and OCGH to execute and deliver to Oaktree and Brookfield the support agreement within five hours after the execution and delivery of the merger agreement;

 

   

“surviving company” refer to Oaktree following the mergers;

 

   

“Tax Act” refer to the Income Tax Act (Canada);

 

   

“TCJA” refer to the Tax Cuts and Jobs Act;

 

   

“TRA” refer to that certain Second Amended and Restated Tax Receivable Agreement dated as of March 29, 2012 by and among Oaktree Holdings, Inc., Oaktree AIF Holdings, Inc., Oaktree Capital II, L.P., Oaktree Capital Management, L.P., Oaktree Investment Holdings, L.P., Oaktree AIF Investments, L.P., and each of the limited partners of OCGH;

 

   

“TRA amendment” refer to an amendment to the TRA;

 

   

“transactions” refer to the transactions contemplated by the merger agreement and the other transaction documents;

 

   

“transaction documents” refer to the merger agreement, the support agreement, the A&R operating agreement, the exchange agreement and the TRA amendment, including all exhibits or annexes attached thereto;

 

   

“Treaty” refer to the Canada-United States Tax Convention (1980), as amended;

 

   

“TSX” refer to the Toronto stock exchange;

 

   

“Weil” refer to Weil, Gotshal & Manges LLP, counsel to Brookfield;

 

   

“written consent” refer to the written consent to be executed by OCGH; and

 

   

“written consent failure” refer to the failure by OCGH to deliver the written consent within five business days of the later of the registration statement effective time and the receipt by OCGH of the consent solicitation statement.

 

xi


Table of Contents

TABLE OF CONTENTS

 

     Page  

SUMMARY TERM SHEET

     1  

QUESTIONS AND ANSWERS

     18  

SPECIAL FACTORS

     28  

Effects of the Mergers

     28  

Background of the Mergers

     31  

Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers

     52  

Recommendation and Reasons of the Special Committee

     52  

Recommendation and Reasons of the Oaktree Board; Position of Oaktree as to the Fairness of the Mergers

     56  

Opinion of Oaktree’s Financial Advisor

     59  

Opinion of Special Committee’s Financial Advisor

     69  

Certain Unaudited Prospective Financial Information

     81  

Purpose and Reasons of Oaktree for the Mergers

     87  

Purpose and Reasons of the OCGH Filing Parties for the Mergers

     87  

Purpose and Reasons of the Brookfield Filing Parties for the Mergers

     89  

Position of the OCGH Filing Parties as to the Fairness of the Mergers

     91  

Position of the Brookfield Filing Parties as to the Fairness of the Mergers

     93  

Plans for Oaktree after the Mergers

     96  

Interests of Oaktree Directors and Executive Officers in the Mergers

     97  

No Appraisal Rights

     101  

Financing for the Transactions

     101  

Regulatory Approvals Required to Complete the Mergers

     101  

Accounting Treatment of the Mergers

     104  

Listing of Brookfield Class  A Shares and Delisting and Deregistration of Oaktree Class A Units

     104  

Fees and Expenses

     105  

SELECTED HISTORICAL CONSOLIDATED FINANCIAL DATA OF BROOKFIELD

     106  

SUMMARY HISTORICAL CONSOLIDATED FINANCIAL DATA OF OAKTREE

     107  

COMPARATIVE PER UNIT AND PER SHARE DATA

     110  

RISK FACTORS

     112  

Risk Factors Relating to the Mergers

     112  

Risk Factors Relating to the Combined Company Post-Closing

     121  

Other Risk Factors Relating to Brookfield and Oaktree

     121  

CAUTIONARY INFORMATION REGARDING FORWARD-LOOKING STATEMENTS

     122  

THE PARTIES TO THE MERGERS

     124  

Brookfield Asset Management Inc.

     124  

Berlin Merger Sub, LLC

     124  

Oaktree Capital Group, LLC

     124  

Oslo Holdings LLC

     124  

Oslo Holdings Merger Sub LLC

     125  

OAKTREE SOLICITATION OF WRITTEN CONSENTS

     126  

Executing Consents

     126  

Recommendation of the Oaktree Board

     126  

Record Date; Unitholders Entitled to Consent

     126  

Consent Required

     127  

Unit Ownership of and Voting by Oaktree Directors and Executive Officers

     127  

Submission of Consents

     127  

Revocation of Consents

     128  

Solicitation of Consents

     128  

Other Information

     128  

Assistance

     128  

 

xii


Table of Contents
     Page  

PROPOSALS

     129  

Proposal 1—Merger Proposal

     129  

Proposal 2—Compensation Proposal

     129  

THE MERGER AGREEMENT

     130  

Structure of the Mergers and Post-Closing Restructuring Steps

     130  

Closing; Effective Time of the Mergers

     131  

Merger Consideration; Effect of the Mergers on Capital Stock

     131  

Treatment of Oaktree Equity Awards

     132  

Conversion of Units, Exchange of Certificates, Withholding and Dividends and Distributions

     132  

Election Procedures & Proration Adjustments

     133  

Treatment of Fractional Shares

     134  

Representations and Warranties

     134  

Conduct of Business of Oaktree Prior to Completion of the Mergers

     138  

Permitted Distributions

     140  

Oaktree Written Consent; Oaktree Unitholder Meeting

     141  

No Solicitation of Acquisition Proposals

     141  

Adverse Recommendation Change

     143  

Regulatory Approvals; Efforts to Complete the Mergers

     144  

Client Consent Percentage

     145  

Directors’ and Officers’ Insurance

     146  

Other Covenants and Agreements

     146  

Conditions to Completion of the Mergers

     147  

Termination of the Merger Agreement

     149  

Effect of Termination

     150  

Termination Fee

     151  

Expenses

     151  

Amendments and Waivers

     151  

No Third-Party Beneficiaries

     151  

Specific Performance

     152  

Governing Law

     152  

Explanatory Note Regarding the Merger Agreement

     152  

THE SUPPORT AGREEMENT

     153  

REIMBURSEMENT AGREEMENT

     156  

EXCHANGE AGREEMENT

     157  

THE A&R OPERATING AGREEMENT

     161  

TRA AMENDMENT

     165  

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

     166  

U.S. Holders

     168  

Non-U.S. Holders

     172  

Backup Withholding

     173  

MATERIAL CANADIAN FEDERAL INCOME TAX CONSIDERATIONS

     174  

COMPARATIVE MARKET PRICE DATA AND DIVIDEND AND DISTRIBUTION INFORMATION

     176  

DESCRIPTION OF BROOKFIELD CAPITAL STOCK

     178  

COMPARISON OF UNITHOLDERS’ AND SHAREHOLDERS’ RIGHTS

     181  

IMPORTANT INFORMATION REGARDING OAKTREE

     198  

Company Background

     198  

Directors and Executive Officers

     198  

Prior Public Offerings

     201  

Book Value Per Unit

     201  

Transactions in Oaktree Class A Units

     201  

Agreements Involving Oaktree Securities

     202  

Oaktree Beneficial Ownership

     202  

 

xiii


Table of Contents


Table of Contents

SUMMARY TERM SHEET

This Summary Term Sheet highlights selected information from this consent solicitation statement/prospectus. It may not contain all of the information that is important to you. You are urged to read this entire consent solicitation statement/prospectus and the other documents referred to or incorporated by reference into this consent solicitation statement/prospectus in order to fully understand the mergers, the merger agreement and the transactions contemplated thereby. See the section entitled “Where You Can Find More Information” beginning on page 219 of this consent solicitation statement/prospectus. Each item in this Summary Term Sheet refers to the beginning page of this consent solicitation statement/prospectus on which that subject is discussed in more detail.

The Parties to the Merger Agreement (See page 124)

Brookfield Asset Management Inc.

Brookfield Asset Management Inc., referred to as “Brookfield,” is a global alternative asset manager with over $365 billion in assets under management, referred to as “AUM”, and $150 billion in fee bearing capital. For more than 120 years, it has owned and operated assets on behalf of shareholders and investors with a focus on investing in long-life, high-quality assets across real estate, renewable power, infrastructure and private equity. Brookfield offers a range of public and private investment products and services which leverage its expertise and experience. Brookfield class A shares are co-listed on the NYSE under the symbol “BAM,” the TSX under the symbol “BAM.A” and Euronext under the symbol “BAMA.”

Brookfield was formed by articles of amalgamation dated August 1, 1997 and is organized pursuant to articles of amalgamation under the OBCA dated January 1, 2005.

Brookfield’s principal executive offices are located at 181 Bay Street Toronto, Ontario, Canada M5J 2T3, and its telephone number is (416) 363-9491.

Berlin Merger Sub, LLC

Berlin Merger Sub, a Delaware limited liability company and indirect wholly-owned subsidiary of Brookfield, referred to as “Berlin Merger Sub,” was formed solely for the purpose of facilitating the initial merger. Berlin Merger Sub has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the merger agreement. By operation of the merger, Berlin Merger Sub will be merged with and into Oaktree. As a result, Oaktree will survive the merger. Upon completion of the initial merger, Berlin Merger Sub will cease to exist as a separate entity.

Berlin Merger Sub’s principal executive offices are located at Brookfield Place, 250 Vesey Street, 15th Floor, New York, NY, 10281, and its telephone number is (212) 417-7000.

Oaktree Capital Group LLC

Oaktree Capital Group LLC, referred to as “Oaktree,” is a global investment manager specializing in alternative investments, with $118.6 billion in AUM as of March 31, 2019. It emphasizes an opportunistic, value-oriented and risk-controlled approach to investments in credit, private equity, real assets and listed equities. Oaktree’s clientele (excluding DoubleLine’s clientele) includes 71 of the 100 largest U.S. pension plans, 38 state retirement plans in the United States, over 390 corporations and/or their pension funds, over 330 university, charitable and other endowments and foundations, over 15 sovereign wealth funds, and over 350 other non-U.S. institutional investors. Headquartered in Los Angeles, Oaktree serves these clients with 950 employees and offices in 18 cities worldwide.



 

1


Table of Contents

Oaktree’s business is comprised of one segment, its investment management business, which consists of the investment management services that it provides to its clients. Oaktree’s revenue flows from the management fees and incentive income generated by the funds that it manages, as well as the investment income earned from the investments it makes in Oaktree funds, third-party funds and other companies. See the section entitled “Important Information Regarding Oaktree” beginning on page 198 of this consent solicitation statement/prospectus.

Oaktree’s principal executive offices are located at 333 South Grand Avenue, 28th Floor, Los Angeles, CA 90071, and its telephone number is (213) 830-6300.

Oslo Holdings LLC

Oslo Holdings LLC, a Delaware limited liability company and wholly-owned subsidiary of OCGH, referred to as “SellerCo,” was formed solely for the purpose of facilitating the subsequent merger and the OCGH exchange. Oslo Holdings LLC has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the merger agreement. By operation of the subsequent merger, Oslo Holdings LLC will be merged with and into Oslo Holdings Merger Sub LLC. Upon the completion of the subsequent merger, Oslo Holdings LLC will cease to exist and Oslo Holdings Merger Sub LLC will continue as the surviving company.

Oslo Holding LLC’s principal executive offices are located at 333 South Grand Avenue, 28th Floor, Los Angeles, CA 90071, and its telephone number is (213) 830-6300.

Oslo Holdings Merger Sub LLC

Oslo Holdings Merger Sub LLC, a Delaware limited liability company and wholly-owned subsidiary of Oaktree, referred to as “Seller MergerCo,” was formed solely for the purpose of facilitating the subsequent merger and the OCGH exchange. Oslo Holdings Merger Sub LLC has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the merger agreement. By operation of the subsequent merger, Oslo Holdings LLC will be merged with and into Oslo Holdings Merger Sub LLC. Upon the completion of the subsequent merger, Oslo Holdings LLC will cease to exist and Oslo Holdings Merger Sub LLC will continue as the surviving company.

Oslo Holding Merger Sub LLC’s principal executive offices are located at 333 South Grand Avenue, 28th Floor, Los Angeles, CA 90071, and its telephone number is (213) 830-6300.

Oaktree Solicitation of Written Consents (See page 126)

Written Consents

Oaktree unitholders are being asked to “CONSENT” to the merger proposal and “CONSENT” to the compensation proposal, by signing and delivering the written consent furnished with this consent solicitation statement/prospectus.

Units Entitled to Consent and Consent Required

Only Oaktree unitholders of record as of the close of business on the record date, which is June 17, 2019, will be entitled to receive this consent solicitation statement/prospectus and be entitled to sign and return a written consent. Under the Oaktree operating agreement, each Oaktree class A unit entitles the holder thereof as of the relevant record date to one vote on each matter submitted to a vote or to be acted on by written consent of Oaktree unitholders, and each Oaktree class B unit entitles the holder thereof as of the relevant record date to 10 votes on each matter submitted to a vote or to be acted on by written consent of Oaktree unitholders.



 

2


Table of Contents

Approval of the merger proposal and, on a non-binding, advisory basis, the compensation proposal, each requires the consent of the holders of a majority of the outstanding Oaktree class A units and Oaktree class B units, voting together as a single class and entitled to vote. As of the record date, there were 75,649,487 Oaktree class A units and 84,001,461 Oaktree class B units outstanding and entitled to consent with respect to the merger proposal and, on a non-binding, advisory basis, the compensation proposal.

Directors and officers of Oaktree and their affiliates (which includes OCGH) owned and are entitled to consent with respect to 956,682 Oaktree class A units and 84,001,461 Oaktree class B units, representing approximately 91.8428% of the aggregate voting power of the Oaktree units issued and outstanding as of the close of business on the record date. Oaktree currently expects that its directors and officers will deliver written consents in favor of the merger proposal and, on a non-binding, advisory basis, the compensation proposal, although none of them has directly entered into any agreements obligating him or her to do so. Nevertheless, OCGH, through which certain directors and executive officers hold equity, has agreed, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, to deliver to Oaktree a written consent with respect to all of its Oaktree units under a support agreement between OCGH, Oaktree and Brookfield, which represents approximately 91.7397% of the aggregate voting power of the Oaktree units issued and outstanding as of the close of business on the record date. For additional information, see the section entitled “The Support Agreement” beginning on page 153 of this consent solicitation statement/prospectus.

Effects of the Mergers (See page 28 and Annex A)

 

   

Prior to the closing, OCGH unitholders will participate in the OCGH exchange, whereby OCGH unitholders will contribute all (in the case of institutional holders) or a portion (in the case of non-institutional holders) of their OCGH units to SellerCo, in exchange for the receipt of an equivalent number of SellerCo units.

 

   

In the initial merger, Berlin Merger Sub will be merged with and into Oaktree. Oaktree will be the surviving company in the initial merger and will no longer have publicly traded common equity. At the effective time of the initial merger, each outstanding Oaktree class A unit (other than Oaktree excluded units) will be converted into the right to receive and become exchangeable for the merger consideration, with cash paid in lieu of fractional shares, and each Oaktree restricted unit will be converted into an unvested OCGH unit.

 

   

Immediately following the effective time of the initial merger, SellerCo will be merged with and into Seller MergerCo. Seller MergerCo will be the surviving company in the subsequent merger and will, by operation of law, after the subsequent effective time own all of the OCGH units received by SellerCo in the OCGH exchange. At the subsequent effective time, each outstanding SellerCo unit received in the OCGH exchange will be converted into the right to receive and become exchangeable for the merger consideration, with cash paid in lieu of fractional shares.

 

   

Following the subsequent merger, Seller MergerCo will liquidate, thereby distributing the OCGH units it received in the subsequent merger to the intermediate holdcos. Following the liquidation of Seller MergerCo, OCGH will redeem the OCGH units received by the intermediate holdcos as a result of the liquidation of Seller MergerCo in exchange for Oaktree operating group units. As a result of the post-closing restructuring steps following the subsequent merger, Brookfield will indirectly own a 62% economic interest in the Oaktree operating group and the OCGH unitholders, consisting primarily of Messrs. Karsh and Marks and certain other members of Oaktree’s management and current and former employees, will indirectly own the remaining 38% economic interest in the Oaktree operating group through their ownership in OCGH.

A copy of the merger agreement is attached as Annex A to this consent solicitation statement/prospectus. You are encouraged to read the merger agreement carefully, as it is the legal document that governs the mergers.



 

3


Table of Contents

All descriptions in this Summary Term Sheet and elsewhere in this consent solicitation statement/prospectus of the terms and conditions of the mergers are qualified by reference to the merger agreement. For more information on the merger agreement, see the section entitled “The Merger Agreement” beginning on page 130 of this consent solicitation statement/prospectus.

Merger Consideration (See page 131)

At the effective time of the initial merger, each Oaktree class A unit (other than Oaktree excluded units) will be converted into the right to receive and become exchangeable for either: (1) 1.0770 fully paid and nonassessable Brookfield class A shares; or (2) $49.00 in cash, without interest, subject to proration. At the subsequent effective time, each SellerCo unit will be converted into the right to receive and become exchangeable for either: (1) 1.0770 fully paid and nonassessable Brookfield class A shares; or (2) $49.00 in cash, without interest, subject to proration. No fractional shares will be issued in the mergers, and Oaktree and SellerCo unitholders will each receive cash in lieu of any fractional shares.

Although each Oaktree unitholder and SellerCo unitholder may elect to receive either cash consideration or share consideration, the aggregate merger consideration will be prorated as necessary to ensure that 50% of the combined outstanding Oaktree class A units and SellerCo units will be exchanged for cash consideration and 50% of the combined outstanding Oaktree class A units and SellerCo units will be exchanged for share consideration.

On March 12, 2019, which was the last full trading day before the public announcement of the mergers, the closing price of a Brookfield class A share was $45.99, which after giving effect to the 1.0770 exchange ratio, has an implied value of approximately $49.53 per unit. Based on this price and the cash consideration of $49.00, which represents a premium of approximately 11.8% over Oaktree’s closing unit price on March 12, 2019, upon completion of the mergers, an Oaktree unitholder or SellerCo unitholder who receives cash consideration for 50% and share consideration for 50% for his, her, or its Oaktree class A units or SellerCo units would receive total consideration with an implied value of approximately $49.27 per unit, which represents a premium of approximately 12.4% over Oaktree’s closing unit price on March 12, 2019. On June 18, 2019, the most recent practicable date prior to the date of this consent solicitation statement/prospectus, the closing price of a Brookfield class A share was $47.98, which after giving effect to the 1.0770 exchange ratio, has an implied value of approximately $51.67 per unit. Based on this price and the cash consideration of $49.00, upon completion of the mergers, an Oaktree unitholder or SellerCo unitholder who receives cash consideration for 50% and share consideration for 50% for his, her, or its Oaktree class A units or SellerCo units would receive total consideration with an implied value of approximately $50.34 per unit. Because Brookfield will issue a fixed number of Brookfield class A shares in the mergers in exchange for each Oaktree class A unit and each SellerCo unit, the value of the merger consideration that Oaktree and SellerCo unitholders will receive in the mergers will depend on the market price of Brookfield class A shares at the effective time of the mergers. As a result, the value of the merger consideration that Oaktree and SellerCo unitholders will receive in the mergers could be greater than, less than or the same as the value of the merger consideration on the date of this consent solicitation statement/prospectus.

Election Procedures & Proration Adjustments (See page 133)

Holders of Oaktree class A units and SellerCo units will be able to exercise their right to make an election for cash consideration or share consideration during a period of at least twenty calendar days, referred to as the “election period.” Brookfield and Oaktree will jointly announce the commencement of the election period. The election period will end at 5:00 p.m., New York City time, on the date that is three business days prior to the closing date, referred to as the “election deadline.” At least five business days prior to the election deadline, Brookfield and Oaktree will announce the exact date of the election deadline.



 

4


Table of Contents

Any registered holder of Oaktree class A units or SellerCo units may make an election up until the election deadline. To be effective, a form of election must be properly completed, signed and submitted to the exchange agent by the election deadline. Brookfield and Oaktree will mail the form of election to registered holders of Oaktree class A units and SellerCo units in order to enable the holder thereof to exercise his, her or its right to make an election. In addition, the exchange agent will make the form of election available to any person that becomes a registered holder of Oaktree class A units or SellerCo units after the initial mailing of the form of election and prior to the election deadline.

Share elections and cash elections are subject to the proration adjustment procedures described in this consent solicitation statement/prospectus to ensure that the aggregate merger consideration will be divided evenly with 50% of the combined outstanding Oaktree class A units and SellerCo units receiving cash consideration and 50% of the combined outstanding Oaktree class A units and SellerCo units receiving share consideration, such that the aggregate merger consideration paid by Brookfield will be 50% cash consideration and 50% share consideration. Holders who fail to make an election or who make an untimely election (or who otherwise are deemed not to have submitted an effective form of election), referred to as “non-electing holders,” will be deemed to have elected (i) cash consideration with respect to 50% of such holder’s Oaktree class A units and SellerCo units (rounded up to the nearest whole unit) and (ii) share consideration with respect to the other 50% of such holder’s Oaktree class A units and SellerCo units (rounded down to the nearest whole unit).

After an election is validly made, any subsequent transfer of units will automatically revoke such election. The transferee will have until the election deadline to submit a new election with respect to such transferred units. Any holder entitled to make an election of merger consideration may, at any time prior to the election deadline, revoke such election by written notice received by the exchange agent prior to the election deadline accompanied by a properly completed and signed revised form of election. Any holder who has validly revoked his, her or its merger consideration election and has not properly submitted a new duly completed form of election will be deemed to be a non-electing holder.

If you hold your shares in “street name” through a bank, broker or other holder of record, you should receive instructions from your bank, broker or other holder of record with instructions on how to instruct your bank, broker or other holder of record with regard to your election. You should instruct your bank, broker or other holder of record what election to make on your behalf by carefully following the instructions that you will receive from your bank, broker or other holder of record. Your bank, broker or other holder of record may establish a deadline earlier than the election deadline for making your election. Please contact your bank, broker or other holder of record with any questions regarding your election.

The exchange agent will determine, in its reasonable discretion, whether any election is not properly made, changed or revoked with respect to any Oaktree class A units or SellerCo units.

For more information regarding the election procedures and proration adjustments, see the section entitled “The Merger Agreement—Election Procedures & Proration Adjustments” beginning on page 133 of this consent solicitation statement/prospectus.

Treatment of Oaktree Equity Awards (See page 132)

Immediately prior to the effective time, each Oaktree restricted unit will be automatically converted into a common unit of OCGH having the same terms and conditions (including vesting) that applied to the applicable Oaktree restricted unit from which such common unit was converted, except as otherwise modified by the organizational documents of OCGH and the exchange agreement.



 

5


Table of Contents

Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers (See page 52)

The Oaktree board unanimously recommends that Oaktree’s unitholders, by executing and returning the written consent furnished with this consent solicitation statement/prospectus:

 

   

“CONSENT” to the merger proposal; and

 

   

“CONSENT” to the compensation proposal.

For a description of the reasons considered by the special committee and the Oaktree board in deciding to recommend approval of the proposal to adopt the merger agreement and approve the transactions contemplated thereby, including the mergers, see the section entitled “Special Factors—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers” beginning on page 52 of this consent solicitation statement/prospectus.

Opinion of Oaktree’s Financial Advisor (See page 59 and Annex D)

Perella Weinberg Partners LP, referred to as “Perella Weinberg,” rendered its oral opinion, subsequently confirmed in writing, to the Oaktree board that, as of March 13, 2019, and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations set forth in the written opinion, the merger consideration to be received by the holders of Oaktree class A units (other than excluded holders), solely in their capacity as such, pursuant to the merger agreement was fair, from a financial point of view, to such holders.

The full text of Perella Weinberg’s written opinion, dated March 13, 2019, which sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken by Perella Weinberg, is attached as Annex D to this consent solicitation statement/prospectus and is incorporated by reference herein. Holders of Oaktree units are urged to read Perella Weinberg’s opinion carefully and in its entirety. The opinion does not address Oaktree’s underlying business decision to enter into the merger agreement or any of the other transactions contemplated by the merger agreement or the relative merits of the initial merger or such other transactions as compared with any other strategic alternative which may be available to Oaktree. The opinion was not intended to be and does not constitute a recommendation to any holder of Oaktree units or to the holder of any other securities as to how to vote or otherwise act with respect to the initial merger or any other matter, including what form of merger consideration any such holder should elect to receive pursuant to the election procedure set forth in the merger agreement. The opinion does not in any manner address the prices at which the Oaktree class A units or Brookfield class A shares will trade at any time. In addition, Perella Weinberg expressed no opinion as to the fairness of the mergers to, or any consideration received in connection with the mergers by, the holders of any other class of securities, creditors or other constituencies of Oaktree. Perella Weinberg provided its opinion for the information and assistance of the Oaktree board, acting in its capacity as such, in connection with, and for the purposes of its evaluation of, the initial merger. This summary is qualified in its entirety by reference to the full text of the opinion.

For a description of the opinion that the Oaktree board received from Perella Weinberg, see the section entitled “Special Factors—Opinion of Oaktree’s Financial Advisor” beginning on page 59 of this consent solicitation statement/prospectus.

Opinion of Special Committee’s Financial Advisor (See page 69 and Annex E)

The special committee’s financial advisor, Sandler O’Neill & Partners, L.P., referred to herein as “Sandler O’Neill,” rendered a written opinion to the special committee, dated March 13, 2019, to the effect that, as of such



 

6


Table of Contents

date, the merger consideration was fair to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those holders of Oaktree class A units who are also equity holders of OCGH and holders of Oaktree restricted units) from a financial point of view. The full text of Sandler O’Neill’s opinion is attached as Annex E to this consent solicitation statement/prospectus. The opinion outlines the procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken by Sandler O’Neill in rendering its opinion. Holders of Oaktree class A units are urged to read the entire opinion carefully in connection with their consideration of the proposed initial merger.

Sandler O’Neill’s opinion speaks only as of the date of the opinion. The opinion was directed to the special committee (in its capacity as such) in connection with its consideration of the merger agreement and the initial merger and does not constitute a recommendation to any unitholder of Oaktree as to how any such unitholder should act with respect to the mergers, including, without limitation, what election any holder of Oaktree class A units should make regarding the cash consideration, the share consideration or any combination thereof. Sandler O’Neill’s opinion did not address the underlying business decision of Oaktree to engage in the mergers, the form or structure of the mergers, the OCGH exchange or any other transactions contemplated in the merger agreement, the relative merits of the mergers and the OCGH exchange as compared to any other alternative transactions or business strategies that might exist for Oaktree or the effect of any other transaction in which Oaktree might engage.

Purpose and Reasons of Oaktree for the Mergers (See page 87)

Oaktree’s purpose for engaging in the mergers is to enable Oaktree class A unitholders to receive either $49.00 in cash or 1.0770 Brookfield class A shares in exchange for each Oaktree class A unit (subject to pro-ration), without interest and less any applicable withholding taxes, which merger consideration represents a premium of approximately 12.4% (on a combined cash consideration and share consideration basis) to the closing price of Oaktree class A units on March 12, 2019, the last full trading day before the public announcement of the mergers.

For additional information, see the section entitled “Special Factors—Purpose and Reasons of Oaktree for the Mergers” beginning on page 87 of this consent solicitation statement/prospectus.

Purpose and Reasons of the OCGH Filing Parties and the Brookfield Filing Parties for the Transactions (See pages 87 and 89)

Under the SEC rules governing “going private” transactions, each of the OCGH filing parties and the Brookfield filing parties may be deemed an affiliate of Oaktree and, therefore, is required to express its purposes and reasons for the transactions to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. For a description of the OCGH filing parties and the Brookfield filing parties’ purposes and reasons for the transactions to Oaktree’s unaffiliated security holders, see the sections entitled “Special Factors—Purpose and Reasons of the OCGH Filing Parties for the Mergers” and “—Purpose and Reasons of the Brookfield Filing Parties for the Mergers” beginning on pages 87 and 89, respectively, of this consent solicitation statement/prospectus.

Positions of the OCGH Filing Parties and the Brookfield Filing Parties as to the Fairness of the Transactions (See pages 91 and 93)

Under the SEC rules governing “going private” transactions, each of the OCGH filing parties and the Brookfield filing parties may be deemed an affiliate of Oaktree and, therefore, is required to express its beliefs as to the fairness of the transactions, including the mergers, to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. For a description of the OCGH filing parties and the Brookfield filing parties’



 

7


Table of Contents

beliefs as to the fairness of the transactions, including the mergers, to Oaktree’s unaffiliated security holders, see the sections entitled “Special Factors—Position of the OCGH Filing Parties as to the Fairness of the Mergers” and “—Position of the Brookfield Filing Parties as to the Fairness of the Mergers” beginning on pages 91 and 93, respectively, of this consent solicitation statement/prospectus.

Interests of Oaktree Directors and Executive Officers in the Mergers (See page 97)

In addition to their interests in the mergers as unitholders, certain of Oaktree’s directors and executive officers have interests in the mergers that may be different from, or in addition to, the interests of Oaktree’s unitholders generally, which are described below. You should be aware of these interests. The members of the Oaktree board and special committee were aware of and considered these interests in reaching the determination of whether to approve the merger agreement and deem the merger agreement and the transactions contemplated by the merger agreement to be fair to, and in the best interests of, Oaktree and its unitholders.

These interests include the following:

 

   

It is anticipated that Howard Marks will join the Brookfield board following the completion of the mergers;

 

   

In the initial merger, each vested Oaktree class A unit (other than Oaktree excluded units), including those held by Oaktree’s directors and executive officers, will be converted into the right to receive and be exchanged for the merger consideration;

 

   

In the OCGH exchange, each holder of vested OCGH units (other than the Existing Institutional Investors, as such term is defined in the OCGH LPA) including those held by certain of Oaktree’s directors and executive officers, will receive SellerCo units in exchange for 20% of the OCGH units held by such holder immediately prior to the mergers;

 

   

In the subsequent merger, each holder of SellerCo units, including those held by certain of Oaktree’s directors and executive officers, will be converted into the right to receive and be exchanged for the merger consideration;

 

   

Up to 50% of the Brookfield class A shares received in exchange for SellerCo units by Oaktree directors and officers (including those held by certain of Oaktree’s directors and executive officers) in the subsequent merger will be subject to a 90-day restriction on sale by such holders;

 

   

Immediately prior to the effective time, each Oaktree restricted unit, including those held by Oaktree’s directors and executive officers, will be automatically converted into a common unit of OCGH having the same terms and conditions (including vesting) that applied to the applicable Oaktree restricted unit from which such common unit was converted, except as otherwise modified by the organizational documents of OCGH and the exchange agreement;

 

   

The following units held by Oaktree’s directors and executive officers are eligible to participate in an exchange (for cash, Brookfield class A shares, notes issued by Atlas, or equity interests in an OCGH subsidiary), in each case once such units have vested: Oaktree restricted units that are converted into OCGH units in the merger; OCGH units issued and outstanding at closing; and OCGH units issued after closing pursuant to certain agreements in effect on March 13, 2019;

 

   

If exchanged in the open periods in 2020 or 2021, former Oaktree units, including those held by Oaktree’s directors and executive officers, will be valued at $49.00 per unit, less the amount of any capital distributions received upon vesting, and can only be exchanged for cash or Brookfield class A shares, at Brookfield’s election;

 

   

Howard Marks, Bruce Karsh, Jay Wintrob, John Frank, Sheldon Stone, Richard Masson and Larry Keele can, for the open period beginning in 2022, exchange up to 20% of the OCGH units held by



 

8


Table of Contents
 

them, in aggregate, at closing (or issued pursuant to certain agreements in place at closing), and for each year thereafter, they will be able to exchange an additional 20% of such OCGH units (subject to yearly caps and inclusive of any prior exchanges), such that they will be entitled to exchange 100% of their OCGH units beginning during the open period in 2026 (subject to yearly caps);

 

   

Subject to certain exceptions, in the case of the acquisition, directly or indirectly, of control of Brookfield by a person that is materially engaged in a core business that is directly and materially competitive with a core Oaktree strategy, or if Brookfield or Atlas files for bankruptcy, then OCGH has the right to require Brookfield to promptly sell to OCGH all of Brookfield’s interests in the Oaktree operating group. Certain of Oaktree’s directors and executive officers hold OCGH units and would indirectly receive the benefit of any exercise of OCGH’s right to acquire Brookfield’s interests in the Oaktree operating group;

 

   

Under the TRA Amendment and pursuant to the exchange agreement, the limited partners of OCGH, which include certain Oaktree directors and executive officers, will be entitled to receive an aggregate of $66 million on each of the first, second and third anniversaries of the closing with respect to tax benefits resulting from exchanges of OCGH units that occur on or after March 13, 2019 and will forgo any right to payment under the TRA related to such exchanges;

 

   

Following the effective time, Brookfield or one of its designees will establish a cash bonus pool in a cumulative aggregate amount equal to $150 million (the “Bonus Fund”), funded in equal annual installments over a period of no less than three years following the effective time and allocated among the then-current employees in Oaktree’s sole discretion. While no portion of the Bonus Fund will be allocated prior to the effective time, it is possible that a portion of the Bonus Fund will be allocated to Oaktree’s executive officers;

 

   

Mr. Wintrob is entitled to accelerated vesting of his equity award upon termination of employment without cause or resignation by Mr. Wintrob for good reason within a certain period following a change in control; and

 

   

The merger agreement provides that Oaktree’s directors and executive officers will have the right to indemnification and continued coverage under directors’ and executive officers’ liability insurance policies following the mergers. In addition, the merger agreement provides that Oaktree’s directors and officers will continue to have any rights they may have under the A&R operating agreement, the organizational documents of any Oaktree subsidiaries, under the DLLCA or any other applicable law or under any other agreement. The A&R operating agreement provides indemnification to Oaktree’s directors and officers, and provides for the advancement of expenses actually and reasonably incurred in defending any proceeding.

For more information, see the section entitled “Special Factors—Interests of Oaktree Directors and Executive Officers in the Mergers” beginning on page 97 of this consent solicitation statement/prospectus.

No Solicitation of Acquisition Proposals (See page 141)

Under the merger agreement, Oaktree has agreed that neither it nor its subsidiaries will:

 

   

solicit, initiate or knowingly take any action to knowingly facilitate or encourage the submission of any acquisition proposal;

 

   

enter into or participate in any discussions or negotiations with any third party regarding an acquisition proposal or that would reasonably be expected to lead to an acquisition proposal;

 

   

furnish any non-public information relating to Oaktree or any of its subsidiaries or afford access to the business, properties, assets, books or records of Oaktree or any of its subsidiaries to any third party in connection with activities described in the immediately preceding bullet;



 

9


Table of Contents
   

make an adverse recommendation change as described below under the heading “—Adverse Recommendation Change”; or

 

   

enter into any agreement in principle, letter of intent, term sheet, merger agreement, acquisition agreement, option agreement or other similar instrument relating to an acquisition proposal, other than an acceptable confidentiality agreement as described below.

However, if after the date of the merger agreement but prior to the receipt of the Oaktree member approval, Oaktree receives a bona fide acquisition proposal that did not result from a material breach of the non-solicitation restrictions applicable to Oaktree (including, for the avoidance of doubt, any material breach by any of Oaktree’s or its subsidiaries’ representatives of such non-solicitation restrictions), Oaktree and its representatives may contact the person or group of persons making such acquisition proposal to request clarification of the terms and conditions of such acquisition proposal so as to determine whether it constitutes, or could reasonably be expected to result in, a superior proposal, and if the Oaktree board (acting on the recommendation of the special committee) or the special committee determines in good faith, after consultation with Oaktree’s financial advisors, that such acquisition proposal constitutes or could reasonably be expected to result in a superior proposal, then Oaktree may:

 

   

engage and participate in negotiations or discussions with such third party and its representatives with respect to such acquisition proposal; and

 

   

furnish to such third party or its representatives non-public information relating to Oaktree or any of its subsidiaries pursuant to an acceptable confidentiality agreement, provided that all such information (to the extent it has not been previously provided or made available to Brookfield) is provided or made available to Brookfield substantially concurrently with (and in any event within 24 hours after) the time it is provided or made available to the third party.

For more information, see the section entitled “The Merger Agreement—No Solicitation of Acquisition Proposals” beginning on page 141 of this consent solicitation statement/prospectus.

Adverse Recommendation Change (See page 143)

Under the merger agreement, subject to certain exceptions described below, Oaktree has agreed to not withdraw, qualify or modify the recommendation of the Oaktree board in favor of the adoption of the merger agreement.

However, the Oaktree board (acting on the recommendation of the special committee) or the special committee is permitted, prior to the receipt of the Oaktree member approval, to make an adverse recommendation change, only in response to (A) Oaktree receiving a bona fide written acquisition proposal that constitutes a superior proposal that did not arise from a breach by Oaktree (including, for the avoidance of doubt, any breach by any of Oaktree’s or its subsidiaries’ representatives) of the non-solicit restrictions applicable to it or (B) an intervening event, if and only if:

 

   

the Oaktree board or the special committee determines in good faith, after consulting with and receiving advice from outside counsel, that the failure to effect an adverse recommendation change would reasonably be expected to be inconsistent with its fiduciary duties under the DLLCA or the Oaktree operating agreement;

 

   

Oaktree gives notice to Brookfield of its intent to make an adverse recommendation change;

 

   

during the five business days after receipt by Brookfield of such notice, Oaktree negotiates, and directs its financial advisors and legal counsel to negotiate, with Brookfield in good faith regarding proposed adjustments to the merger agreement (to the extent that Brookfield desires to negotiate) such that the superior proposal would cease to constitute a superior proposal, or in the case of an intervening event,



 

10


Table of Contents
 

so that the failure to make an adverse recommendation change would no longer reasonably be expected to be inconsistent with the Oaktree board’s fiduciary duties under the DLLCA or the Oaktree operating agreement; and

 

   

following the end of such five business day period, the Oaktree board shall have determined in good faith, after consulting with and receiving advice from outside counsel, and taking into account any changes to the merger agreement proposed in writing by Brookfield in response to Oaktree’s notice, that the superior proposal giving rise to Oaktree’s notice of an intent to make an adverse recommendation change continues to be a superior proposal or, in the case of an intervening event, that the failure to effect an adverse recommendation change would continue to reasonably be expected to be inconsistent with the Oaktree board’s fiduciary duties under the DLLCA or the Oaktree operating agreement.

For more information, see the section entitled “The Merger Agreement—Adverse Recommendation Change” beginning on page 143 of this consent solicitation statement/prospectus.

Completion of the Merger Transactions is Subject to Certain Conditions (See page 147)

As more fully described in this consent solicitation statement/prospectus and in the merger agreement, the obligations of Brookfield and Oaktree to complete the merger transactions are subject to the satisfaction of a number of conditions, including the following:

 

   

adoption of the merger agreement by the Oaktree unitholders;

 

   

there shall not be in force an injunction or order of any court or other governmental authority of competent jurisdiction enjoining, prohibiting or rendering illegal the consummation of the initial merger or the subsequent merger or the transactions contemplated by the merger agreement, in each case whether temporary, preliminary or permanent;

 

   

the waiting period (or extensions thereof) applicable to the merger under the HSR Act must have expired or been terminated and certain other required regulatory filings, clearances or approvals must have been filed, occurred or been obtained;

 

   

with respect to the change in ownership of OCMI, either FINRA shall have provided written approval or 30 days shall have elapsed during which FINRA has not advised that the consummation of the merger is prohibited without FINRA’s prior approval or that FINRA expects to disapprove of the applicable filing;

 

   

CFIUS clearance shall have been obtained and the ITAR pre-notification requirement, if applicable, shall have been satisfied;

 

   

the registration statement on Form F-4 of which this consent solicitation statement/prospectus forms a part shall have been declared effective by the SEC at least 20 business days prior to the closing and no stop order shall be in effect and no proceedings for that purpose shall have been initiated by the SEC and not withdrawn;

 

   

the Brookfield class A shares to be issued in the mergers shall have been approved for listing on the NYSE, subject to official notice of issuance;

 

   

the OCGH exchange shall have been completed in accordance with the terms of the support agreement;

 

   

the forms of the restructuring documentation, exchange agreement and TRA amendment shall have been agreed upon by the parties, and the parties shall have entered into each of the transaction documents (other than the support agreement) and they shall each be binding; and



 

11


Table of Contents
   

investment advisory clients representing at least 82.5% of the aggregate annualized investment advisory or similar fees of all Oaktree investment advisory clients (based upon assets under management as of February 28, 2019) will have not objected to the transactions.

For more information, see the section entitled “The Merger Agreement—Conditions to Completion of the Mergers” beginning on page 147 of this consent solicitation statement/prospectus.

Termination of the Merger Agreement (See page 149)

Oaktree and Brookfield may mutually agree to terminate the merger agreement at any time prior to the effective time. The merger agreement may be terminated in certain other circumstances, including the following:

 

   

by either Brookfield or Oaktree, if the initial merger is not consummated by March 13, 2020, referred to as the “end date,” which may be extended by either Oaktree or Brookfield under certain circumstances up to a date no later than June 13, 2020, provided that this termination right shall not be available to any party whose breach of any provision of the merger agreement is a primary cause of the failure of the initial merger to be consummated by such time;

 

   

by either Oaktree or Brookfield, if an order or injunction of any court or governmental authority of competent jurisdiction enjoining, prohibiting or rendering illegal the consummation of the initial merger or the subsequent merger or the transactions contemplated by the merger agreement becomes final and nonappealable, provided this termination right will not be available to any party whose breach of any provision of the merger agreement is a primary cause of the existence of such injunction, prohibition or rendering of illegality;

 

   

by either Oaktree or Brookfield, if CFIUS communicates to the parties that it intends to send a report to the President recommending that the President suspend or prohibit the transactions or if the President decides to suspend or prohibit the transactions, provided this termination right will not be available to any party whose breach of any provision of the merger agreement is the primary cause of such actions by CFIUS or the President;

 

   

by either Brookfield or Oaktree, if the other party has materially breached any of its representations, warranties, covenants or agreements contained in the merger agreement such that the corresponding closing conditions would not be satisfied, subject to a cure period, provided that a party may not exercise this termination right if it is then in material breach of its obligations under the merger agreement;

 

   

by either Brookfield or Oaktree, if, following an Oaktree unitholder meeting election, the adoption of the merger agreement by Oaktree unitholders is not obtained by the time that the meeting of Oaktree unitholders held for the purpose of adopting the merger agreement (including any adjournments or postponements) shall have been concluded;

 

   

by Brookfield, if, prior to obtaining the Oaktree member approval, the Oaktree board or the special committee has made an adverse recommendation change or there shall have occurred another triggering event; or

 

   

by Brookfield, if there is a written consent failure.

For more information, see the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 149 of this consent solicitation statement/prospectus.



 

12


Table of Contents

Termination Fee (See page 151)

If the merger agreement is terminated under certain circumstances, Oaktree may be required to pay to Brookfield a termination fee equal to $225 million, referred to as the “termination fee.” This termination fee could discourage other companies from seeking to acquire or merge with Oaktree. For more information, see the sections entitled “The Merger Agreement—Expenses” and “—Termination Fee” beginning on page 151, of this consent solicitation statement/prospectus.

Pursuant to the reimbursement agreement, under certain circumstances Oaktree will be reimbursed by Messrs. Karsh and Marks for its payment of the termination fee. See the section entitled “Reimbursement Agreement” beginning on page 156 of this consent solicitation statement/prospectus.

Regulatory Approvals (See page 101)

Each of Brookfield and Oaktree has agreed generally to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary or advisable under applicable law to complete and make effective, as promptly as practicable (but no later than the end date), the transactions contemplated by the merger agreement. The notifications and approvals required to consummate the merger and the other transactions contemplated by the merger agreement include the expiration or termination of the applicable waiting period or any applicable approvals or clearances under the HSR Act and certain foreign competition laws, approval from FERC, the CFIUS clearance, the ITAR pre-notification requirement and approval from the UK Financial Conduct Authority and certain other regulatory authorities. Although we expect that all required regulatory clearances and approvals will be obtained, we cannot assure you that these regulatory clearances and approvals will be timely obtained or obtained at all or that the granting of these regulatory clearances and approvals will not involve the imposition of additional conditions on the completion of the mergers.

For more information regarding the regulatory approvals to which completion of the mergers are subject, see the section entitled “Special Factors—Regulatory Approvals Required to Complete the Mergers” on page 101 of this consent solicitation statement/prospectus.

Financing for the Transactions (See page 101)

Brookfield estimates that the total amount of funds required to complete the transactions and pay related fees and expenses will be approximately $2.4 billion. Brookfield expects this amount to be funded through cash on hand and available liquidity.

The Support Agreement (See page 153)

Pursuant to the support agreement, OCGH has agreed to deliver to Oaktree a written consent in favor of the approval of the merger proposal in respect of all Oaktree class A units and Oaktree class B units beneficially owned by it (representing in the aggregate more than a majority of the aggregate voting power of the Oaktree units issued and outstanding and entitled to vote on the merger proposal and the compensation proposal), unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement. The support agreement provides that OCGH will deliver its written consent promptly following the time at which the registration statement of which this consent solicitation statement/prospectus forms a part becomes effective under the Securities Act and receipt by OCGH of this consent solicitation statement/prospectus (and, in any event, within 5 business days after such time). Notwithstanding the foregoing, in the event that the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, OCGH’s voting obligations will be modified so that its obligation to vote in favor of the merger proposal is with respect to (and OCGH cannot vote in excess of) (i) the number of Oaktree



 

13


Table of Contents

units representing 25% of the aggregate voting power of the issued and outstanding Oaktree units plus (ii) the number of Oaktree units the aggregate voting power of which, as a percentage of the aggregate voting power of all outstanding Oaktree units not covered by the preceding clause (i), is equal to the “proportionate percentage”. In this consent solicitation statement/prospectus, proportionate percentage means the percentage of aggregate voting power with respect to all outstanding Oaktree units held by Oaktree unitholders other than OCGH, voting as a single class (taking into account that each holder of the Oaktree class A units is entitled to one vote per unit and each holder of Oaktree class B units is entitled to 10 votes per unit), voting in favor of approving the merger proposal. For more information on the support agreement, see the section entitled “The Support Agreement” beginning on page 153 of this consent solicitation statement/prospectus.

As of the record date, the support agreement covered 13,000 Oaktree class A units and 84,001,461 Oaktree class B units, or approximately 91.7397% of the aggregate voting power of the outstanding Oaktree units entitled to vote on the merger proposal and the compensation proposal. Therefore, the delivery of such written consent by OCGH will, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, constitute the approval of the merger proposal by the requisite majority of the voting power of all outstanding Oaktree units entitled to vote thereon.

The Reimbursement Agreement (See page 156)

In connection with entering into the merger agreement, Oaktree, OCGH, Howard Marks and Bruce Karsh entered into a reimbursement letter agreement providing that, if Oaktree is obligated to pay Brookfield the termination fee in accordance with the merger agreement, then Oaktree and OCGH will take all necessary action to cause Oaktree operating group to bear such fee (together with certain other related costs). The reimbursement agreement further provides that, if Oaktree is required to pay Brookfield the termination fee as a result of termination due to written consent failure at a time when either (i) Brookfield was not eligible to terminate the merger agreement due to a triggering event or (ii) Brookfield was eligible to terminate the merger agreement due to a triggering event as a result of a breach of the merger agreement, in whole or in part, by, or at the direction of, Howard Marks or Bruce Karsh, then Howard Marks and Bruce Karsh will reimburse Oaktree for the termination fee, and the amount to be paid by the Oaktree operating group as described in the preceding sentence will be reduced on a dollar-for-dollar basis. For more information on the reimbursement agreement, see the section entitled “Reimbursement Agreement” beginning on page 156 of this consent solicitation statement/prospectus.

The Exchange Agreement (See page 157)

Under the merger agreement, Oaktree and Brookfield agreed to amend and restate the existing exchange agreement. The exchange agreement will provide, among other things, for the ability of the OCGH limited partners to exchange certain vested OCGH units for one of the following forms of consideration, at the election of Brookfield: cash; Brookfield class A shares; notes issued by Atlas; or equity interests in a subsidiary of OCGH that will entitle such limited partners to the proceeds from a note, provided that Brookfield will not issue notes as consideration for former Oaktree units exchanged in 2020 and 2021.

The only units eligible to participate in an exchange are the following, in each case once such units have vested: unvested Oaktree class A units that are converted into unvested OCGH units in the merger; OCGH units issued and outstanding at closing; and OCGH units issued after closing pursuant to certain agreements in effect on March 13, 2019.

Immediately following the exchange of OCGH units for cash, Brookfield class A shares or notes issued by Atlas, OCGH will redeem each OCGH unit received by Atlas in the exchange and deliver to Atlas a pro rata share of the partnership interests of each Oaktree operating group member. In connection with the exchange of OCGH units for equity interests in a subsidiary of OCGH, the partnership interests of the Oaktree operating group



 

14


Table of Contents

members will be recapitalized to provide Atlas with the applicable number of partnership interests in the Oaktree operating group members. For more information on the exchange agreement, see the section entitled “Exchange Agreement” beginning on page 157 of this consent solicitation statement/prospectus.

Registration Rights

In connection with the transactions contemplated by the merger agreement, Brookfield and the limited partners of OCGH (in such capacity, for purposes of this description of the Registration Rights, the “shareholders”) have agreed to enter into a registration rights agreement, pursuant to which Brookfield will file and cause to become effective a registration statement to register under U.S. federal securities law the resale of the shareholders’ Brookfield class A shares that are registrable securities (as defined in the registration rights agreement) and issuable upon exchange of OCGH units (see the section entitled “Exchange Agreement”), subject to certain qualifications (including without limitation certain agreed upon blackout periods). In addition, certain shareholders will have demand registration rights and rights to participate in registered public offerings by Brookfield, subject to certain qualifications. In connection with an underwritten offering, Brookfield will agree to refrain from transferring any equity securities of Brookfield for a period of up to 60 days, subject to customary exceptions. Brookfield will generally be responsible for all reasonable expenses under the registration rights agreement, excluding any underwriting discounts or commissions on any Brookfield class A shares sold by a selling shareholder. The registration rights agreement will contain customary reciprocal indemnification provisions and will terminate one year following the last day of the final open period as described in the section entitled “Exchange Agreement” beginning on page 157 of this consent solicitation statement/prospectus. For more information on the registration rights agreement, see the section entitled “Exchange Agreement—Registration Rights” beginning on page 159 of this consent solicitation statement/prospectus.

Senior Secured Notes

As noted above under the section entitled “Exchange Agreement,” Brookfield may elect to have Atlas issue notes in connection with certain exchanges. If Brookfield so elects, Atlas and the participating and qualified OCGH limited partners will enter into a notes purchase agreement that will contain, among other things, representations and warranties by each of the parties customary for a private placement securities offering, and other customary affirmative and negative covenants and indemnity provisions. The notes will be guaranteed on a senior basis by Oaktree, certain of Oaktree’s subsidiaries and certain of Atlas’ subsidiaries and secured by all assets of Atlas and the guarantors. The notes will mature three years from the date of issuance and, subject to certain exceptions, bear interest, payable on a quarterly basis, at a fixed interest rate set at the time of issuance equal to the then-current yield on the U.S. 5-year Treasury note plus 300 basis points. The notes will be pre-payable at any time at Atlas’ option.

Notes Alternative

As noted above under the section entitled “Exchange Agreement,” Brookfield may also elect an alternative notes structure, in which case the OCGH limited partners participating in such exchange will receive equity interests in an OCGH subsidiary. If Brookfield elects the alternative notes structure, OCGH will contribute Oaktree operating group units to a special purpose series limited partnership (“ExchangeCo”) in exchange for common equity interests in ExchangeCo. ExchangeCo will then contribute such Oaktree operating group units to a newly created special purpose entity in exchange for a note issued by such special purpose entity. OCGH will deliver the common equity interests in ExchangeCo to the OCGH limited partners participating in the exchange. The issued notes will mature three years from the date of issuance and, subject to certain exceptions, bear interest payable on a quarterly basis, at a fixed interest rate set at the time of issuance equal to the then-current yield on the U.S. 5-year Treasury note plus 300 basis points, and generally contain terms customary for privately placed investment grade notes, subject to agreed upon modifications reflecting the applicable corporate structure.



 

15


Table of Contents

The A&R Operating Agreement (See page 161)

Under the merger agreement, Oaktree and Brookfield agreed to amend and restate the Oaktree operating agreement, effective as of the effective time, to provide for, among other things, certain governance rights to be held by OCGH and Brookfield or one of its subsidiaries following the closing. The A&R operating agreement will include certain governance provisions that will be applicable during the initial period and other provisions that will be applicable thereafter. For more information on the A&R operating agreement, see the section entitled “The A&R Operating Agreement” beginning on page 161 of this consent solicitation statement/prospectus.

The TRA Amendment (See page 165)

Under the merger agreement, Oaktree and Brookfield agreed to cooperate with each other and to use their reasonable best efforts to negotiate and agree upon the form of the TRA Amendment, which form shall provide that (i) the TRA will continue to apply in accordance with the TRA Amendment to exchanges of OCGH units effected prior to March 13, 2019, and (ii) the TRA will no longer apply to any exchanges of OCGH units that occur on or after March 13, 2019, provided that the limited partners of OCGH will be entitled to certain additional payments. For more information on the TRA Amendment, see the section entitled “TRA Amendment” beginning on page 165 of this consent solicitation statement/prospectus.

Listing of Brookfield Class A Shares and Delisting and Deregistration of Oaktree Class A Units (See page 104)

Under the terms of the merger agreement, Brookfield is required to cause the Brookfield class A shares to be issued in connection with the mergers to be authorized for listing on the NYSE prior to the effective time. Accordingly, application will be made to have the Brookfield class A shares to be issued in connection with the mergers authorized for listing on NYSE, where Brookfield class A shares are currently traded under the symbol “BAM”.

If the mergers are completed, there will no longer be any publicly held Oaktree class A units. Accordingly, Oaktree class A units will no longer be listed on the NYSE and will be deregistered under the Exchange Act. Under the terms of the merger agreement, Oaktree is required to cooperate with Brookfield and take all actions reasonably required to cause the Oaktree class A units to be de-listed from the NYSE and de-registered under the Exchange Act as soon as practicable following the effective time.

No Appraisal Rights (See page 101)

In accordance with the Oaktree operating agreement and Delaware law, Oaktree unitholders are not entitled to any appraisal rights in connection with the mergers.

Material U.S. Federal Income Tax Consequences (See page 166)

The exchange of Oaktree class A units for the merger consideration in the initial merger will be a taxable transaction for U.S. federal income tax purposes.

Each Oaktree class A unitholder is urged to read the discussion in the section entitled “Material U.S. Federal Income Tax Consequences” beginning on page 166 of this consent solicitation statement/prospectus and to consult its tax advisor to determine the particular U.S. federal, state or local or non-U.S. income or other tax consequences to it of the initial merger.



 

16


Table of Contents

Material Canadian Federal Income Tax Consequences (See page 174)

Generally, a Non-Canadian holder (as defined in the section entitled “Material Canadian Federal Income Tax Considerations” of this consent solicitation statement/prospectus) of Brookfield class A shares:

 

   

will be subject to Canadian withholding tax on dividends paid or credited or deemed to be paid or credited by Brookfield on the Brookfield class A shares at the rate of 25%, subject to any reduction in the rate of withholding to which the Non-Canadian holder is entitled under any applicable income tax convention between Canada and the country in which the Non-Canadian holder is resident; and

 

   

will not be subject to tax under the Income Tax Act (Canada), referred to as the “Tax Act,” on any capital gain realized on a disposition or deemed disposition of a Brookfield class A share, unless the Brookfield class A share constitutes “taxable Canadian property” of the Non-Canadian holder for purposes of the Tax Act at the time of the disposition or deemed disposition and the Non-Canadian holder is not entitled to relief under an applicable income tax convention between Canada and the country in which the Non-Canadian holder is resident.

The foregoing summary of Canadian federal income tax consequences is qualified in its entirety by the longer discussion under the section entitled “Material Canadian Federal Income Tax Considerations” beginning on page 174 of this consent solicitation statement/prospectus.

Accounting Treatment of the Mergers (See page 104)

Brookfield prepares its consolidated financial statements in accordance with IFRS.

Brookfield is currently evaluating the accounting of the mergers, which is expected to result in Brookfield recognizing its interest in Oaktree under the equity method of accounting in accordance with IAS 28, Investments in Associates and Joint Ventures, effective on the closing date. Accordingly, it is Brookfield’s preliminary view that it will initially recognize its investment at cost and will adjust thereafter for the post-acquisition change in Brookfield’s share of Oaktree’s net assets. Brookfield’s profit or loss and other comprehensive income will also include its share of Oaktree’s profit or loss and other comprehensive income.

Any Brookfield class A shares issued in connection with the mergers, and any income or loss allocable to such holders following the mergers, will be reflected within common equity and net income attributable to shareholders in Brookfield’s consolidated balance sheet and consolidated statement of operations, respectively.

Comparison of Unitholders’ and Shareholders’ Rights (See page 181)

Oaktree unitholders receiving Brookfield class A shares in the mergers will have different rights once they become Brookfield shareholders due to differences between the governing statutes and organizational documents of Brookfield and Oaktree. These differences are described in detail under “Comparison of Unitholders’ and Shareholders’ Rights” beginning on page 181 of this consent solicitation statement/prospectus.



 

17


Table of Contents

QUESTIONS AND ANSWERS

The following questions and answers are intended to address briefly some commonly asked questions regarding the mergers, the merger agreement and certain procedures for Oaktree unitholders to deliver their written consents. These questions and answers may not address all questions that may be important to Oaktree unitholders. To better understand these matters, and for a more complete description of the terms of the merger agreement, the mergers and the other transactions contemplated thereby including certain risks relating to the mergers and Oaktree following the mergers, and other matters related to the Oaktree written consent, you should carefully read this consent solicitation statement/prospectus, including each of the attached annexes, as well as the documents that have been incorporated by reference into this consent solicitation statement/prospectus. See the section entitled “Where You Can Find More Information” beginning on page 219 of this consent solicitation statement/prospectus.

 

Q:

Why am I receiving this consent solicitation statement/prospectus?

 

A:

You are receiving this consent solicitation statement/prospectus because Brookfield has agreed to acquire all of the issued and outstanding Oaktree class A units. On March 13, 2019, Brookfield and Oaktree entered into a merger agreement that is described in this consent solicitation statement/prospectus. A copy of the merger agreement is attached as Annex A to this consent solicitation statement/prospectus and is incorporated by reference into this consent solicitation statement/prospectus. Pursuant to the merger agreement, at the effective time of the initial merger, an indirect wholly-owned subsidiary of Brookfield will be merged with and into Oaktree and each Oaktree class A unit issued and outstanding immediately prior to the effective time of the initial merger (other than Oaktree excluded units) will be converted into the right to receive, at the election of such unitholder, (A) the cash consideration of $49.00 or (B) the share consideration of 1.0770 Brookfield class A shares, in each case, without interest and subject to any applicable withholding taxes. In the subsequent merger, SellerCo will merge with and into Seller MergerCo, with Seller MergerCo continuing as the surviving entity, and each SellerCo unit issued and outstanding immediately prior to the effective time of the subsequent merger, referred to as the “subsequent effective time”, will, at the election of its holder, be converted into the right to receive either the cash consideration or the share consideration. Share elections and cash elections are subject to the proration adjustment procedures described in this consent solicitation statement/prospectus to ensure that the aggregate merger consideration will be divided evenly with 50% of the combined outstanding Oaktree class A units and SellerCo units receiving cash consideration and 50% of the combined outstanding Oaktree class A units and SellerCo units receiving share consideration, such that the aggregate merger consideration paid by Brookfield will be 50% cash consideration and 50% share consideration.

To complete the mergers, Oaktree unitholders must approve the merger proposal. Oaktree is soliciting the written consent of its unitholders to approve the merger proposal and, on a non-binding, advisory basis, the compensation proposal.

 

Q:

What will happen in the mergers?

 

A:

As a result of the mergers, each Oaktree class A unit issued and outstanding immediately prior to the effective time (other than Oaktree excluded units), and each SellerCo unit issued and outstanding immediately prior to the subsequent effective time will, in each case, be converted into the right to receive and become exchangeable for the merger consideration. After completion of the mergers, Oaktree will no longer have any public common equity interests, and the Oaktree class A units will be delisted from the NYSE and will cease to be publicly traded. The mergers will have no effect on any outstanding Oaktree class B units or any Oaktree preferred units, each of which will remain outstanding immediately after the completion of the mergers. See the section entitled “The Merger Agreement—Structure of the Mergers and Post-Closing Restructuring Steps” beginning on page 130 of this consent solicitation statement/prospectus and the merger agreement attached as Annex A to this consent solicitation statement/prospectus for more information about the mergers.

 

18


Table of Contents
Q:

What will Oaktree class A unitholders and SellerCo unitholders receive in the mergers?

 

A:

At the effective time, each Oaktree class A unit (other than Oaktree excluded units) will be converted into the right to receive and become exchangeable, at the election of the holder, for either: (1) 1.0770 fully paid and nonassessable Brookfield class A shares; or (2) $49.00 in cash, without interest, subject to any applicable withholding taxes. At the subsequent effective time, each SellerCo unit will be converted into the right to receive and become exchangeable for either: (1) 1.0770 fully paid and nonassessable Brookfield class A shares; or (2) $49.00 in cash, without interest and subject to any applicable withholding taxes. No fractional shares will be issued in the mergers, and Oaktree and SellerCo unitholders will each receive cash in lieu of any fractional shares.

Share elections and cash elections are subject to the proration adjustment procedures described in this consent solicitation statement/prospectus to ensure that the aggregate merger consideration will be divided evenly with 50% of the combined outstanding Oaktree class A units and SellerCo units receiving cash consideration and 50% of the combined outstanding Oaktree class A units and SellerCo units receiving share consideration, such that the aggregate merger consideration paid by Brookfield will be 50% cash consideration and 50% share consideration. A discussion of the proration mechanism can be found under the heading “The Merger Agreement—Election Procedures & Proration Adjustments” beginning on page 133 of this consent solicitation statement/prospectus.

On March 12, 2019, which was the last full trading day before the public announcement of the mergers, the closing price of a Brookfield class A share was $45.99, which after giving effect to the 1.0770 exchange ratio, has an implied value of approximately $49.53 per unit. Based on this price and the cash consideration of $49.00, which represents a premium of approximately 11.8% over Oaktree’s closing unit price on March 12, 2019, upon completion of the mergers, an Oaktree unitholder or SellerCo unitholder who receives cash consideration for 50% and share consideration for 50% for his, her, or its Oaktree class A units or SellerCo units would receive total consideration with an implied value of approximately $49.27 per unit, which represents a premium of approximately 12.4% over Oaktree’s closing unit price on March 12, 2019. On June 18, 2019, the most recent practicable date prior to the date of this consent solicitation statement/prospectus, the closing price of a Brookfield class A share was $47.98, which after giving effect to the 1.0770 exchange ratio, has an implied value of approximately $51.67 per unit. Based on this price and the cash consideration of $49.00, upon completion of the mergers, an Oaktree unitholder or SellerCo unitholder who receives cash consideration for 50% and share consideration for 50% for his, her, or its Oaktree class A units or SellerCo units would receive total consideration with an implied value of approximately $50.34 per unit. Because Brookfield will issue a fixed number of Brookfield class A shares in the mergers in exchange for each Oaktree class A unit and each SellerCo unit, the value of the merger consideration that Oaktree and SellerCo unitholders will receive in the mergers will depend on the market price of Brookfield class A shares at the effective time of the mergers. As a result, the value of the merger consideration that Oaktree and SellerCo unitholders will receive in the mergers could be greater than, less than or the same as the value of the merger consideration on the date of this consent solicitation statement/prospectus.

 

Q:

How do I make an election to receive cash or share consideration?

 

A:

Holders of Oaktree class A units and SellerCo units will be able to exercise their right to make an election for cash consideration or share consideration during a period of at least twenty calendar days, referred to as the “election period.” Brookfield and Oaktree will jointly announce the commencement of the election period. The election period will end at 5:00 p.m., New York City time, on the date that is three business days prior to the closing date, referred to as the “election deadline.” At least five business days prior to the election deadline, Brookfield and Oaktree will announce the exact date of the election deadline.

Any registered holder of Oaktree class A units or SellerCo units may make an election up until the election deadline. To be effective, a form of election must be properly completed, signed and submitted to the exchange agent by the election deadline. Brookfield and Oaktree will mail the form of election to registered holders of Oaktree class A units and SellerCo units in order to enable the holder thereof to exercise his, her

 

19


Table of Contents

or its right to make an election. In addition, the exchange agent will make the form of election available to any person that becomes a registered holder of Oaktree class A units or SellerCo units after the initial mailing of the form of election and prior to the election deadline.

Holders who fail to make an election or who make an untimely election (or who otherwise are deemed not to have submitted an effective form of election), referred to as “non-electing holders,” will be deemed to have elected (i) cash consideration with respect to 50% of such holder’s Oaktree class A units and SellerCo units (rounded up to the nearest whole unit) and (ii) share consideration with respect to the other 50% of such holder’s Oaktree class A units and SellerCo units (rounded down to the nearest whole unit).

After an election is validly made, any subsequent transfer of units will automatically revoke such election. The transferee will have until the election deadline to submit a new election with respect to such transferred units. Any holder entitled to make an election of merger consideration may, at any time prior to the election deadline, revoke such election by written notice received by the exchange agent prior to the election deadline accompanied by a properly completed and signed revised form of election. Any holder who has validly revoked his, her or its merger consideration election and has not properly submitted a new duly completed form of election will be deemed to be a non-electing holder.

If you hold your shares in “street name” through a bank, broker or other holder of record, you should receive instructions from your bank, broker or other holder of record with instructions on how to instruct your bank, broker or other holder of record with regard to your election. You should instruct your bank, broker or other holder of record what election to make on your behalf by carefully following the instructions that you will receive from your bank, broker or other holder of record. Your bank, broker or other holder of record may establish a deadline earlier than the election deadline for making your election. Please contact your bank, broker or other holder of record with any questions regarding your election.

The exchange agent will determine, in its reasonable discretion, whether any election is not properly made, changed or revoked with respect to any Oaktree class A units or SellerCo units.

For more information regarding the election deadline, see the section entitled “The Merger Agreement—Election Procedures & Proration Adjustments” beginning on page 133 of this consent solicitation statement/prospectus.

 

Q:

What happens if the mergers are not completed?

 

A:

If the mergers are not completed for any reason, neither holders of Oaktree class A units nor holders of SellerCo units will receive any merger consideration for their units, and Oaktree class A units will continue to be traded on the NYSE. If the merger agreement is terminated under specified circumstances, Oaktree may be required to pay Brookfield a termination fee of $225 million. See the sections entitled “The Merger Agreement—Expenses” and “—Termination Fee” beginning on page 151, of this consent solicitation statement/prospectus and the merger agreement attached as Annex A to this consent solicitation statement/prospectus for more information.

 

Q:

If I am an Oaktree class A unitholder or will be a SellerCo unitholder, how will I receive the merger consideration to which I became entitled?

 

A:

Holders of Oaktree class A units or SellerCo units in book-entry form will not be required to take any specific action to receive the merger consideration. After the effective time of the initial merger, units held in book-entry form will be automatically exchanged for the merger consideration. For more information about the exchange of Oaktree units and SellerCo units for Brookfield class A shares and cash, see the section entitled “The Merger Agreement—Conversion of Units, Exchange of Certificates, Withholding and Dividends and Distributions” beginning on page 132 of this consent solicitation statement/prospectus.

 

 

20


Table of Contents
Q:

What are Oaktree unitholders being asked to approve?

 

A:

Oaktree’s unitholders are being asked to deliver written consents to approve:

 

   

the merger proposal; and

 

   

the compensation proposal.

The approval of the merger proposal by Oaktree unitholders is required to complete the mergers.

 

Q:

Who is entitled to deliver written consents to approve the merger proposal and the compensation proposal?

 

A:

Only Oaktree unitholders of record as of the close of business on the record date, which is June 17, 2019, will be entitled to receive this consent solicitation statement/prospectus and be entitled to sign and return a written consent. As of the close of business on the record date, there were 75,649,487 Oaktree class A units outstanding and 84,001,461 Oaktree class B units outstanding. Under the Oaktree operating agreement, each Oaktree class A unit entitles the holder thereof as of the relevant record date to one vote on each matter submitted to a vote or to be acted on by written consent of Oaktree unitholders, and each Oaktree class B unit entitles the holder thereof as of the relevant record date to 10 votes on each matter submitted to a vote or to be acted on by written consent of Oaktree unitholders.

 

Q:

Are there any important risks related to the mergers or Brookfield’s or Oaktree’s businesses of which I should be aware?

 

A:

Yes, there are important risks related to the mergers and Brookfield’s and Oaktree’s businesses. Before making any decision on whether to provide a written consent, Brookfield and Oaktree urge you to read carefully and in its entirety the section entitled “Risk Factors” beginning on page 112 of this consent solicitation statement/prospectus. You also should read and carefully consider the risk factors relating to Brookfield and Oaktree contained in the documents that are incorporated by reference into this consent solicitation statement/prospectus, including Brookfield’s Annual Report on Form 40-F for the fiscal year ended December 31, 2018 and Oaktree’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018, as updated from time to time in each company’s subsequent filings with the SEC.

 

Q:

What is the recommendation of the Oaktree board?

 

A:

After consideration and consultation with its advisors, and acting upon the recommendation of the special committee, at a special meeting held on March 13, 2019, the Oaktree board unanimously determined that it was advisable, fair to, and in the best interests of Oaktree and its unitholders that Oaktree enter into the merger agreement, adopted, approved and declared advisable the merger agreement, the other transaction agreements and the transactions contemplated by those agreements, including the mergers, and recommended that the Oaktree unitholders adopt the merger agreement and approve the mergers and the other contemplated transactions.

The Oaktree board recommends that Oaktree unitholders “CONSENT” to the merger proposal and “CONSENT” to the compensation proposal. See the section entitled “Special Factors—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers” beginning on page 52 of this consent solicitation statement/prospectus.

In considering the recommendation of the Oaktree board that Oaktree unitholders “CONSENT” to the merger proposal and “CONSENT” to the compensation proposal, Oaktree unitholders should take into account the fact that certain Oaktree directors and executive officers have interests in the mergers that may be different from, or in addition to, the interests of Oaktree unitholders generally. See the section entitled “Special Factors—Interests of Oaktree Directors and Executive Officers in the Mergers” beginning on page 97 of this consent solicitation statement/prospectus.

 

21


Table of Contents
Q:

What Oaktree unitholder approval is required to approve the merger proposal and the compensation proposal?

 

A:

Approval of the merger proposal and, on a non-binding, advisory basis, the compensation proposal each requires the consent of the holders of a majority of the voting power of Oaktree class A units and Oaktree class B units, voting together as a single class, and entitled to vote thereon. Abstentions and broker non-votes, if any, and the failure to execute and return a consent, will have the same effect as consents marked “WITHHOLD CONSENT” as to such proposals. A “broker non-vote” occurs on an item when a nominee or intermediary is not permitted to vote on that item without instructions from the beneficial owner of the shares and the beneficial owner fails to provide the nominee or intermediary with such instructions.

OCGH owns Oaktree class A units and Oaktree class B units having the right to vote approximately 91.7397% of the voting power of the Oaktree units issued and outstanding as of the close of business on the record date. Concurrently with the execution of the merger agreement, OCGH executed and delivered the support agreement with Brookfield under which OCGH agreed to deliver to Oaktree a written consent in favor of the merger proposal in respect of all Oaktree units beneficially owned by it (representing in the aggregate more than a majority of the aggregate voting power of the Oaktree units issued and outstanding and entitled to vote on the merger proposal and the compensation proposal), unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement. The support agreement provides that OCGH will deliver its written consent promptly following the time at which the registration statement of which this consent solicitation statement/prospectus forms a part becomes effective under the Securities Act and receipt by OCGH of this consent solicitation statement/prospectus (and, in any event, within 5 business days after such time). The delivery of such written consent by OCGH will, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, constitute the approval of the merger proposal by the requisite majority of the voting power of all outstanding Oaktree units entitled to vote thereon. Notwithstanding the foregoing, in the event that the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, OCGH’s voting obligations will be modified so that its obligations to vote in favor of the merger proposal are with respect to (and OCGH cannot vote in excess of) (i) the number of Oaktree units representing 25% of the aggregate voting power of the issued and outstanding Oaktree units plus (ii) the number of Oaktree units the aggregate voting power of which, as a percentage of the aggregate voting power of all outstanding Oaktree units not covered by the preceding clause (i), is equal to the “proportionate percentage”. In this consent solicitation statement/prospectus, proportionate percentage means the percentage of aggregate voting power with respect to all outstanding Oaktree units held by Oaktree unitholders other than OCGH, voting as a single class (taking into account that each holder of the Oaktree class A units is entitled to one vote per unit and each holder of Oaktree class B units is entitled to 10 votes per unit), voting in favor of approving the merger proposal. For more information on the support agreement, see the section entitled “The Support Agreement” beginning on page 153 of this consent solicitation statement/prospectus.

 

Q:

Do Oaktree’s directors and executive officers have interests that may differ from those of other Oaktree unitholders?

 

A:

Yes. In considering the recommendation of the Oaktree board that Oaktree unitholders “CONSENT” to the merger proposal, Oaktree unitholders should take into account the fact that certain Oaktree directors and executive officers have interests in the mergers that may be different from, or in addition to, the interests of Oaktree unitholders generally and that may create potential conflicts of interest. The Oaktree board and special committee was aware of and considered these interests, among other matters, in evaluating the terms and structure, and overseeing the negotiation of, the mergers, in approving the merger agreement and in recommending that Oaktree unitholders “CONSENT” to the merger proposal. See the section entitled “Special Factors—Interests of Oaktree Directors and Executive Officers in the Mergers” beginning on page 97 of this consent solicitation statement/prospectus.

 

22


Table of Contents
Q:

How do I return my Oaktree written consent?

 

A:

If you are an Oaktree unitholder as of the close of business on the record date, and after carefully reading and considering the information contained in this consent solicitation statement/prospectus, you wish to return your written consent, please complete, date and sign the enclosed written consent and promptly return it to Oaktree at the address below, or email a .pdf copy of your signed and dated written consent to Oaktree to the email address below.

 

   

By Mail. If you choose to submit your written consent by mail, simply complete the enclosed written consent, date and sign it, and return it to Oaktree’s consent solicitor, Morrow Sodali LLC, at 470 West Avenue, 3rd Floor, Stamford, CT 06902.

 

   

By Email. If you choose to submit your written consent by email, once you have completed, dated and signed the written consent, you may deliver it to Oaktree by emailing a .pdf copy of your written consent to Oaktree’s consent solicitor at oak.info@morrowsodali.com.

If you are a beneficial owner and hold your Oaktree units in street name, or through a nominee or intermediary, such as a bank or broker, you will receive separate instructions from such nominee or intermediary describing how to submit your written consent. Please check with your nominee or intermediary and follow the consent instructions provided by your nominee or intermediary with these materials. Oaktree does not currently intend to hold a meeting of Oaktree unitholders to consider the merger agreement and the mergers. However, in the event that the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement and Brookfield does not terminate the merger agreement, either Oaktree or Brookfield has the right under the merger agreement to request that Oaktree call, give notice of, convene and hold such a meeting. See the section entitled “The Merger Agreement—Oaktree Written Consent; Oaktree Unitholder Meeting” beginning on page 141 of this consent solicitation statement/prospectus.

 

Q:

If my Oaktree units are held in street name, will my nominee or intermediary consent for me?

 

A:

No. If your Oaktree units are held in street name, you must instruct your nominee or intermediary whether you consent to, withhold consent from or abstain from any particular proposal. You should follow the instructions provided by your nominee or intermediary.

 

Q:

What will happen if I return my written consent without indicating whether or not I wish to consent?

 

A:

If you return your signed and dated written consent without indicating whether you consent to, withhold consent from or abstain from any particular proposal, you will be deemed to have elected to “CONSENT” to such proposal in accordance with the recommendation of the Oaktree board.

 

Q:

Can I change or revoke my written consent?

 

A:

Yes. You may change or revoke your written consent, at any time, before the earlier to occur of the receipt of the Oaktree member approval and the consent deadline. This consent solicitation statement/prospectus will be distributed to Oaktree unitholders at least 20 business days before the consents are used to effectuate the transactions contemplated by the merger agreement (i.e. at least 20 business days before the closing date). Unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, the delivery of OCGH’s written consent with respect to all of its Oaktree units following the effective time of and receipt by OCGH of this consent solicitation statement/prospectus will constitute receipt by Oaktree of the Oaktree member approval, regardless of the delivery or abstention of consent by any other Oaktree unitholder. If you wish to change or revoke your written consent before the earlier to occur of the receipt by Oaktree of the Oaktree member approval and the consent deadline, you may do so by sending in a new written consent with a later date or by delivering a notice of revocation to Oaktree’s consent solicitor, Morrow Sodali LLC, at 470 West Avenue, 3rd Floor, Stamford, CT 06902.

 

23


Table of Contents
Q:

What is the deadline for submission of written consents by Oaktree unitholders?

 

A:

Oaktree has set July 23, 2019 as the consent deadline. This consent solicitation statement/prospectus will be distributed to Oaktree unitholders at least 20 business days before the consents are used to effectuate the transactions contemplated by the merger agreement (i.e. at least 20 business days before the closing date). Under the support agreement, OCGH agreed to deliver to Oaktree a written consent in favor of the approval of the merger proposal in respect of all Oaktree units beneficially owned by OCGH (representing in the aggregate more than a majority of the voting power of all outstanding Oaktree units entitled to vote on the merger proposal and the compensation proposal), unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement. The support agreement provides that OCGH will deliver its written consent promptly following the time at which the registration statement of which this consent solicitation statement/prospectus forms a part becomes effective under the Securities Act and receipt by OCGH of this consent solicitation statement/prospectus (and, in any event, within 5 business days after such time). The delivery of such written consent by OCGH will, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, constitute the approval of the merger proposal and the compensation proposal by the requisite majority of the voting power of all outstanding Oaktree units entitled to vote thereon. Therefore, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, a failure of any other Oaktree unitholder to deliver a written consent is not expected to have any effect on the approval of the merger proposal or, on a non-binding, advisory basis, the compensation proposal.

 

Q:

Unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, the delivery of OCGH’s written consent will constitute approval of the merger proposal by the requisite majority of the voting power of all outstanding Oaktree units entitled to vote thereon. Given that, why is Oaktree seeking consents from all its unitholders?

 

A:

Under applicable SEC guidance, a company may seek a commitment from principal security holders of a target to vote in favor of a business combination transaction and register the securities to be offered and sold in the transaction if, among other things, votes will also be solicited from target equityholders who have not entered such commitments.

Concurrently with the execution of the merger agreement, OCGH executed and delivered the support agreement with Brookfield under which it agreed to deliver to Oaktree a written consent in favor of the approval of the merger proposal in respect of all Oaktree units beneficially owned by it (representing in the aggregate more than a majority of the voting power of all outstanding Oaktree units entitled to vote on the merger proposal and the compensation proposal), unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement. Because the principal security holder of Oaktree has agreed to deliver a written consent in favor of the merger, Oaktree is seeking written consents from all of its unitholders in accordance with the applicable SEC guidance. Nevertheless, unless the Oaktree board or special committee effects an adverse recommendation change in accordance with the merger agreement, the delivery of OCGH’s written consent will constitute receipt by Oaktree of the Oaktree member approval, regardless of the delivery or abstention of consent by any other Oaktree unitholder.

 

Q:

What happens if I transfer my Oaktree class A units before the written consent process concludes?

 

A:

The record date is earlier than the date on which the written consent process concludes and the date that the mergers are expected to be completed. If you transfer your Oaktree class A units after the record date but before the written consent process concludes, you will retain your right to consent with respect to the merger proposal and, on a non-binding, advisory basis, the compensation proposal. However, if you transfer your Oaktree class A units before the written consent process concludes or at any other point prior to completion of the mergers, you will not receive the merger consideration for the Oaktree class A units you have transferred.

 

24


Table of Contents
Q:

What do I do if I receive more than one set of consent solicitation materials?

 

A:

You may receive more than one set of consent solicitation materials, including multiple copies of this consent solicitation statement/prospectus or the consent solicitation materials. This can occur if you hold your Oaktree class A units in more than one brokerage account, if you hold Oaktree class A units directly as a holder of record and also in street name, or otherwise through another holder of record, and in certain other circumstances. If you receive more than one set of consent solicitation materials, please return each set separately in order to ensure that written consents in respect of all of your Oaktree units are delivered.

 

Q:

What is householding and how does it affect me?

 

A:

The SEC permits companies and intermediaries such as brokers to send a single set of proxy or written consent materials to any household at which two or more Oaktree unitholders reside, unless contrary instructions have been received, but only if the applicable unitholders provide advance notice and follow certain procedures. In such cases, each unitholder continues to receive a separate set of proxy materials. Certain brokerage firms may have instituted householding for beneficial owners of Oaktree units held through brokerage firms. If your family has multiple accounts holding Oaktree units, you may have already received a householding notification from your broker. Please contact your broker directly if you have any questions or require additional copies of this consent solicitation statement/prospectus. The broker will arrange for delivery of a separate copy of this consent solicitation statement/prospectus promptly upon your written or oral request. You may decide at any time to revoke your decision to household, and thereby receive multiple copies.

 

Q:

Are Oaktree unitholders entitled to seek appraisal rights if they do not “CONSENT” to the merger agreement?

 

A:

No. In accordance with the Oaktree operating agreement and Delaware law, Oaktree unitholders are not entitled to any appraisal rights in connection with the mergers.

 

Q:

What are the conditions to the completion of the mergers?

 

A:

Completion of the mergers is subject to certain closing conditions, including, but not limited to, the (1) adoption of the merger agreement by holders of Oaktree class A units and Oaktree class B units, voting together as a single class, representing a majority of the voting interests in Oaktree and entitled to vote thereon; (2) receipt of required regulatory approvals; (3) completion of the OCGH exchange, (4) investment advisory clients representing at least 82.5% of the aggregate annualized investment advisory or similar fees of all Oaktree investment advisory clients (based upon assets under management as of February 28, 2019) will have not objected to the transactions, and (5) satisfaction (or to the extent permitted by applicable law, waiver) of other conditions to closing. See the section entitled “The Merger Agreement—Conditions to Completion of the Mergers” beginning on page 147 of this consent solicitation statement/prospectus for more information.

 

Q:

When are the mergers expected to be completed?

 

A:

As of the date of this consent solicitation statement/prospectus, it is not possible to accurately estimate the closing date for the mergers because the mergers are subject to the satisfaction (or, to the extent permitted by applicable law, waiver) of the conditions to Brookfield’s and Oaktree’s obligations to complete the mergers; however, Brookfield and Oaktree currently expect the mergers to close during the third quarter of 2019. Due to the requirement to obtain certain governmental approvals and other conditions necessary to complete the mergers, no assurance can be given as to when, or if, the mergers will be completed.

 

25


Table of Contents
Q:

What will happen to outstanding Oaktree restricted units in the initial merger?

 

A:

Immediately prior to the effective time, each Oaktree restricted unit will be automatically converted into a common unit of OCGH having the same terms and conditions (including vesting) that applied to the applicable Oaktree restricted unit from which such common unit was converted, except as otherwise modified by the organizational documents of OCGH.

 

Q:

If I am an Oaktree unitholder, do I need to do anything at this time with my Oaktree units other than delivering my written consent?

 

A:

If you are an Oaktree class A unitholder, you will be entitled to receive the merger consideration for your Oaktree class A units after the effective time of the initial merger (assuming that you still own such units at the time of the initial merger). The only action you are requested to take at this time is to affirmatively “CONSENT” to the merger proposal and “CONSENT” to the compensation proposal in accordance with the method of written consent set forth in “Oaktree Solicitation of Written Consents” beginning on page 126 of this consent solicitation statement/prospectus.

 

Q:

Should I do anything at this time with my Oaktree class A units held in book-entry form to receive the merger consideration?

 

A:

No. If you are a holder of Oaktree class A units in book-entry form, you will not be required to take any specific action to receive the merger consideration. After the effective time of the initial merger, Oaktree class A units held in book-entry form will be automatically exchanged for the merger consideration. See the section entitled “The Merger Agreement—Conversion of Units, Exchange of Certificates, Withholding and Dividends and Distributions” beginning on page 132 of this consent solicitation statement/prospectus.

 

Q:

How will the mergers be financed?

 

A:

Brookfield estimates that the total amount of funds required to complete the transactions and pay related fees and expenses will be approximately $2.4 billion. Brookfield expects this amount to be funded through cash on hand and available liquidity.

 

Q:

Is the completion of the mergers subject to a financing condition?

 

A:

No. The receipt of financing by Brookfield is not a condition to completion of the mergers or any of the other transactions contemplated by the merger agreement.

 

Q:

Will the Brookfield class A shares issued in the mergers be traded on an exchange?

 

A:

Yes. It is a condition to completion of the mergers that the Brookfield class A shares to be issued in the mergers be approved for listing on the NYSE, subject to official notice of issuance, under the symbol “BAM.”

 

Q:

If I am an Oaktree unitholder, whom should I call with questions?

 

A:

If you have any questions about the mergers or the Oaktree consent solicitation materials, or desire additional copies of this consent solicitation statement/prospectus, you should contact:

Morrow Sodali LLC

470 West Avenue—3rd Floor

Stamford, CT 06902

Toll Free: (800) 662-5200

Email: oak.info@morrowsodali.com

 

26


Table of Contents

or

Oaktree Capital Group, LLC

333 South Grand Avenue, 28th Floor

Los Angeles, CA 90071

Attention: Investor Relations

Telephone: (213) 830-6300

 

Q:

Where can I find more information about Brookfield and Oaktree?

 

A:

You can find more information about Brookfield and Oaktree from the various sources described under “Where You Can Find More Information” beginning on page 219 of this consent solicitation statement/prospectus.

 

27


Table of Contents

SPECIAL FACTORS

This section of the consent solicitation statement/prospectus describes the material aspects of the mergers and certain special factors concerning the mergers of which you should be aware. This section may not contain all of the information that is important to you. You should carefully read this entire consent solicitation statement/prospectus and the documents incorporated herein by reference, including the full text of the merger agreement (which is attached as Annex A), for a more complete understanding of the mergers. In addition, important business and financial information about each of Brookfield and Oaktree is included in or incorporated into this consent solicitation statement/prospectus by reference. See the section entitled “Where You Can Find More Information” beginning on page 219 of this consent solicitation statement/prospectus.

Effects of the Mergers

The transactions will occur as follows:

 

   

Prior to the closing, OCGH unitholders will participate in the OCGH exchange, whereby OCGH unitholders will contribute all (in the case of institutional holders) or a portion (in the case of non-institutional holders) of their OCGH units to SellerCo, in exchange for the receipt of an equivalent number of SellerCo units. SellerCo is a wholly-owned subsidiary of OCGH that was formed for the sole purpose of facilitating the subsequent merger and the OCGH exchange.

 

   

In the initial merger, Merger Sub, an indirect wholly-owned subsidiary of Brookfield that was formed for the sole purpose of effecting the initial merger, will be merged with and into Oaktree. Oaktree will be the surviving company in the initial merger and will no longer have publicly-traded common equity. At the effective time of the initial merger, each outstanding Oaktree class A unit will be converted into the right to receive and become exchangeable for the merger consideration, with cash paid in lieu of fractional shares, and each restricted unit will be converted into an unvested OCGH unit.

 

   

Immediately following the effective time of the initial merger, SellerCo will be merged with and into Seller MergerCo, a wholly-owned subsidiary of Oaktree that was formed for the sole purpose of facilitating the subsequent merger and the OCGH exchange. Seller MergerCo will be the surviving company in the subsequent merger and will, by operation of law, after the subsequent effective time own all of the OCGH units received by SellerCo in the OCGH exchange. At the subsequent effective time, each outstanding SellerCo unit received in the OCGH exchange will be converted into the right to receive and become exchangeable for the merger consideration, with cash paid in lieu of fractional shares.

 

   

Following the subsequent merger, Seller MergerCo will liquidate, thereby distributing the OCGH units it received in the subsequent merger to the intermediate holdcos. Following the liquidation of Seller MergerCo, OCGH will redeem the OCGH units received by the intermediate holdcos as a result of the liquidation of Seller MergerCo in exchange for Oaktree operating group units. As a result of the post-closing restructuring steps following the subsequent merger, Brookfield will indirectly own a 62% economic interest in the Oaktree operating group and the OCGH unitholders, consisting of Messrs. Karsh and Marks and certain other members of Oaktree’s management and current and former employees, will indirectly own the remaining 38% economic interest in the Oaktree operating group through their ownership in OCGH.

 

28


Table of Contents
    Ownership of Oaktree Prior to the
Mergers
    Ownership of Oaktree After the
Mergers
 
    Economic %
Ownership at
March 31, 2019
    Net book
value at
March 31, 2019
    Net income
for the
3-months
ended
March 31, 2019
    Economic %
Ownership
    Net book
value at
March 31, 2019
    Net income
for the
3-months
ended
March 31, 2019
 
    (in thousands, except per unit amounts)  

OCGH

    0.02   $ 171     $ 8       —         —         —    

Oaktree GP(1)

    —         —         —         —         —         —    

SellerCo(2)

    —         —         —         —         —         —    

Bruce Karsh(3)

    0.13   $ 1,339     $ 64       —         —         —    

Howard Marks(3)

    0.13   $ 1,339     $ 64       —         —         —    

Brookfield

    0.34   $ 3,406     $ 162       100   $ 994,745     $ 47,254  

 

(1)

Oaktree GP has no economic interest in Oaktree, either directly in its capacity as managing member of Oaktree or indirectly in its capacity as non-economic general partner of OCGH.

(2)

Formed on March 8, 2019.

(3)

Excludes indirect economic ownership of Oaktree as a result of holding OCGH units.

 

    Ownership of Oaktree Operating Group Prior to
the Mergers
    Ownership of Oaktree Operating Group After
the Mergers
 
    Economic %
Ownership at
March 31, 2019
    Net book
value at
March 31, 2019
    Net income
for the

3-months
ended
March 31, 2019
    Economic %
Ownership
    Net book
value at
March 31, 2019
    Net income
for the
3-months
ended
March 31, 2019
 
    (in thousands, except per unit amounts)  

OCGH

    52.6   $ 1,051,945     $ 63,314       38.8   $ 775,399     $ 46,669  

Oaktree GP(1)

    —         —         —         —         —         —    

SellerCo(2)

    —         —         —         —         —         —    

Bruce Karsh

    9.8   $ 195,675     $ 11,777       7.8   $ 155,520     $ 9,360  

Howard Marks

    9.5   $ 189,856     $ 11,427       7.6   $ 150,864     $ 9,080  

Brookfield

    0.16   $ 3,244     $ 195       61.2   $ 1,223,993     $ 73,669  

 

(1)

Oaktree GP has no economic interest in the Oaktree Operating Group.

(2)

Formed on March 8, 2019.

Benefits and detriments to Oaktree unaffiliated unitholders

A primary benefit of the transactions, including the mergers, to each Oaktree unaffiliated unitholder will be the right of such holder to receive, through the initial merger, the merger consideration of either $49.00 per Oaktree class A unit or 1.0770 Brookfield class A shares in respect of each Oaktree class A unit held by them, with cash paid in lieu of fractional shares (in each case subject to proration to ensure that no more than fifty (50%) of the aggregate merger consideration is paid in the form of cash consideration or share consideration), without interest and less applicable withholding tax. The per-unit value of the Oaktree class A units implied by the cash consideration under the initial merger is $49.00, which represents a premium of approximately 11.8% to the closing price of the Oaktree class A units on March 12, 2019, the last full trading day before the public announcement of the mergers. The Oaktree unaffiliated unitholders who elect to receive a portion of the merger consideration in cash will realize immediate liquidity and certainty of value for a portion of their investment and not bear any risk of losses incurred in the operation of Oaktree’s or the Oaktree operating group’s businesses or of any decreases in the value of their businesses with respect to the cash consideration received in exchange for their Oaktree units. Oaktree unaffiliated unitholders who elect to receive the share consideration will have an opportunity to participate and share in any future earnings or growth of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group, or benefit from increases, if any, in the value of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group,

 

29


Table of Contents

following completion of the mergers, with respect to the share consideration received in exchange for their Oaktree units.

There are also a number of detriments of the transactions, including the mergers, to the Oaktree unaffiliated unitholders including, among others, uncertainty as to the value and form of the consideration to be paid in the mergers given that the Oaktree unaffiliated unitholders’ election with respect to the form of the merger consideration will, as a result of the proration mechanism, be unknown until after the election deadline. With respect to Oaktree unaffiliated unitholders receiving share consideration, additional detriments include the fact that, with respect to the share consideration received, (1) there will be no adjustment to the exchange ratio for changes in the market price of either Brookfield class A shares or Oaktree class A units, and thus the market value of the Brookfield class A shares being issued in the mergers will depend upon the market price of Brookfield class A shares, which market price may vary from the closing price of Brookfield class A shares on the date the mergers were publicly announced, on the date of this consent solicitation statement/prospectus and on the closing date, (2) Oaktree unaffiliated unitholders who receive the share consideration will only participate in Oaktree’s and the Oaktree operating group’s future earnings and potential growth through their ownership of Brookfield class A shares, and all of the other incidents of direct equity ownership in Oaktree, such as the right to receive distributions from Oaktree, will be extinguished upon completion of the mergers and (3) the businesses of Brookfield and Oaktree differ, and accordingly, the results of operations of the combined company and the market price of the Brookfield class A shares after the completion of the mergers may be affected by factors different from those currently affecting the independent results of operations and market prices of shares and units of each of Brookfield and Oaktree. With respect to Oaktree unaffiliated unitholders receiving cash consideration, additional detriments include the fact that, with respect to the cash consideration received, such unitholders will not participate in Oaktree’s future earnings and potential growth, including any future earnings and potential growth in the Oaktree operating group. In addition, the initial merger will be a taxable transaction for U.S. federal income tax purposes, regardless of the form of consideration. See the section entitled “Material U.S. Federal Income Tax Consequences” beginning on page 166 of this consent solicitation statement/prospectus.

Benefits and detriments to OCGH Filing Parties

In connection with the transactions, including the mergers, the OCGH filing parties will receive benefits and be subject to obligations that are different from, or in addition to, the benefits received by the Oaktree unaffiliated unitholders generally. The primary benefits of the transactions, including the mergers, to the OCGH filing parties will be to retain management control of Oaktree and the Oaktree operating group for, at a minimum, the initial period and have the option of obtaining gradual liquidity for their OCGH units over time. In addition, the multiples used in valuing OCGH units in the liquidity mechanism may be greater than those implied in the then-current trading price of Brookfield class A shares, in which case the OCGH filing parties will receive an increased relative value in respect of their indirect interest in the potential future earnings and growth of the Oaktree operating group which, if the Oaktree operating group successfully executes its business strategies, could be substantial.

The primary detriments of the transaction, including the mergers, to the individuals who are OCGH filing parties include the fact that, except in certain limited circumstances, the individuals who are OCGH filing parties will not be able to obtain any liquidity for their OCGH units (other than for the portion being sold at the closing and for former Oaktree units) until 2022, and will not be able to obtain liquidity for all of their OCGH units until 2026, or later. In addition, the individuals who are OCGH filing parties may not be able to benefit, and may incur losses, from the gradual liquidity of their OCGH units over time if the performance of the Oaktree operating group declines, in which case the value of the OCGH units exchanged under the liquidity mechanism may be less than the implied value of the Oaktree class A units in the mergers. The liquidity rights pursuant to the exchange agreement are described in more detail under the section entitled “Exchange Agreement” beginning on page 157 of this consent solicitation statement/prospectus.

 

30


Table of Contents

Background of the Mergers

As part of Oaktree’s ongoing focus on building long term value, the Oaktree board regularly reviews and assesses Oaktree’s long-term goals and opportunities, industry trends, competitive environment and short- and long-term performance, with the goal of maximizing unitholder value. The Oaktree board also discusses the price of Oaktree class A units and unitholder total returns, both on an absolute basis and relative to Oaktree’s peers. The Oaktree board also considers potential risks that Oaktree faces in execution, including challenging global economic conditions, potentially unfavorable investment environments in certain of Oaktree’s business areas, general market conditions and trends, the highly competitive environment, and other factors.

In 2003, in the client memo 2002 in Review, Oaktree’s Co-Chairman, Howard Marks, articulated a set of criteria against which Oaktree would assess a potential sale of an interest in Oaktree. Those criteria required a transaction that would provide (i) a prestigious affiliation that would bring resources to Oaktree, (ii) with a party willing to pay fair consideration for a non-controlling investment in Oaktree that would entail, (iii) no cessation of Oaktree’s existence as an autonomous entity, (iv) no diminution in Oaktree’s role in representing its own products to clients and (v) no reduction of Oaktree’s freedom to manage its accounts and its business.

On October 3, 2018, Bruce Flatt, the Chief Executive Officer of Brookfield, contacted Bruce Karsh, the Co-Chairman and Chief Investment Officer of Oaktree, to invite him to meet on October 18, 2018. Perella Weinberg Partners LP (which we refer to as “Perella Weinberg”), which was familiar with the businesses and operations of both Oaktree and Brookfield, facilitated the contact from Mr. Flatt to Mr. Karsh.

On October 18, 2018, Messrs. Flatt and Karsh met, at which time Mr. Flatt raised the possibility of Brookfield acquiring all of the outstanding Oaktree class A units at an implied value in excess of the then-current trading price of Oaktree class A units, thus permitting Brookfield to acquire an interest in the Oaktree operating group while allowing Oaktree to retain its existence as an autonomous entity.

Mr. Karsh concluded that the potential transaction proposed by Mr. Flatt at the October 18, 2018 meeting was potentially attractive for a variety of reasons consistent with the criteria outlined in the client memo 2002 in Review, including the fact that it would provide value to Oaktree class A unitholders in excess of the Oaktree class A units’ then-current trading value. Thereafter, on November 2, 2018, Messrs. Karsh, Marks and John Frank, Oaktree’s Vice Chairman, met with representatives of Perella Weinberg, which was subsequently formally engaged by Oaktree to act as its financial advisor with effect from November 2, 2018, to discuss Mr. Karsh’s meeting with Mr. Flatt and a potential transaction.

On November 5, 2018, Mr. Flatt and Justin Beber, a Managing Partner and the Head of Corporate Strategy and Chief Legal Officer of Brookfield, and representatives of Perella Weinberg, held a preliminary exploratory meeting at Brookfield’s offices in New York, New York, to discuss the general parameters of a potential transaction between Brookfield and Oaktree, including the post-closing governance structure, and the next steps to be taken by each party in exploring any such potential transaction.

Later on November 5, 2018, Brookfield sent Oaktree a draft mutual non-disclosure agreement. The parties exchanged drafts of the agreement, and they signed the agreement on November 9, 2018, which agreement did not contain a standstill provision. Thereafter, Brookfield provided Oaktree a list of initial due diligence questions in connection with a potential transaction, and Oaktree provided Brookfield with certain due diligence information regarding itself.

On November 7, 2018, at the direction of Oaktree, Perella Weinberg sent Brookfield a document prepared by Oaktree outlining the principles of a potential transaction involving Brookfield and Oaktree, referred to as the “principles document.” The principles document contemplated that (1) holders of Oaktree class A units and institutional holders of OCGH units would receive full liquidity at the closing of a transaction, with the non-institutional OCGH unitholders receiving partial liquidity for their OCGH units at closing, (2) Oaktree would

 

31


Table of Contents

remain an independent free-standing company and would continue to be managed by its executives, (3) the parties would discuss and explore areas of joint opportunity and Brookfield would provide investment capital to help seed new funds and strategies of Oaktree, (4) holders of OCGH units that remain outstanding following the closing of a transaction would be entitled to periodically receive liquidity for their OCGH units based on Oaktree’s future performance, referred to as the “liquidity mechanism,” (5) there would be a migration of control and governance of Oaktree to the benefit of Brookfield over time and (6) a special committee of the Oaktree board would be formed and responsible for negotiating the transaction consideration payable in respect of Oaktree class A units. The principles document did not discuss any contemplated valuation of Oaktree class A units or OCGH units in a transaction.

On November 11, 2018, representatives of Brookfield provided to Oaktree a list of additional due diligence questions regarding Oaktree and its business.

On November 13, 2018, Messrs. Karsh and Frank, and Todd Molz, Oaktree’s General Counsel and Chief Administrative Officer, along with representatives of Perella Weinberg, met with Messrs. Flatt and Beber in Los Angeles, California to discuss the general parameters of a potential transaction, the principles document, including Brookfield’s responses to the principles, and potential areas where the two firms could leverage their resources to work together. The parties agreed that Brookfield would provide a document outlining the proposed structure of a potential transaction, and that Oaktree would provide a price or range of prices upon which the parties could engage in a potential transaction.

On November 16, 2018, representatives of Brookfield, Oaktree and Perella Weinberg spoke by telephone to discuss next steps, including topics such as diligence matters, background on the structure of Oaktree, issues relating to post-closing governance, Brookfield’s structure, and a potential timeline for a transaction.

On November 17, 2018, at the direction of Oaktree, representatives of Perella Weinberg provided representatives of Brookfield with a list of due diligence questions regarding Brookfield in light of the potential receipt of Brookfield equity as merger consideration, as well as a high-level illustrative timeline of a potential transaction that contemplated entering into definitive agreements with respect to a potential transaction by mid-December 2018.

On November 21, 2018, representatives of Brookfield provided a proposal regarding the liquidity mechanism to representatives of Perella Weinberg, which proposal, among other things, contemplated that OCGH unitholders would receive a combination of cash, Brookfield equity and/or a note pursuant to the liquidity mechanism, and that the OCGH units exchanged would be valued based on multiples of average base management fee earnings and average incentive fee earnings over the three fiscal years ending prior to an exchange, as well as (without a multiple) the then-current net asset value of Oaktree’s investments. In addition, the representatives of Brookfield provided a list of supplemental due diligence questions regarding Oaktree and its business.

Later on November 21, 2018, at the direction of Oaktree, representatives of Perella Weinberg sent representatives of Brookfield a document setting forth a preliminary range of implied valuations of the Oaktree class A units based on various methods of analyses prepared by Oaktree management with the assistance of Perella Weinberg using a forecast for periods through 2020 that had been prepared without contemplation of a potential transaction by certain members of Oaktree management and shared with the Oaktree board during a regularly scheduled meeting in October 2018, referred to as the “November financial forecasts”. Such November financial forecasts were not considered by the Oaktree board in its review or approval of the potential transaction. This document noted Oaktree’s belief that the current Oaktree class A unit trading price did not fully reflect the value of Oaktree in light of expected increases in management fee earnings in 2020 and 2021. These materials were intended as an opening position in negotiations. The implied valuations presented to Brookfield indicated (1) a range of $38.65 to $46.80 per Oaktree class A unit based on its 52-week trading history, (2) a range of $50.05 to $60.18 per Oaktree class A unit based on a sum-of-the-parts analysis using Oaktree’s interpretation of the methodology that Brookfield publicly used to value itself, (3) a range of $38.00 to $50.00 based on the trading price of certain

 

32


Table of Contents

comparable companies relative to certain operating metrics (the peer firms consisting of Ares Capital, The Blackstone Group, Apollo Global Management, KKR & Co. and The Carlyle Group), (4) a range of $49.42 to $55.20 based on an analysis of premia paid in selected transactions for the acquisition of 100% of a target company over the current trading price of Oaktree class A units (excluding the bottom and top quartiles of such comparable transactions), and (5) a range of $54.38 to $60.74 based on an analysis of premia paid in selected transactions for the acquisition of 100% of a target company over the value of Oaktree class A units implied by the midpoint of the trading price of comparable companies (again excluding the bottom and top quartiles of such selected transactions). At the direction of Oaktree, representatives of Perella Weinberg also sent representatives of Brookfield a copy of the November financial forecasts, which was the first forecast provided to Brookfield by Oaktree.

During this time, the parties continued to exchange due diligence information, as well as engage in discussions regarding, among other things, the liquidity mechanism on November 23, 2018 and regarding Oaktree’s financial projections during a telephone call on November 25, 2018 among representatives of Brookfield, Oaktree and Perella Weinberg.

On November 26, 2018, Messrs. Flatt and Marks met to further discuss the principles document.

On November 28, 2018, representatives of Perella Weinberg and Brookfield spoke by telephone to discuss the form of the consideration that would be paid by Brookfield for Oaktree class A units, and in particular the allocation of consideration that would be paid in cash versus in Brookfield class A shares, and the amount of equity in the Oaktree operating group that Brookfield would indirectly own following any transaction. The parties also discussed the terms of post-closing governance arrangements in respect of Oaktree, the liquidity mechanism, and whether non-institutional OCGH unitholders would be required to commit capital to Oaktree’s funds.

On December 1, 2018, representatives of Brookfield contacted Perella Weinberg to present Brookfield’s preliminary proposal with respect to the form and amount of consideration to be paid in respect of the Oaktree class A units as well as the high-level terms of the liquidity mechanism and the amount of OCGH units being sold at closing. The representatives of Brookfield indicated a preference to pay merger consideration solely in the form of Brookfield class A shares, but with an option for Oaktree class A unitholders to elect cash consideration so long as the aggregate amount of cash consideration did not exceed 30% of the total value of the merger consideration. The Brookfield representatives also affirmed that the same amount and form of consideration would be payable in respect of both Oaktree class A units and the OCGH units to be sold at the closing. Separately, on the same day, Brookfield indicated in a phone call with a representative of Perella Weinberg, that, on a preliminary basis, it would be prepared to pay consideration having a value within a range of $47.00 to $50.00 per Oaktree class A unit.

Later on December 1, 2018, the Oaktree board held a special telephonic meeting in order for Messrs. Karsh and Marks to provide a preliminary overview of the potential transaction involving Brookfield and the conversations among the parties to date. At the meeting, Messrs. Karsh and Marks jointly provided a high-level summary of the potential transaction, noting that Brookfield had approached Mr. Karsh and proposed to acquire all of the Oaktree class A units in exchange for, at the election of each selling unitholder, either cash or Brookfield class A shares, or a combination of cash and Brookfield class A shares. Messrs. Karsh and Marks also noted that Brookfield would acquire at the closing all of the OCGH units held by institutional investors and 20% of the OCGH units held by other OCGH unitholders for the same form and amount of consideration per unit as payable in respect of Oaktree class A units. Messrs. Karsh and Marks emphasized that the discussions to date were preliminary, including with respect to the valuation of Oaktree’s business and the consideration to be paid to the Oaktree class A unitholders. Outside directors of the Oaktree board asked questions concerning the form of consideration to be received by Oaktree class A unitholders, the retention of control by Oaktree’s management after a potential transaction with Brookfield, the manner in which the remaining non-institutional OCGH units would be valued, and the timing for a potential transaction. During this meeting, Oaktree’s general counsel reviewed with the

 

33


Table of Contents

Oaktree board its duties under applicable law and the Oaktree operating agreement. The Oaktree board discussed the process by which any potential transaction involving the Oaktree class A units would be reviewed, considered and approved, including the merits of establishing a special committee of the Oaktree board responsible for evaluating, negotiating and approving or rejecting any potential transaction, as well as the need for any special committee to be empowered to engage its own legal and financial advisors.

On December 3, 2018, representatives of Brookfield management provided an update to the Brookfield board regarding recent discussions with Oaktree, an overview of Oaktree’s business and capabilities, and the potential structure and benefits of a transaction with Oaktree.

On December 5, 2018, at the request of Oaktree, representatives of Perella Weinberg provided representatives of Brookfield with a five-year financial outlook regarding Oaktree that had been prepared by Oaktree management to be shared with the Oaktree senior executives and Brookfield, referred to as the “December projections,” as well as access to an electronic data room containing confidential information concerning Oaktree. In addition to forecasts with respect to fiscal years 2021-2023, which had not been part of the November financial forecasts, the December projections were also updated to reflect actual results of operations since the preparation of the November financial forecasts.

On December 6 and 7, 2018, representatives of each party met at the offices of Perella Weinberg in New York, New York, to conduct in-person due diligence sessions regarding Oaktree’s and Brookfield’s respective businesses. During these meetings, the terms of, and valuation for, any potential transaction were not discussed.

On December 8, 2018, the Oaktree board held a special telephonic meeting with certain members of Oaktree’s management in attendance. Also present by invitation were representatives of Oaktree’s outside counsel at Simpson Thacher and Richards Layton & Finger, P.A., referred to as “Richards Layton.” Members of Oaktree’s management noted that Oaktree and Brookfield had been engaging in productive due diligence meetings and wished to move forward with a potential transaction on terms consistent with those described during the December 1, 2018 board meeting. The Oaktree board then considered a proposal to establish a special committee to review, consider, negotiate and approve (or reject) a potential transaction with Brookfield in the interest of the Oaktree class A unitholders not affiliated with OCGH. Representatives of Simpson Thacher and Richards Layton advised the Oaktree board with respect to their duties under applicable law and the Oaktree operating agreement and related matters. The Oaktree board engaged in a review of matters relating to the composition and independence of the prospective special committee, including that the members of the special committee (1) not be directly or indirectly affiliated with Messrs. Karsh, Marks or Frank, Jay S. Wintrob, Oaktree’s Chief Executive Officer, Sheldon M. Stone, a Principal and Portfolio Manager of Oaktree, OCGH, or their respective affiliates (other than an affiliation with Oaktree by virtue of serving as a director of Oaktree), (2) not be members of Oaktree’s management and (3) otherwise not have a material interest in the proposed transaction (other than an interest by virtue of their ownership of Oaktree class A units). Following extensive discussion, during which the Oaktree board considered the foregoing criteria with respect to specified members of the Oaktree board for the purpose of service on a special committee, the Oaktree board agreed to establish the special committee consisting of Marna Whittington and Steven Gilbert. The Oaktree board determined that each of Ms. Whittington and Mr. Gilbert satisfied the foregoing criteria and possessed the requisite experience, expertise and capacity to serve on the special committee. At that meeting, Ms. Whittington and Mr. Gilbert confirmed their willingness to serve on the special committee if appointed. The Oaktree board then reviewed the provisions of the Oaktree operating agreement dealing with potential conflicts between the interests of the Oaktree class A unitholders, on the one hand, and the OCGH unitholders on the other that might arise in a potential transaction. The Oaktree board discussed that, in addition to seeking the recommendation of the special committee with respect to a transaction for the Oaktree class A unitholders, Oaktree would also seek the approval of a majority of Oaktree’s “Outside Directors” as defined in the Oaktree operating agreement. Although the special committee was not formally established by the Oaktree board at this meeting, in anticipation thereof Ms. Whittington and Mr. Gilbert proceeded to function in a comparable role to begin evaluating the potential transaction on behalf of the Oaktree class A unitholders.

 

34


Table of Contents

Thereafter, Ms. Whittington and Mr. Gilbert contacted two potential legal advisors in anticipation of the Oaktree board resolving to appoint them to a special committee. On December 8, 2018, Ms. Whittington and Mr. Gilbert discussed engaging Mayer Brown LLP, referred to as “Mayer Brown,” as legal advisor to the special committee, and subsequently contacted Mayer Brown on the same day. After an interview on December 10, 2018, Ms. Whittington and Mr. Gilbert determined to engage Mayer Brown based on its qualifications, experience and reputation, including a disclosure of Mayer Brown’s relationships with Oaktree, OCGH, Brookfield and their respective affiliates, which engagement was approved on December 19, 2018.

Between December 9, 2018 and the formal establishment of the special committee by the Oaktree board on December 19, 2018, Ms. Whittington and Mr. Gilbert held discussions with representatives of Sandler O’Neill to evaluate Sandler O’Neill’s suitability to act as financial advisor to the special committee based on Sandler O’Neill’s experience with respect to the industry in which Oaktree operates and M&A advisory matters generally. Ms. Whittington and Mr. Gilbert continued discussions with Mayer Brown and Sandler O’Neill up to and following the establishment of the special committee.

Also on December 10, 2018, representatives of Brookfield sent representatives of Perella Weinberg a draft term sheet describing the terms of the potential transaction for the acquisition of all of the Oaktree class A units and a separate term sheet regarding matters pertaining to the OCGH unitholders. Each term sheet contemplated the acquisition of all of the Oaktree class A units, all of the OCGH units held by institutional holders, and a portion of the OCGH units held by non-institutional holders, in the aggregate representing approximately a 61% indirect interest in the Oaktree operating group. The term sheet for the Oaktree class A unitholders contemplated that the merger consideration would consist of Brookfield equity based on a to-be-agreed exchange ratio, but that Oaktree class A unitholders would be entitled to elect to receive merger consideration in cash so long as the aggregate consideration payable in cash did not exceed one-third of the total merger consideration. Brookfield also noted that it was considering whether the cash-stock election should also include a maximum number of Brookfield shares to be issued in any transaction. This term sheet did not include a proposed exchange ratio for, or otherwise provide a proposed valuation of, the Oaktree class A units.

The December 10, 2018 term sheet pertaining to the OCGH unitholders contained a description of the liquidity mechanism that was consistent with Brookfield’s November 21, 2018 proposal, except for the inclusion of further details regarding the timing of exercise of the liquidity mechanism and the amount of OCGH units that could be exchanged in any given year. This term sheet further provided, among other things, that (1) unvested Oaktree class A units held by Oaktree employees would be exchangeable upon vesting for the same consideration as provided to Oaktree class A units at the closing of a transaction, (2) Oaktree would establish a new long-term incentive plan for senior management following the closing and (3) the post-closing Oaktree board would be comprised of an equal number of representatives from OCGH and Brookfield until such time as Messrs. Karsh and Marks own less than a to-be-specified percentage of equity or are no longer actively and substantially involved in the day-to-day affairs of the Oaktree business, in which case membership on the Oaktree board would be allocated based on proportionate ownership.

On December 11, 2018, at the request of Oaktree, representatives of Perella Weinberg provided an expanded list of reverse due diligence questions to Brookfield.

On December 12, 2018, at the request of Oaktree, representatives of Perella Weinberg provided representatives of Brookfield with a revised term sheet for the OCGH unitholders, which, among other things, (1) provided that any new long-term incentive plan be open to key employees rather than only senior management, (2) provided that the post-closing Oaktree board would include no more than two Brookfield representatives and (3) clarified that Oaktree would remain an independently-managed business until at least the seventh anniversary following the closing. Later that day, the representatives of Perella Weinberg and Brookfield engaged in a telephone call to discuss the revised term sheet.

On December 14, 2018, Brookfield provided representatives of Oaktree with access to an electronic data room to facilitate the sharing of documents in response to the reverse due diligence questions posed to Brookfield by

 

35


Table of Contents

Perella Weinberg on December 11, 2018. Brookfield also sent a list of supplemental due diligence requests to Oaktree that same day.

On December 14, 2018, representatives of Simpson Thacher sent a term sheet relating to a potential transaction structure to representatives of Weil, counsel to Brookfield. The term sheet contemplated that, following the acquisition by Brookfield of all the issued and outstanding Oaktree class A units, pursuant to which Brookfield would acquire a 45% interest in the Oaktree operating group, Brookfield would then acquire an additional 16% interest in the Oaktree operating group through an exchange of OCGH units pursuant to the existing exchange agreement and subject to the payment of resulting amounts due under the tax receivable agreement. The term sheet also contemplated the post-closing appointment of two Brookfield representatives to the Oaktree board, certain to-be-agreed upon minority protections in favor of each party, and the establishment of an equity incentive plan at OCGH. In addition, the term sheet provided that OCGH would enter into a support agreement to vote its Oaktree units in favor of the contemplated transaction.

On December 15, 2018, Ms. Whittington and Mr. Gilbert spoke with representatives of Mayer Brown by telephone to discuss proposed resolutions of the Oaktree board formally establishing the special committee, the proposed powers and duties of the special committee, the proposed structure of the potential transaction with Brookfield, and the status of the search for a firm to act as the financial advisor to the special committee.

On December 16, 2018, representatives of Brookfield provided revisions to Oaktree’s December 12, 2018 term sheet that included revisions with respect to the timing of exercise of the liquidity mechanism and the governance of Oaktree following the closing of a potential transaction. Among other things, the revised term sheet provided that (1) future payments under the tax receivable agreement be limited to the satisfaction of liabilities outstanding as of immediately prior to the closing, with payments to be made over a to-be-agreed period of time and (2) the post-closing Oaktree board be comprised of an equal number of representatives of OCGH and Brookfield. Brookfield also sent a list of supplemental due diligence requests to Oaktree along with the revised term sheet.

On December 19, 2018, representatives of Oaktree, Perella Weinberg and Brookfield met by videoconference (with certain representatives of Perella Weinberg attending in person at Brookfield’s New York office) to conduct a due diligence session regarding Brookfield’s business, focusing in particular on Brookfield’s financial results and projections, capital structure and legal and compliance matters.

Also on December 19, 2018, Ms. Whittington and Mr. Gilbert spoke by telephone with representatives of Mayer Brown to discuss the term sheet provided by Brookfield on December 16, 2018, the proposed compensation arrangements for members of the special committee, potential conflicts relating to Mayer Brown’s potential engagement by the special committee, and the engagement of Sandler O’Neill as financial advisor to the special committee. Ms. Whittington and Mr. Gilbert reviewed a memorandum prepared by Mayer Brown, dated December 19, 2018, summarizing the existing and prior engagements of Mayer Brown by Oaktree, OCGH, Brookfield and their respective affiliates. After deliberation and consideration, the members of the special committee determined that such engagements with Oaktree, OCGH, Brookfield and their respective affiliates would not likely impair Mayer Brown’s ability to provide objective advice on the transaction or to serve as the special committee’s counsel and determined to retain Mayer Brown as legal advisor to the special committee, following its formal establishment. Mayer Brown also discussed with Ms. Whittington and Mr. Gilbert the proposed engagement of Sandler O’Neill. After considering Sandler O’Neill’s qualifications, reputation and experience, as well as the proposed terms of Sandler O’Neill’s engagement, Ms. Whittington and Mr. Gilbert determined, subject to a review of Sandler O’Neill’s relationships with Oaktree, OCGH, Brookfield and their respective affiliates and reaching agreement on the terms of Sandler O’Neill’s engagement, to engage Sandler O’Neill as the special committee’s financial advisor.

On December 20, 2018, the Oaktree board adopted by unanimous written consent resolutions formally establishing the special committee, which resolutions had been reviewed by Mayer Brown. Pursuant to these resolutions, the Oaktree board determined that each of Ms. Whittington and Mr. Gilbert (1) were not directly or

 

36


Table of Contents

indirectly affiliated with Messrs. Karsh, Marks, Wintrob, Frank, or Stone, OCGH, or their respective affiliates (other than an affiliation with Oaktree by virtue of serving as a director of Oaktree), (2) were not members of Oaktree’s management and (3) otherwise did not have a material interest in the potential transaction (other than an interest by virtue of their ownership of Oaktree class A units). The Oaktree board, by unanimous resolution, authorized and directed the special committee, on behalf of, and acting solely in the interests of, the Oaktree class A unitholders (other than OCGH), to (1) make such investigations as it deemed appropriate, (2) review and evaluate the terms and conditions, determine the advisability and approve or disapprove of the contemplated acquisition by Brookfield of the outstanding Oaktree class A units, (3) negotiate with Brookfield or any other party the special committee deemed appropriate with respect to the terms and conditions of the contemplated acquisition by Brookfield of all of the outstanding Oaktree class A units and, if the special committee deemed appropriate, but subject to the limitations of applicable law, approve the execution and delivery of documents setting forth such transaction on behalf of Oaktree, (4) determine whether the contemplated transactions (taking into account the terms and conditions of the acquisition by Brookfield, concurrent with the acquisition of the Oaktree class A units, of a portion of the outstanding OCGH units and the terms of the liquidity mechanism) negotiated by the special committee are fair to, and in the best interests of, Oaktree and all its unitholders (other than Messrs. Karsh, Marks, Wintrob, Frank, or Stone, Larry W. Keele, D. Richard Masson, Wayne G. Pierson and OCGH, or their respective affiliates) and (5) recommend to the full Oaktree board what action, if any, should be taken by the Oaktree board with respect to the contemplated acquisition by Brookfield of the outstanding Oaktree class A units. The Oaktree board further empowered the special committee to engage its own legal, financial and other advisors at Oaktree’s expense, and resolved not to recommend a potential transaction with Brookfield for approval of Oaktree’s unitholders or otherwise approve of a transaction with Brookfield without a prior favorable recommendation by the special committee. The Oaktree board further resolved that the consummation of Brookfield’s proposed acquisition of all the outstanding Oaktree class A units be irrevocably conditioned on both (1) the unanimous approval by the special committee regarding the acquisition by Brookfield of all of the Oaktree class A units and (2) the approval of a majority of the “Outside Directors” (as defined in the Oaktree operating agreement) pursuant to Section 6.17 of the Oaktree operating agreement.

On December 21, 2018, representatives of Brookfield provided a document setting forth proposed merger consideration of 1.11 Brookfield class A shares per Oaktree class A unit with respect to 67% of the outstanding Oaktree class A units (together with certain assumptions supporting the proposed exchange ratio), and $50.29 in cash per Oaktree class A unit with respect to 33% of the outstanding Oaktree class A units. Based on the closing price of Brookfield class A shares on the NYSE on the same trading day of $37.34 per share, the proposed exchange ratio implied a value of $41.45 per Oaktree class A unit. On a blended cash-share basis, this implied an overall valuation of approximately $44.39 per Oaktree class A unit. Brookfield’s proposal also contemplated that (1) the OCGH unitholders receiving consideration at the closing would receive the same per-unit value for their OCGH units as was payable in respect of the Oaktree class A units and (2) following the closing, the multiples used in valuing the consideration per OCGH unit in the liquidity mechanism would be 13x the average of base management fee earnings and 6.5x the average of incentive fee earnings.

On December 21 and 22, 2018, the special committee held telephonic meetings, at which representatives of Mayer Brown were present, to discuss the status of the contemplated transaction and the engagement of Sandler O’Neill, including the contemplated fee arrangements with Sandler O’Neill. At the meeting on December 22, 2018, Mayer Brown and the special committee reviewed disclosure letters, dated December 10, 2018 and December 21, 2018, in which Sandler O’Neill described its relationships with Oaktree, OCGH, Brookfield and their respective affiliates. After deliberation and consideration, the special committee determined that Sandler O’Neill’s disclosed relationships would not likely impair Sandler O’Neill’s ability to provide objective advice on the transaction or to act as the special committee’s financial advisor. After discussion, the special committee resolved to engage Sandler O’Neill as the special committee’s financial advisor. The special committee also formally ratified the special committee’s engagement of Mayer Brown.

From the date of the special committee’s formal establishment on December 20, 2018 to March 13, 2019 (the date of the signing of the merger agreement), the special committee held 19 meetings. All of the members of the

 

37


Table of Contents

special committee attended each of the meetings, and representatives from Mayer Brown and Sandler O’Neill attended each of the special committee meetings after they were engaged. At these meetings, the special committee, with the assistance of its advisors, among other things, analyzed and reviewed the discussions regarding the contemplated transaction that had occurred prior to the establishment of the special committee, reviewed and discussed the terms of the contemplated transaction and the status of continuing negotiations with Brookfield, and discussed the financial forecasts and projections of Oaktree prepared by Oaktree’s management and Oaktree’s financial condition and operating results. In addition, Mayer Brown reviewed and discussed with the members of the special committee their duties under applicable law and the Oaktree operating agreement.

On December 22, 2018, at the request of Oaktree, representatives of Perella Weinberg provided representatives of Brookfield with Oaktree’s initial feedback on Brookfield’s December 21, 2018 valuation proposal, noting that the proposed consideration to be paid by Brookfield in respect of both Oaktree class A units as well as OCGH units pursuant to the liquidity mechanism was not within a range that was acceptable to Oaktree.

On December 23, 2018, at the request of Oaktree, representatives of Perella Weinberg provided representatives of Brookfield with Oaktree’s counterproposal to Brookfield’s December 21, 2018 proposal, which counterproposal contemplated an exchange ratio of 1.17 Brookfield class A shares per Oaktree class A unit for 25% of the Oaktree class A units, and $50.29 in cash per Oaktree class A unit for the remaining 75%. Based on the closing price of Brookfield class A shares on the NYSE on the immediately preceding trading day, the revised exchange ratio implied a value of $43.69 per Oaktree class A unit and the merger consideration on a blended basis implied an overall value of $48.64 per Oaktree class A unit. In addition, the counterproposal provided, among other things, that the transaction provide for liquidity at closing in respect of 16% of the OCGH units held by non-institutional holders on the same terms as provided in respect of the Oaktree class A units, and that the multiples to be used for valuing OCGH units in the liquidity mechanism be the greater of Brookfield’s proposed 13x and 6.5x multiples or the multiples implied in the trading price of Brookfield class A shares.

On December 26, 2018, in a telephone call between a representative of Brookfield and a representative of Perella Weinberg, Brookfield conveyed its rejection of Oaktree’s counterproposal delivered by Perella Weinberg on December 23, 2018 and, specifically, an unwillingness to pay as much cash as required by Oaktree’s counterproposal. The parties agreed to delay further discussions regarding the consideration to be provided to the Oaktree class A unitholders given continuing volatility in the capital markets and, in particular, the trading prices of both Oaktree class A units and Brookfield class A shares. The parties also agreed to continue working to determine whether further progress could be made relating to the structure of the transaction and, in particular, the governance and liquidity mechanics that would apply post-closing.

On December 28, 2018, representatives of Perella Weinberg spoke by telephone with representatives of Sandler O’Neill to provide an overview of the background of the potential transaction and an update regarding the latest developments in the negotiations. Also on this day, representatives of Sandler O’Neill were provided with access to electronic data rooms containing confidential information of both Oaktree and Brookfield.

On December 30, 2018, at the request of Oaktree, representatives of Perella Weinberg shared a revised term sheet with representatives of Brookfield. The revised term sheet provided, among other things, that (1) the price per OCGH unit in the liquidity mechanism would be calculated by reference to 13x of the average of base management fee earnings over the prior three fiscal years immediately preceding the sale of OCGH units, 6.5x of the average of incentive fee earnings over the two fiscal years immediately preceding the sale of OCGH units, and (without a multiple) the net asset value of Oaktree’s investments, (2) the multiples applied to the averages of base management fee earnings and incentive fee earnings would be subject to increase if the Brookfield class A shares trade at an implied multiple higher than such 13x and 6.5x values and (3) the existing tax receivable agreement would remain in place for exchanges of OCGH units both before and after closing. Representatives of Sandler O’Neill and Mayer Brown were kept apprised as to this revised proposal and future proposals sent to and received from Brookfield and its representatives.

 

38


Table of Contents

On January 2, 2019, representatives of Brookfield and Perella Weinberg spoke by telephone and discussed, among other things, the valuation approach and the form of consideration to be provided under the liquidity mechanism.

On January 3, 2019, representatives of Brookfield shared a revised term sheet with representatives of Perella Weinberg, which, among other things, (1) provided that the multiples used in valuing an OCGH unit in the liquidity mechanism would not be subject to any increase and (2) reinstated the provision of Brookfield’s December 16, 2018 term sheet providing that future payments under the tax receivable agreement be limited to the satisfaction of liabilities outstanding as of immediately prior to the closing, with payments to be made over a to-be-agreed period of time. During a conversation between a representative of Brookfield and a representative of Perella Weinberg later that day to discuss Brookfield’s revisions to the term sheet, Brookfield previewed the concept of using a range of multiples for purposes of valuation in the liquidity mechanism depending on the level of growth achieved in Oaktree’s business.

On January 7, 2019, representatives of Perella Weinberg and Sandler O’Neill spoke by telephone to discuss the December 30, 2018 and January 3, 2019 term sheets and the status of negotiations.

On January 9, 2019, a representative of Brookfield and a representative of Perella Weinberg discussed reengaging in negotiations regarding the merger consideration to be paid in respect of each Oaktree class A unit as well as the OCGH units to be sold at the closing. At the request of Oaktree, the Perella Weinberg representative informed the Brookfield representative that any further negotiations regarding the price per Oaktree class A unit to be paid at closing would be between Brookfield and the special committee and its advisors.

On January 11, 2019, representatives of Brookfield sent to representatives of Perella Weinberg a revised proposal for the liquidity mechanism that contemplated adjusting the multiples used to value an OCGH unit based on the level of growth achieved in Oaktree’s business. In particular, the multiple to be applied to fee-related earnings would vary from 12x to 15x depending on the five-year compound annual growth rate of Oaktree’s fee-related earnings at any given time, and the multiple applied against performance fees would always be 50% of the multiple used for fee-related earnings.

On January 13, 2019, Brookfield submitted a new proposal to Oaktree regarding the consideration to be provided to the holders of the Oaktree class A units as well as to the holders of OCGH unitholders pursuant to the liquidity mechanism. This revised proposal contemplated (1) merger consideration to Oaktree class A unitholders as well as institutional holders of OCGH units consisting of 60% in cash at $48.00 per Oaktree class A unit and 40% in Brookfield class A shares using an exchange ratio of 1.11 Brookfield class A shares per Oaktree class A unit, subject to Brookfield’s ability to increase the stock consideration as a percentage of total consideration. The proposal, however, contemplated that only 12.5% of the merger consideration paid at closing to non-institutional OCGH unitholders be in the form of cash. The proposal also contemplated that a portion of the cash consideration be paid by means of a one-time distribution of Oaktree’s pre-closing excess cash to holders of Oaktree class A units and OCGH units. Based on the closing price of Brookfield class A shares on the NYSE on the immediately preceding trading day, the proposed exchange ratio implied a value of $45.15 per Oaktree class A unit and the merger consideration per Oaktree class A unit, on a blended basis, implied a value of $46.86 per Oaktree class A unit. In addition, Brookfield reaffirmed its proposal of January 11, 2019 regarding the use of a range of multiples in valuing OCGH units in the liquidity mechanism.

On January 15, 2019, representatives of Perella Weinberg and Sandler O’Neill spoke by telephone to discuss the proposal submitted by Brookfield on January 13, 2019. Thereafter, representatives of Brookfield and of Perella Weinberg spoke by telephone to discuss Brookfield’s January 13, 2019 proposal. The Perella Weinberg representative noted that Oaktree viewed Brookfield’s proposal as unnecessarily complex and inconsistent with the principles document. The use of a sliding scale of multiples for the liquidity mechanism, and the reduced proportion of cash consideration being paid to non-institutional OCGH unitholders, were used as examples of the

 

39


Table of Contents

complexity and divergence. The representatives of Brookfield and Perella Weinberg agreed to have a follow-up call on January 17, 2019 to discuss Oaktree’s detailed feedback. Also on January 15, 2019, Brookfield provided to Oaktree a list of supplemental due diligence requests.

On January 17, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown to discuss preparing to negotiate the merger consideration payable to the Oaktree class A unitholders. At this meeting, Sandler O’Neill discussed with the special committee the proposal submitted by Brookfield on January 13, 2019, publicly available financial and market information and the transaction status. Following this meeting, representatives of Sandler O’Neill spoke by telephone with representatives of Perella Weinberg to discuss the status of the negotiations and to obtain an update on the intended counter to Brookfield’s January 13, 2019 proposal.

Later on January 17, 2019, at the request of Oaktree, Perella Weinberg sent a revised term sheet to Brookfield, which, among other things, (1) clarified that there would be no distinction in the amount or form of merger consideration to be provided in respect of each Oaktree class A unit and each OCGH unit being sold at closing, (2) contemplated that a to-be-specified percentage of Brookfield class A shares to be received by non-institutional OCGH unitholders at closing would be subject to a restriction on transfer until the 90th day following the closing, (3) for purposes of the value per OCGH unit in the liquidity mechanism, contemplated using a multiple of 14.0x of the average of base management fee earnings over the prior three fiscal years immediately preceding the sale of OCGH units and 7.0x of the average of incentive fee earnings over the three fiscal years immediately preceding any such sale and (4) contemplated that the existing tax receivable agreement would remain in place, provided that Oaktree would be open to agreeing on accelerating all or a portion of payments under the tax receivable agreement.

Following the submission of the revised term sheet, on January 17, 2019 representatives of Brookfield and Perella Weinberg discussed Oaktree’s reactions to Brookfield’s January 13, 2019 proposal and the revised term sheet. In addition, at the request of Oaktree, Perella Weinberg conveyed Oaktree’s counterproposal that, in addition to the items addressed in Oaktree’s newly revised term sheet, (1) no portion of the cash consideration would be sourced from Oaktree’s balance sheet, and (2) non-institutional OCGH unitholders would be prepared to receive a higher proportion of stock consideration versus Oaktree class A unitholders as long as the value of stock and cash components would be equivalent at the date of public announcement of the mergers. With regard to consideration for Oaktree class A units, the representatives of Perella Weinberg reiterated that negotiations on the upfront pricing would be led by the special committee and its advisors, but that Brookfield’s proposed price per unit represented a low premium to Oaktree’s trading price.

On January 18, 2019, at the request of Oaktree, representatives of Perella Weinberg provided a further updated term sheet to representatives of Brookfield, which included modifications to the timing limitations under the liquidity mechanism and provided that the establishment of a new long-term incentive plan following the closing would be permissible, but not mandatory. Also on this day, representatives of Perella Weinberg and Sandler O’Neill spoke by telephone to discuss Brookfield’s reaction to Oaktree’s counterproposal.

On January 19, 2019, in response to the counterproposal conveyed by representatives of Perella Weinberg on January 17, 2019, and updated on January 18, 2019, a representative of Brookfield conveyed to a representative of Perella Weinberg that Brookfield understood Oaktree’s positions conveyed in their January 17, 2019, conversation but noted that Brookfield was not in a position to accept those terms. Moreover, a representative of Brookfield noted that Brookfield would take some time to reflect on its views as to what would be a viable path forward for a transaction, particularly in light of continued volatility in the capital markets. A representative of Brookfield also noted that discussions had extended beyond the date originally targeted by the parties for announcement of a transaction, and that it was necessary for Brookfield management to turn its attention to other priorities, including preparations for upcoming meetings of the boards of Brookfield and its listed issuers.

On January 21, 2019, at the direction of Oaktree, representatives of Perella Weinberg contacted representatives of Brookfield to further discuss timing and to convey Oaktree’s desire that any transaction document to be

 

40


Table of Contents

exchanged in the future between the parties reflect the principles articulated in the principles document. Also on January 21, 2019, representatives of Perella Weinberg spoke telephonically with representatives of Sandler O’Neill to provide an update regarding the discussions with Brookfield.

On January 23, 2019, at Mayer Brown’s request, Brookfield provided representatives of Mayer Brown with access to an electronic data room to facilitate Mayer Brown’s due diligence of Brookfield.

On January 28, 2019, representatives of Sandler O’Neill provided to representatives of Perella Weinberg information requests and questions on behalf of the special committee regarding Brookfield’s business, which representatives of Perella Weinberg conveyed to Brookfield.

On January 30, 2019, Weil provided a supplemental diligence request list to Simpson Thacher.

On February 1, 2019, Brookfield provided a list of supplemental due diligence requests relating to tax matters to Oaktree.

On February 2, 2019, representatives of Brookfield provided representatives of Perella Weinberg a counterproposal providing, among other things, (1) a proposed price of $48.25 per Oaktree class A unit to be paid at closing in the form of approximately 50% cash and 50% in Brookfield class A shares, although the proposal did not specify how the exchange ratio would be calculated, (2) that the cash consideration would not utilize any of Oaktree’s pre-closing cash, (3) that limited partners of OCGH, in the aggregate, would be entitled to receive an aggregate of $66 million on each of the first, second and third anniversaries of the closing in consideration for certain tax benefits to be delivered upon the exchange of OCGH units on the closing date and for future exchanges of OCGH units following the closing date and (4) a value per OCGH unit in the liquidity mechanism based upon a multiple of 13.5x of the average of base management fee earnings and 6.75x of the average of incentive fee earnings.

On February 4, 2019, in response to questions from representatives of Perella Weinberg, representatives of Brookfield clarified that their proposal contemplated consideration to be in the form of 50% cash and 50% in Brookfield class A shares, with the ability to change the consideration mix to up to 60%-40% in either direction prior to signing the merger agreement. Later that day, representatives of Perella Weinberg and Sandler O’Neill spoke by telephone to discuss Brookfield’s clarifications.

On February 4, 2019, at a telephonic meeting of the special committee, representatives of Mayer Brown reviewed the duties of the special committee under applicable law and the Oaktree operating agreement in the context of the proposed transaction. Representatives of Sandler O’Neill then joined the telephonic meeting and compared the terms of Brookfield’s counterproposal delivered on February 2, 2019 to the terms of Brookfield’s prior proposal delivered on January 13, 2019 in relation to the consideration proposed to be paid to the Oaktree class A unitholders.

On February 6, 2019, at the request of Oaktree, representatives of Perella Weinberg sent representatives of Brookfield a revised version of the term sheet, which (1) contemplated that all OCGH units exchanged in the liquidity mechanism be valued based on a 13.5x multiple of average base management fee earnings and a 6.75x multiple of average incentive fee earnings, as well as (without a multiple) the net asset value of Oaktree’s investments, (2) provided that Brookfield fund a bonus pool of $100 million, payable over three years, for current Oaktree employees other than Messrs. Marks and Karsh and (3) incorporated the portion of Brookfield’s February 2, 2019 proposal relating to the payment of $66 million in consideration for certain tax benefits payable on each of the first, second and third anniversaries of the closing.

On February 7, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown in attendance. During this meeting, representatives of Sandler O’Neill discussed preliminary financial aspects of the proposed transaction and an overview of the proposed transaction structure, and

 

41


Table of Contents

representatives of Mayer Brown provided an update regarding the status of the term sheet negotiations. Representatives of Mayer Brown also recommended that the special committee consider retaining Canadian counsel for purposes of advising the special committee on Canadian law aspects of the proposed transaction. After consideration and discussion, the special committee agreed that it should retain Canadian counsel and directed Mayer Brown to recommend a suitable Canadian law firm. Later that day, representatives of Brookfield met via video conference and in person with representatives of Sandler O’Neill and Perella Weinberg regarding Brookfield’s business and financial metrics.

On February 8, 2019, Brookfield delivered to representatives of Perella Weinberg a proposed signing timeline.

On February 9, 2019, representatives of Brookfield delivered a revised term sheet to representatives of Perella Weinberg contemplating that, rather than the $100 million bonus pool that was contemplated in Oaktree’s February 6, 2019 term sheet, a bonus plan for Oaktree employees would be established in an amount and over a period of time as would be agreed by the parties following the signing of the merger agreement.

On February 12, 2019, Brookfield sent a list of supplemental due diligence requests to Oaktree.

On February 13, 2019, representatives of Mayer Brown, Sandler O’Neill, Perella Weinberg and Brookfield participated in a telephonic discussion to further review information regarding Brookfield and its business. Brookfield sent a list of supplemental due diligence requests to Oaktree that same day.

On February 14, 2019, Weil delivered an initial draft of a proposed merger agreement to Simpson Thacher. The draft merger agreement contemplated that OCGH would enter into a support agreement with Brookfield pursuant to which OCGH would commit to vote Oaktree units held by it in favor of adopting the merger agreement and approving the transactions. In addition, the draft merger agreement proposed that Oaktree would be required to pay a termination fee equal to 4% of the implied equity value of Oaktree based on the merger consideration that would be payable, among other reasons, in the event that the merger agreement was terminated by Brookfield because OCGH either (1) failed to execute and deliver the support agreement within 5 hours after the execution and delivery of the merger agreement or (2) failed to execute and deliver a written consent adopting the merger agreement and approving the merger within 24 hours after the effectiveness of the registration statement registering shares of the Brookfield class A shares to be issued in the merger.

Also on February 14, 2019, at the direction of Oaktree, representatives of Perella Weinberg sent a revised term sheet to Brookfield, which included clarifications with respect to the calculation of the value per OCGH unit in the liquidity mechanism, such as by excluding from such calculation the value of certain bonuses and additional compensation to be granted to Oaktree employees following the closing.

Also on February 14, 2019, representatives of Brookfield, Perella Weinberg and Oaktree attended a telephonic due diligence meeting to address certain of Brookfield’s supplemental diligence requests with respect to employee compensation and outstanding litigation.

On February 15, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown in attendance. Representatives of Sandler O’Neill and Mayer Brown discussed with the special committee the status of the contemplated transaction, including the initial draft of the proposed merger agreement delivered by Weil to Simpson Thacher on February 14, 2019 and certain terms of Oaktree’s revised term sheet delivered to Brookfield on February 14, 2019. In addition, a representative of Mayer Brown reported to the special committee that such representative had contacted, on behalf of the special committee, a representative of McCarthy Tétrault LLP, a Canadian law firm referred to herein as “McCarthy Tétrault,” in order to inquire whether McCarthy Tétrault would be able to serve as Canadian counsel to the special committee in connection with the potential transaction. The representative of Mayer Brown explained to the special committee that McCarthy Tétrault represented Brookfield on unrelated matters on a limited basis and that McCarthy Tétrault had an advance waiver of conflicts from Brookfield that would enable McCarthy Tétrault to represent the special

 

42


Table of Contents

committee on the proposed transaction. The special committee asked Mayer Brown to request McCarthy Tétrault’s form of engagement letter for its review and potential approval.

On February 15, 2019, Weil sent representatives of Perella Weinberg an updated supplemental diligence request list, indicating certain items that were high priority.

On February 18, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown in attendance. Among other actions, the special committee discussed with Mayer Brown the terms of a potential engagement of McCarthy Tétrault. After deliberation and consideration, the special committee determined to engage McCarthy Tétrault based on its qualifications, experience and reputation.

Also on February 18, 2019, Messrs. Karsh and Marks met with representatives of Brookfield at Oaktree’s offices in Los Angeles, California for a due diligence session primarily focused on Oaktree’s investment strategies.

On February 19, 2019, representatives of Brookfield sent an additional list of tax-related diligence requests to Oaktree.

Also on February 19, 2019, representatives of Mayer Brown and Brookfield participated in a telephonic discussion to further review information regarding Brookfield and its business that was discussed during the February 13, 2019 telephonic discussion.

Later on February 19, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown in attendance. During this meeting, representatives of Sandler O’Neill discussed preliminary financial aspects of the proposed transaction, including feedback regarding the price of $48.25 per Oaktree class A unit proposed by Brookfield. The special committee determined to make a counterproposal of a price of $51.50 per Oaktree class A unit to be paid in the form of 50% cash and 50% Brookfield class A shares.

On February 20, 2019, representatives of Sandler O’Neill conveyed to representatives of Brookfield the special committee’s counterproposal. A representative of Brookfield responded that Brookfield believed that its offer of $48.25 per Oaktree class A unit was already fully priced and that, while Brookfield would consider the special committee’s counterproposal, Brookfield’s view was that, taken as a whole, Brookfield’s proposal already reflected its best offer for the price per Oaktree class A unit.

On February 22, 2019, representatives of Perella Weinberg informed representatives of Sandler O’Neill that Oaktree was revising the December projections and that such revisions could have an effect on Oaktree’s valuation. Also on February 22, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown, at which meeting representatives of Sandler O’Neill reported on Brookfield’s reaction to the special committee’s counterproposal and the anticipated revision of the December projections. The special committee determined to await Oaktree’s completion of its revised financial projections and Brookfield’s reaction to those projections before engaging in further price negotiations.

On February 23, 2019, at the request of Oaktree, representatives of Perella Weinberg sent to representatives of Brookfield a revised version of Oaktree management’s five-year financial projections, referred to as the “February projections,” which the parties discussed by telephone on February 25, 2019. The February projections included adjustments to reflect, among other things, the results for the fourth quarter of 2018, increased outflows of assets under management due to newly-received redemption requests, and increased costs of equity compensation. As a result of these adjustments, the revised estimated forecast for 2020, as compared to that contained in the December projections, reflected (among other things) a 3% decrease in assets under management, a 56% decrease in incentive income, a 23% decrease in adjusted net income and a 21% decrease in distributable earnings (before taking into account preferred distributions).

On February 25, 2019, representatives of Brookfield spoke to representatives of Perella Weinberg by telephone to convey proposed changes to the term sheet that would be sent in the coming days. Among the changes

 

43


Table of Contents

previewed were an increase in the price per Oaktree class A unit from $48.25 to $49.00 but subject to a limited ability for Oaktree to pay distributions on outstanding Oaktree units between the signing of the merger agreement and closing.

On February 26, 2019, representatives of Perella Weinberg received a revised term sheet from representatives of Brookfield, which contemplated a price per Oaktree class A unit of $49.00, with 50% to be paid in cash and 50% to be paid in Brookfield class A shares, with the right to re-allocate the consideration prior to signing the merger agreement so that up to 60% could be paid in either cash or shares. The revised term sheet did not specify how the exchange ratio would be calculated. The revised term sheet also contemplated that Oaktree declare and pay a final distribution in an aggregate amount of not more than $100 million (which was estimated to equate to less than approximately $0.62 per Oaktree class A unit), but thereafter no further distributions would be permitted to be made prior to closing except if the closing is delayed beyond September 30, 2019, in which case Oaktree would be permitted to pay a quarterly distribution in respect of the third fiscal quarter of 2019 (payable in the fourth fiscal quarter of 2019) in an amount not to exceed the lesser of (1) an amount per quarter per Oaktree class A unit equal to, in the aggregate, 85% of distributable income of Oaktree determined in the ordinary course of business and (2) $0.67 per quarter per Oaktree class A unit. The revised term sheet further contemplated that (i) unvested holders of Oaktree class A units would, upon vesting, be entitled to receive their proportionate share of any dividends on Brookfield class A shares paid after closing through the date of vesting, provided that stock-based compensation would be deducted from the valuation of OCGH units for purposes of the liquidity mechanism, (ii) a $150 million employee bonus pool be funded by Brookfield over a three-year period following the closing and (iii) if certain change of control consents with respect to Oaktree’s funds were not obtained at or prior to the closing of the potential transaction, then the parties would be required to obtain any such change of control consents and/or amendments to investment management agreements prior to triggering a deemed change of control through the sale of OCGH units under the liquidity mechanism.

On February 27, 2019, Mr. Dan Levin, the Chief Financial Officer of Oaktree, representatives of Perella Weinberg and representatives of Brookfield spoke by telephone about the February projections and other financial diligence questions regarding Oaktree.

Later on February 27, 2019, representatives of Perella Weinberg and Brookfield discussed, among other things, Brookfield’s recent revisions to the term sheet and Oaktree’s request that Oaktree’s permitted distribution in respect of the first quarter of 2019 be in an amount not to exceed $1.05 per Oaktree class A unit. Also on February 27, 2019 representatives of Sandler O’Neill and Brookfield spoke by phone to review the matters previously discussed with Perella Weinberg.

On February 28, 2019, Brookfield provided supplemental edits to the term sheet, which reaffirmed Brookfield’s offer of $49.00 per Oaktree class A unit and contemplated that holders of Oaktree class A units be given the right to elect whether to receive cash or Brookfield class A shares in respect of each Oaktree class A unit held by them, provided that elections be prorated in order to ensure that Brookfield not be obligated to pay more than 50% of the consideration in cash or shares (but provided that Brookfield had the right to re-allocate the consideration prior to signing the merger agreement so that up to 60% could be paid in either cash or shares). The revised term sheet also clarified that Oaktree’s final distribution be in an amount not to exceed $1.05 per Oaktree class A unit rather than $100 million in the aggregate as previously proposed by Brookfield.

On March 1, 2019, representatives of Simpson Thacher sent to representatives of Mayer Brown, for the special committee’s review, an initial draft of the support agreement and proposed revisions to Weil’s initial draft of the merger agreement. The draft of the support agreement contemplated that OCGH provide a written consent adopting the merger agreement and approving the transactions in respect of all of the Oaktree class A units and Oaktree class B units held by it, which represented approximately 92% of the voting power of all Oaktree units. As a result, upon delivery of OCGH’s written consent, the Oaktree member approval would be obtained. The draft support agreement also required that OCGH’s general partner request that, pursuant to the existing exchange agreement, each institutional holder of OCGH units exchange all of the OCGH units held by it for

 

44


Table of Contents

Oaktree class A units, and that each other OCGH unitholder exchange a pro rata portion of 10% of the number of all the outstanding Oaktree class A units and OCGH units.

Also on March 1, 2019, the special committee met telephonically with representatives of Sandler O’Neill and Mayer Brown in attendance. Representatives of Sandler O’Neill updated the special committee on the terms of the latest draft of the term sheet received from Brookfield, including the supplemental edits made by Brookfield on February 28, 2019. After discussion, the special committee directed Sandler O’Neill to propose to Brookfield that, between the signing of the merger agreement and the closing of the potential transaction, Oaktree would be permitted to pay its regular distributions on Oaktree class A units in the ordinary course of business, including a distribution in respect of the second quarter of 2019 (payable in the third quarter of 2019), subject to reasonable limits on the amounts of such distributions to be agreed by the parties in the merger agreement.

On March 2, 2019, representatives of Sandler O’Neill and representatives of Brookfield engaged in a telephone call to discuss the special committee’s proposal regarding distributions on Oaktree class A units. During the telephone call, Brookfield stated that it was not prepared to make any further changes to its current proposal regarding a distribution on the Oaktree class A units in respect of the second quarter of 2019 (payable in the third quarter of 2019).

On March 2, 2019, at the direction of Oaktree, representatives of Perella Weinberg provided a revised draft of the term sheet to Brookfield, which, among other things, contemplated that (1) Oaktree would be entitled to declare and pay a final quarterly distribution in respect of the first fiscal quarter of 2019 (payable in the second quarter of 2019) in an amount equal to $1.05 per Oaktree class A unit and $1.11 per OCGH unit; (2) if closing is delayed beyond September 30, 2019, Oaktree thereafter would be entitled to declare and pay a quarterly distribution on Oaktree class A units and OCGH units in respect of the third quarter of 2019 and subsequent periods not to exceed the lesser of (A) an aggregate amount equal to 85% of distributable income of Oaktree determined in the ordinary course of business and (B) $0.67 per quarter per Oaktree class A unit or $0.74 per OCGH unit plus the amount (if any) of incentive income that has been recognized solely for purposes of making a tax distribution related to taxable incentive income; and (iii) unvested Oaktree class A units not receiving merger consideration and instead receiving the payments to be made under the liquidity mechanism if such unvested units vested after 2021. The term sheet also clarified that regular quarterly distributions in respect of the Oaktree preferred units be permitted in all quarters. Also on March 2, 2019, Messrs. Flatt and Marks engaged in a telephone call to discuss the latest terms of the potential transaction.

On March 2, 2019, a final version of Oaktree’s five-year financial projections, referred to as the “final projections,” containing immaterial refinements as compared to the February projections, was made available in the electronic data room to which representatives of Brookfield had access and, separately, Weil sent an updated supplemental diligence request list to Perella Weinberg, indicating the status of each item.

On March 3, 2019, representatives of Mayer Brown spoke by phone with representatives of Simpson Thacher to provide the special committee’s feedback on Simpson Thacher’s initial draft of the support agreement. The representatives of Mayer Brown conveyed the special committee’s direction that, upon the making of an adverse recommendation change by the special committee pursuant to the merger agreement, OCGH not be obligated to deliver a written consent in respect of all its Oaktree units in favor of the adoption of the merger proposal. Instead, upon the making of an adverse recommendation change by the special committee, the voting obligations of OCGH would be reduced, referred to as a “voting cut-back.” Pursuant to the voting cut-back, OCGH would instead be required to provide a consent in favor of the adoption of the merger agreement with respect to (1) a number of units representing 20% of the aggregate voting power of the outstanding Oaktree units plus (2) a number of other Oaktree units the aggregate voting power of which, as a percentage of the aggregate voting power of all outstanding Oaktree units not covered by the preceding item (1), is equal to the percentage of aggregate voting power with respect to all outstanding Oaktree units held by Oaktree unitholders (other than OCGH), voting as a single class (taking into account that each holder of the Oaktree class A units is entitled to one vote per unit and each holder of Oaktree class B units is entitled to 10 votes per unit), voting in favor of

 

45


Table of Contents

approving the merger proposal. As a result, upon an adverse recommendation change, the Oaktree member approval would require, in addition to OCGH’s written consent (as limited by the voting cut-back), that other Oaktree class A unitholders holding at least one-third of the outstanding Oaktree class A units also consent in favor of the adoption of the merger agreement.

On March 4, 2019, the special committee held a telephonic meeting with representatives of Mayer Brown and Sandler O’Neill in attendance. At the meeting, representatives of Sandler O’Neill provided the special committee with a summary of the material changes reflected in Oaktree’s revised draft of the term sheet delivered to Brookfield on March 2, 2019, which included a proposed resolution on the calculation of the liquidity mechanism. Representatives of Sandler O’Neill also informed the special committee that Brookfield had indicated that it was unwilling to permit distributions on Oaktree class A units in respect of the second quarter of 2019. In addition, representatives of Sandler O’Neill updated the special committee regarding preliminary financial aspects of the proposed transaction based on the final projections and the terms of the then-current draft documents. Representatives of Mayer Brown provided the special committee with an update on the terms of the current draft of the merger agreement and support agreement, as well as a summary of the deal protections in the then-current drafts of the merger agreement and ancillary agreements. After discussion with its advisors, including careful consideration of Brookfield’s offer of $49.00 per Oaktree class A unit reflected in Brookfield’s February 27, 2019 draft of the term sheet, the special committee determined that Brookfield’s offer of $49.00 per Oaktree class A unit was acceptable. The special committee also accepted Brookfield’s position that no distributions would be made in respect of Oaktree class A units for the second quarter of 2019 but proposed that Oaktree be permitted to declare and pay a distribution in respect of the third quarter of 2019 as soon as practicable after September 30, 2019 (and to pay distributions in respect of any subsequent fiscal quarter as soon as practicable after the last day of that fiscal quarter) rather than at times consistent with past practice.

On March 5, 2019, Munger, Tolles & Olson LLP, referred to as “Munger Tolles,” counsel to Oaktree, delivered to Weil a draft limited liability company agreement to govern Oaktree’s operations following the closing, and Simpson Thacher delivered a draft of the exchange agreement to govern the operation of the liquidity mechanism following the closing. Over the course of the following days, Simpson Thacher sent to Weil a draft of Oaktree’s confidential disclosure schedules to the merger agreement as well as draft term sheets regarding the amendment to the tax receivable agreement to be entered into upon the closing as well as registration rights and notes to be issued as consideration in respect of the liquidity mechanism.

On March 6, 2019, Simpson Thacher sent a revised draft of the merger agreement (which included input from Mayer Brown) to Weil. The revised draft of the merger agreement proposed a termination fee in an amount equal to 2% of Oaktree’s equity value implied by the merger consideration, but which would not be payable due to the failure of OCGH to provide its written consent adopting the merger agreement within 24 hours following the effectiveness of Brookfield’s registration statement. The revised draft also included additional representations, warranties and interim operating covenants to be provided by Brookfield, expanded the scope of Brookfield’s obligations to obtain certain required regulatory approvals, and expanded the circumstances in which the Oaktree board or special committee could effect an adverse recommendation change or take other actions in response to alternative acquisition proposals. In addition, the revised draft of the merger agreement contemplated that Oaktree be permitted to pay (1) a distribution of up to $0.75 per Oaktree class A unit in respect of the fourth calendar quarter of 2018 (payable in the first calendar quarter of 2019), (2) a distribution of up to $1.05 per Oaktree class A unit in respect of the first calendar quarter of 2019 (payable in the second calendar quarter of 2019) and (3) if the closing has not occurred on or prior to September 30, 2019, distributions in respect of the third quarter of 2019 and thereafter not in excess of the sum of $0.67 per Oaktree class A unit plus the aggregate per unit amount of incentive income recognized during the third quarter of 2019 (or thereafter as the case may be) that relates to tax distributions from funds. However, the distribution pursuant to the preceding item (3) would be limited to the extent distributions from the Oaktree operating group in respect of Oaktree class A units and OCGH units exceed 85% of all distributable earnings for the second immediately preceding calendar quarter.

 

46


Table of Contents

Concurrently with sending the revised draft of the merger agreement on March 6, 2019, representatives of Simpson Thacher also sent an initial draft of the support agreement (which included input from Mayer Brown) to representatives of Weil. The draft of the support agreement was substantially the same as was provided to the representatives of Mayer Brown on March 3, 2019, and incorporated the voting cut-back as directed by the special committee. Representatives of Simpson Thacher provided supplemental revisions to the merger agreement on March 6, 2019 to incorporate provisions regarding required CFIUS approval.

On March 7, 2019, representatives of Oaktree, Perella Weinberg and Brookfield discussed by telephone the anticipated treatment of the outstanding Oaktree preferred units as a result of the transaction, and the representatives of Oaktree and Brookfield agreed that the Oaktree preferred units would not be affected by the mergers.

Also on March 7, 2019, at the direction of the special committee, representatives of Sandler O’Neill spoke with representatives of Brookfield by telephone to discuss basing the exchange ratio in the transaction on the volume-weighted average price of Brookfield class A shares and Oaktree class A units over the ten full trading days immediately preceding the signing of the merger agreement, as opposed to using a five-day period as desired by Brookfield. In addition, Sandler O’Neill conveyed the special committee’s request that Oaktree be permitted to declare and pay a distribution in respect of the third quarter of 2019 as soon as practicable after September 30, 2019 (and to pay distributions in respect of any subsequent fiscal quarter as soon as practicable after the last day of that fiscal quarter) rather than at times consistent with past practice. Later that day, at a telephonic meeting of the special committee that representatives of Sandler O’Neill and Mayer Brown attended, representatives of Sandler O’Neill reported to the special committee on its discussions with Brookfield.

Later on March 7, 2019, the Oaktree board held a special telephonic meeting with certain members of management in attendance, and also present by invitation were representatives from Simpson Thacher, Richards Layton and Perella Weinberg. At this meeting, Oaktree’s general counsel provided an update regarding, and overview of, the principal legal documents that Oaktree would enter into in connection with the potential transaction with Brookfield. Mr. Marks then noted that the original principles underlying the reasons to pursue the transaction, as set forth in the principles document, had not changed since the Oaktree board was first apprised of the discussions with Brookfield in December 2018. Representatives of Richards Layton advised with respect to duties under Delaware law and the Oaktree operating agreement, in relation to the Oaktree board’s review, consideration and evaluation of the potential transaction. Representatives of Simpson Thacher reviewed the scope of authority delegated to the special committee regarding the potential transaction and that the Oaktree board had previously resolved that it would not be permitted to recommend the potential transaction for approval by Oaktree’s unitholders without (1) the unanimous approval by the special committee regarding the acquisition by Brookfield of all of the Oaktree class A units and (2) the approval of a majority of the “Outside Directors” (as defined in the Oaktree operating agreement) pursuant to Section 6.17 of the Oaktree operating agreement. Thereafter, representatives of Perella Weinberg provided an overview of key transaction terms relating to the treatment of Oaktree class A units and the terms that were applicable to holders of OCGH units, including the proposed merger consideration, the liquidity mechanism, the ability to make permitted distributions between signing and closing, and the amendment to the tax receivable agreement. Representatives of Perella Weinberg proceeded to provide a preliminary financial analysis of the financial terms of the potential transaction and an overview of Brookfield’s businesses.

On March 8, 2019, Weil delivered to Simpson Thacher a revised merger agreement together with edits to Oaktree’s confidential disclosure schedules to the merger agreement. The revised draft of the merger agreement proposed a termination fee in an amount equal to 4% of Oaktree’s equity value implied by the merger consideration, and contemplated that it would be payable upon a termination of the merger agreement by Brookfield due to OCGH failing to provide its written consent adopting the merger agreement within 24 hours following the effectiveness of Brookfield’s registration statement. In the revised draft, Weil increased the scope of Oaktree’s interim operating covenants, reduced Brookfield’s obligations to obtain certain required regulatory approvals, and also removed a number of representations, warranties and interim operating covenants that were

 

47


Table of Contents

previously applicable to Brookfield. Weil also delivered to Simpson Thacher a revised support agreement containing a modified voting cut-back contemplating that, upon an adverse recommendation change by the special committee, OCGH would be required to vote in favor of the adoption of the merger agreement (1) a number of units representing 30% of the aggregate voting power of the outstanding Oaktree units plus (2) a number of other Oaktree units which, as a percentage of the aggregate voting power of all the Oaktree units held by OCGH, equals the percentage of the aggregate voting power with respect to Oaktree class A units held by other Oaktree unitholders for which a vote was cast in favor of the adoption of the merger agreement. The revised merger agreement further contemplated that the limit on post-September 30, 2019 distributions would be based on distributable earnings for the immediately preceding fiscal quarter rather than the second immediately preceding fiscal quarter.

On the evening of March 8, 2019, representatives of Brookfield communicated by email to representatives of Sandler O’Neill Brookfield’s proposal with respect to the form and allocation of the merger consideration per Oaktree class A unit, including a response to the special committee’s proposal conveyed on March 7, 2019 regarding the calculation of the exchange ratio for Brookfield class A shares. In the email, Brookfield confirmed that the consideration of $49.00 per Oaktree class A unit would be comprised 50% in cash and 50% in Brookfield class A shares and proposed an exchange ratio for the share consideration of 1.0739 Brookfield class A shares (based on the five-day trailing volume-weighted average price of such shares as of March 8th) for each Oaktree class A unit.

In a telephone conversation on March 9, 2019 between representatives of Brookfield and representatives of Sandler O’Neill, representatives of Brookfield affirmed the email communication of the previous evening, agreed to consider the special committee’s request to calculate the exchange ratio using a ten full trading day calculation period ending on the trading day immediately preceding the signing of the merger agreement, and rejected the special committee request conveyed on March 7, 2019 to accelerate the timing of declaring and paying distributions on Oaktree class A units in respect of the third quarter of 2019 and subsequent periods.

Also on March 9, 2019, representatives of Mayer Brown and Simpson Thacher discussed potential revisions to the merger agreement. During this conversation, the representatives of Mayer Brown expressed the view that Oaktree should not be required to pay a termination fee due to a failure of OCGH to timely deliver its written consent adopting the merger agreement. The representatives of Mayer Brown noted that all of such fee would be borne by the holders of Oaktree class A units, of which OCGH held very little, which was inequitable. The representatives of Mayer Brown also proposed that quarterly distributions on Oaktree class A units declared after September 30, 2019 be in respect of the second immediately preceding fiscal quarter. For example, distributions on Oaktree class A units declared in the fourth quarter of 2019 would be with respect to distributable earnings in the second quarter of 2019. Mayer Brown conveyed that this change would enable Oaktree to declare and pay a quarterly distribution soon after September 30, 2019 without interposing any delay in order to calculate distributable earnings in respect of the recently completed third quarter of 2019.

On the evening of March 9, 2019, the special committee held a telephonic meeting with representatives of Mayer Brown and Sandler O’Neill in attendance. At the meeting, representatives of Mayer Brown updated the special committee on the terms of the latest drafts of the merger agreement and ancillary agreements and summarized for the special committee the discussion earlier in the day between representatives of Mayer Brown and Simpson Thacher regarding certain open issues in the transaction documents, including the proposed allocation of responsibility for payment of the termination fee and the proposed acceleration of quarterly distributions on Oaktree class A units declared after September 30, 2019. In addition, representatives of Sandler O’Neill reported to the special committee on its discussion with representatives of Brookfield earlier that day, including that Brookfield was considering the special committee’s request to calculate the exchange ratio using a ten full trading day calculation period ending on the trading day immediately preceding the signing of the merger agreement.

On March 10, 2019, at the request of Oaktree, a representative of Perella Weinberg sent Brookfield a list of open issues in the transaction documents, including those relating to the closing condition regarding client consents,

 

48


Table of Contents

the level of efforts to be expended by Brookfield in obtaining regulatory approvals, post-closing governance of Oaktree, and the valuation of and timing of exchanges for OCGH units in the liquidity mechanism. Over the course of March 10, 2019, Messrs. Marks, Karsh, Flatt and Beber and representatives of Perella Weinberg engaged in multiple telephone conversations regarding these open issues.

On March 10, 2019, representatives of Simpson Thacher delivered to representatives of Weil a revised merger agreement (which included input from Mayer Brown) containing, among other things, the provisions regarding distributions and termination fee triggers as directed by the special committee and described on the March 9, 2019 phone call between representatives of Simpson Thacher and Mayer Brown. In addition, that same day, representatives of Simpson Thacher also delivered to representatives of Weil a revised draft of the support agreement (which included input from Mayer Brown). As directed by the special committee, the voting cut-back in the revised draft allowed for the adverse recommendation change to be made by either the Oaktree board or the special committee. In the event such an adverse recommendation change was made, then OCGH would be required to vote in favor of the adoption of the merger agreement a number of units representing (but in no event more than) 25% of the aggregate voting power of the outstanding Oaktree units plus a number of other Oaktree units in a manner consistent with Oaktree’s draft of the support agreement sent to representatives of Mayer Brown on March 1, 2019. Additionally, per the direction of the special committee, the revised draft of the support agreement provided that upon termination of the merger agreement due to a failure of OCGH to timely deliver its written consent adopting the merger agreement, any resulting termination fee owed to Brookfield would be paid by OCGH rather than Oaktree so long as at such time Brookfield would not have been permitted to terminate due to a triggering event.

Also on March 10, 2019, representatives of Brookfield communicated telephonically with representatives of Sandler O’Neill, to confirm Brookfield’s agreement to base the exchange ratio of Brookfield class A shares on the ten-day trailing volume-weighted average price of such shares as of the date the merger agreement is signed and to reject any acceleration of the payment of distributions by Oaktree in respect of the third quarter of 2019 or subsequent periods.

On the evening of March 10, 2019, the special committee held a telephonic meeting with representatives of Mayer Brown and Sandler O’Neill in attendance. At the meeting, representatives of Mayer Brown updated the special committee on developments in the proposed transaction since the previous meeting of the special committee on March 9, 2019. In addition, representatives of Sandler O’Neill reported to the special committee that Brookfield had agreed to calculate the exchange ratio using a ten full trading day calculation period ending on the trading day immediately preceding the signing of the merger agreement but had rejected the acceleration of any payment of distributions on Oaktree class A units by Oaktree in respect of the third quarter of 2019 and subsequent periods.

On March 11, 2019, the Brookfield board met to review and consider the terms of the potential transaction, including the merger agreement and related documents. Representatives of Brookfield management reviewed such terms with the Brookfield board and the Brookfield board resolved to approve proceeding with the potential transaction and delegated the final approval of the transaction to a transaction committee comprised of certain members of the Brookfield board. Between March 11, 2019 and March 13, 2019, representatives of Brookfield management provided the transaction committee with updates regarding the course of negotiations and the terms of the potential transaction, merger agreement and related agreements.

Later on March 11, 2019, a revised merger agreement sent by representatives of Weil rejected the special committee’s requests regarding the acceleration of the payment of distributions on Oaktree class A units after September 30, 2019 and the termination fee triggers, and reinstated the provision requiring that Oaktree pay any termination fee that is owed because of a failure of OCGH to timely deliver a written consent adopting the merger agreement.

Over the course of the next two days, representatives of Weil, Simpson Thacher and Munger Tolles exchanged several drafts of the merger agreement and related ancillary documents, and (with input from Mayer Brown)

 

49


Table of Contents

continued to negotiate various issues in the merger agreement, including with respect to limitations on the size and timing of distributions on Oaktree class A units permitted to be paid after September 30, 2019, the scope of the parties’ obligations to obtain required regulatory approvals in connection with the potential transaction, the interim operating covenants to which each party would be subject, the size of the termination fee, and whether the termination fee would be payable upon Brookfield’s termination of the merger agreement as a result of a failure of OCGH to timely provide its written consent adopting the merger agreement.

On March 11, 2019, representatives of Weil, Simpson Thacher, Oaktree, Brookfield and Perella Weinberg participated in a final diligence call regarding Brookfield’s business.

On March 11, 2019, Weil sent a revised merger agreement to Simpson Thacher. Among other things, the revised merger agreement continued to contemplate that Oaktree pay the termination fee in the event that Brookfield terminates the merger agreement as a result of a failure of OCGH to timely provide its written consent adopting the merger agreement. Later that day, representatives of Simpson Thacher (with input from Mayer Brown) and Weil discussed the revised draft of the merger agreement and, in particular, the triggers for the payment of the termination fee by Oaktree.

On the evening of March 11, 2019, the special committee held a telephonic meeting at which representatives of Mayer Brown reviewed the duties of the special committee in the context of the transaction in light of applicable law and the Oaktree operating agreement. The members of the special committee confirmed that no conflict had arisen since the establishment of the special committee that would interfere with the special committee members’ ability to meet their requirements under applicable law and the Oaktree operating agreement in connection with the special committee’s evaluation of the transaction. Representatives of Sandler O’Neill were then invited into the meeting. Representatives of Sandler O’Neill reviewed its preliminary financial analyses regarding the contemplated transaction based on the terms of the then-current draft documents, including valuation methodologies utilized by Sandler O’Neill in anticipation of rendering its fairness opinion with respect to the consideration to be received by Oaktree class A unitholders, and offered the members of the special committee the opportunity to ask questions regarding the potential transaction. Representatives of Sandler O’Neill also confirmed that no developments regarding Sandler O’Neill’s relationships with Oaktree, OCGH, Brookfield and their respective affiliates had arisen since Sandler O’Neill’s engagement by the special committee. Thereafter, representatives of Mayer Brown also discussed, and presented a draft summary of, the key terms of the transaction documents, including the merger agreement, the support agreement and the exchange agreement, and offered the members of the special committee the opportunity to ask questions regarding the potential transaction.

In light of the special committee’s continuing belief that it would be inequitable for Oaktree class A unitholders to bear the payment of the termination fee due to a failure of OCGH to timely deliver its written consent, on March 12, 2019, representatives of Mayer Brown provided a draft of a reimbursement agreement to representatives of Simpson Thacher, which contemplated, among other things, that OCGH would reimburse Oaktree in the event the termination fee is owed to Brookfield as a result of termination due to a written consent failure and that in other circumstances where the termination fee is owed, the fee would be paid by members of the Oaktree operating group, such that Oaktree and OCGH would bear the cost of the fee based on their respective proportionate ownership in the Oaktree operating group. During the course of the day, representatives of Simpson Thacher and Mayer Brown negotiated the final terms of the reimbursement agreement, which provided that Messrs. Karsh and Marks, rather than OCGH, would reimburse Oaktree in the event the termination fee is owed to Brookfield as a result of termination due to a written consent failure.

Following Simpson Thacher’s receipt of Weil’s revised draft of the merger agreement on March 11, 2019, through the early morning hours of March 13, 2019, representatives of each of Simpson Thacher (with input from Mayer Brown), Munger Tolles and Weil continued to negotiate the draft merger agreement, the support agreement and the related ancillary documents, including Oaktree’s confidential disclosure schedules to the merger agreement.

 

50


Table of Contents

In the morning of March 13, 2019, before the commencement of trading hours, the transaction committee established by the Brookfield board approved the transaction.

Also on the morning of March 13, 2019, before the commencement of trading hours, the special committee held a telephonic meeting with representatives of Mayer Brown and Sandler O’Neill in attendance to review the proposed final transaction documents and consider the proposed transaction. Representatives of Mayer Brown then reviewed the key terms of the drafts of the merger agreement and the ancillary agreements, including the reimbursement agreement described above, that had been negotiated since the previous meeting of the special committee, and offered members of the special committee the opportunity to ask questions regarding the potential transaction. Then, Sandler O’Neill provided Sandler O’Neill’s updated financial analyses, offered members of the special committee the opportunity to ask questions regarding the potential transaction and rendered its oral opinion to the special committee, which was subsequently confirmed in writing on March 13, 2019, to the effect that, as of such date and based upon and subject to the procedures, factors, limitations, qualifications and assumptions set forth therein, the merger consideration to be received by the holders of the Oaktree class A units was fair, from a financial point of view, to such holders (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those holders of Oaktree Class A units who are also equity holders of OCGH and holders of restricted units). After discussion by the special committee, including consideration of the factors described below under the heading “Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers—Recommendation and Reasons of the Special Committee” beginning on page 52, the special committee unanimously (i) declared the merger agreement and the merger advisable, fair to, and in the best interests of Oaktree and its unitholders holding Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of restricted units), (ii) recommended that the Oaktree board adopt resolutions approving the merger and declaring that the merger agreement and the merger are advisable, fair to, and in the best interests of Oaktree and the unitholders holding Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of restricted units and (iii) recommended that (A) the merger agreement be submitted by the Oaktree board to the unitholders for approval and (B) the Oaktree board recommend that the unitholders holding Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of restricted units) adopt the merger agreement.

Following the conclusion of the special committee meeting on the morning of March 13, 2019, before the commencement of trading hours, a telephonic meeting of the full Oaktree board was convened, and the representatives of Simpson Thacher in attendance reviewed the key terms of the draft merger agreement and the ancillary agreements that had been negotiated since the previous meeting of the Oaktree board and offered Oaktree board members the opportunity to ask questions regarding the potential transaction. The representatives of Perella Weinberg then reviewed Perella Weinberg’s financial analyses of the potential transaction and rendered to the Oaktree board Perella Weinberg’s oral opinion, which was subsequently confirmed by delivery of a written opinion dated March 13, 2019, that, as of such date and based upon and subject to the limitations, qualifications and assumptions set forth therein, the merger consideration was fair, from a financial point of view, to the holders of the Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those unitholders who are also equity holders of OCGH and holders of restricted units). The members of the special committee then reported that the special committee unanimously recommended that the full Oaktree board approve the transactions based on the special committee’s independent review, evaluation and negotiation of the contemplated transactions with the advice and assistance of its own financial and legal advisors. Following these discussions, and after review and discussion by the Oaktree board, including consideration of the factors described below under the heading “—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers—Recommendation and Reasons of the Oaktree Board; Position of Oaktree as to the Fairness of the Mergers” beginning on page 56, the Oaktree board, including the “Outside Directors” as defined in the Oaktree operating agreement, unanimously declared it advisable and in the best interests of Oaktree and its unitholders that Oaktree enter into the merger agreement and approved the merger agreement and the transactions contemplated thereby, including the merger, and

 

51


Table of Contents

recommended that the unitholders of Oaktree adopt the merger agreement. In addition, at the request of the special committee, the Oaktree board, as added assurance that Oaktree class A unitholders receive all the distributions permitted under the merger agreement, delegated to the special committee the authority to declare distributions after September 30, 2019, to the greatest extent permitted by the merger agreement and applicable law if the Oaktree board fails to do so in a timely fashion.

Immediately following the Oaktree board meeting on March 13, 2019, Oaktree, Brookfield, Berlin Merger Sub, SellerCo and Seller MergerCo entered into the merger agreement. Concurrently with the execution of the merger agreement, Oaktree, Brookfield, OCGH and OCGH’s general partner entered into the support agreement and Oaktree and OCGH entered into the reimbursement agreement. Thereafter, and before the commencement of trading hours, Oaktree and Brookfield issued a joint press release announcing their entry into the merger agreement.

Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers

Recommendation and Reasons of the Special Committee

At a meeting held on March 13, 2019, the special committee unanimously (i) declared the merger agreement and the initial merger advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units), (ii) recommended that the Oaktree board adopt resolutions approving the initial merger and declaring that the merger agreement and the initial merger are advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units) and (iii) recommended that (A) the merger agreement be submitted by the Oaktree board to the Oaktree unitholders for approval and (B) the Oaktree board recommend that the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units) adopt the merger agreement. In reaching its decision, the special committee considered a number of potentially positive factors, including the following (not necessarily in order of relative importance):

 

   

The special committee’s belief, after a thorough review of, and based on the special committee’s knowledge of, Oaktree’s long-term strategic goals and opportunities, industry trends, competitive environment and short- and long-term performance in light of Oaktree’s strategic plan, including the potential impact of those factors on the trading price of the Oaktree class A units (which cannot be precisely quantified numerically), and discussions with Oaktree’s senior management, Oaktree’s outside legal and financial advisors and the special committee’s legal and financial advisors, that the value offered to holders of Oaktree class A units pursuant to the merger agreement is more favorable to the Oaktree class A unitholders (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of restricted units) than the potential value that might reasonably be expected to result from continuing to hold the Oaktree class A units.

 

   

The risks and uncertainties associated with executing on Oaktree’s business strategy and achieving Oaktree’s internal projections of its financial performance, including as described in the “risk factors” and “forward looking statements” sections of Oaktree’s disclosures filed with the SEC, and the special committee’s views, with the advice and assistance of its financial and legal advisors, regarding the achievability of Oaktree’s internal projections of its financial performance in light of such risks and uncertainties.

 

   

The fact that the special committee and Oaktree’s senior management, with the assistance of Oaktree’s outside legal and financial advisors and the special committee’s legal and financial advisors, implemented a robust negotiation with Brookfield with respect to price and other terms and conditions

 

52


Table of Contents
 

of the merger agreement, including with respect to the mix of cash consideration and share consideration comprising the merger consideration, which negotiation resulted in significant increases to the value of Brookfield’s proposal and ultimately the receipt by Oaktree of a proposal from Brookfield for the Oaktree class A unitholders at a higher value than the proposals that Brookfield had previously put forward.

 

   

Based on the negotiation process engaged in with Brookfield, the special committee’s belief that the merger consideration of $49.00 per Oaktree class A unit, payable in cash or Brookfield class A shares, along with Oaktree’s ability to pay a regular distribution of up to $1.05 per Oaktree class A unit with respect to the first quarter of 2019 and, if the closing of the mergers does not occur on or prior to September 30, 2019, a regular distribution of up to $0.67, subject to certain exceptions, per Oaktree class A unit with respect to the third quarter of 2019 and each subsequent quarter during the period between signing and closing was the highest consideration for Oaktree class A units that could be obtained for the Oaktree class A unitholders in a business combination transaction with Brookfield, and that continued efforts to obtain a higher price from Brookfield would be unlikely to lead to higher merger consideration and could lead to the loss of Brookfield’s proposed business combination transaction.

 

   

The fact that the merger agreement and the other transaction documents were the product of arm’s-length negotiations with Brookfield, and the belief of the special committee that the terms and conditions of the merger agreement and the other transaction documents were the most favorable to Oaktree and its members (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of restricted units) to which Brookfield was willing to agree.

 

   

The relationship of the $49.00 per-Oaktree class A unit cash consideration to the trading price of the Oaktree class A units, including that the per-Oaktree class A unit cash consideration constituted a premium of:

 

   

approximately 21.2% over the volume weighted average unit price of the Oaktree class A units (on a dividend-adjusted basis) during the 90-day period ended March 12, 2019;

 

   

approximately 16.4% over the volume weighted average unit price of the Oaktree class A units (on a dividend-adjusted basis) during the 30-day period ended March 12, 2019; and

 

   

approximately 11.8% over the closing unit price on March 12, 2019.

 

   

The historic and recent trading ranges of the Oaktree class A units and the potential trading range of the Oaktree class A units absent announcement of the merger agreement, and the possibility that absent such announcement it could take a considerable period of time before the trading price of the Oaktree class A units would trade at a level in excess of the merger consideration of $49.00 on a present-value basis, if ever.

 

   

The financial presentation of Sandler O’Neill, financial advisor to the special committee, and the opinion of Sandler O’Neill to the special committee, dated March 13, 2019, to the effect that, as of that date and based on and subject to the limitations, qualifications and assumptions set forth in the opinion, the merger consideration was fair, from a financial point of view, to the holders of Oaktree Class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those unitholders who are also equity holders of OCGH and holders of restricted units), which opinion is described in the section entitled “—Opinion of Special Committee’s Financial Advisor” beginning on page 69.

 

   

The special committee’s belief, based on statements from Oaktree’s executive officers, that the Oaktree GP was unwilling to consider alternative transactions, including offers from other potential acquirers.

 

   

The special committee’s belief that it was unrealistic to expect an unsolicited third party acquisition proposal to acquire assets or control of Oaktree in light of OCGH’s ownership of a significant majority of the voting interests in Oaktree.

 

53


Table of Contents
   

Under the merger agreement, in certain circumstances and prior to the receipt of the Oaktree member approval, the Oaktree board (acting on the recommendation of the special committee) or the special committee is permitted, after taking certain steps, to make an adverse recommendation change in response to a superior proposal or intervening event, subject to Oaktree’s obligation, under certain circumstances following Brookfield’s termination of the merger agreement for such adverse recommendation change, to pay a $225 million termination fee (which the reimbursement agreement provides will be borne by the Oaktree operating group), which termination fee the special committee determined, in consultation with its financial and legal advisors, to be reasonable in light of, among other things, the benefits of the initial merger to holders of Oaktree’s class A units and the typical size of such fees in similar transactions.

 

   

The Oaktree class A unitholders who receive the cash consideration will receive immediate value for their Oaktree class A units and the Oaktree class A unitholders who receive share consideration will have the opportunity to participate in the future earnings of a combined Brookfield and Oaktree, while the terms of the merger agreement allow each Oaktree class A unitholder to elect to receive cash consideration or share consideration, in each case subject to the proration described in “The Merger Agreement—Election Procedures & Proration Adjustments” beginning on page 133.

 

   

The fixed ratio for the share consideration will provide Oaktree class A unitholders that receive share consideration the opportunity to benefit from an increase in the trading price of Brookfield class A shares between the announcement of the merger agreement and the completion of the mergers.

 

   

The representations, warranties, covenants, and agreements of the parties in and the other terms and conditions of the merger agreement, including, among other things:

 

   

the conditions to the closing and the likelihood of consummation, including the Oaktree board’s and the special committee’s determinations, in consultation with their respective outside legal counsel, that while the closing is subject to certain antitrust approvals and certain other regulatory approvals, there were not expected to be significant antitrust or other regulatory impediments to the closing, as well as the obligations of Brookfield to, among other things, use reasonable best efforts to take any and all actions (including divestitures or similar actions) to obtain applicable antitrust and other regulatory approvals, subject to specified conditions, exceptions and limitations;

 

   

the assessment by the special committee that, based on a review with management of the various categories of Oaktree’s clients and the portion of management fees represented by such clients, the closing condition in the merger agreement associated with procuring consents from certain Oaktree clients representing 82.5% of the aggregate annualized investment advisory, investment management, subadvisory or other similar recurring fees (as defined in the merger agreement) of all Oaktree clients does not impose unreasonable conditionality on the mergers;

 

   

the fact that under specified circumstances, the merger agreement provides for Oaktree to obtain specific performance against Brookfield and Berlin Merger Sub, including to consummate the transactions contemplated by the merger agreement; and

 

   

the fact that the end date of March 13, 2020 (subject to extension under certain circumstances to June 13, 2020 by either Oaktree or Brookfield) under the merger agreement is expected to allow for sufficient time to consummate the mergers.

 

   

The special committee’s belief that the participation of the Oaktree executive officers in the transaction will reduce the risk of attrition of key employees and/or loss of investors during the pre-closing period, which could reduce the risk to Oaktree if the merger agreement is terminated.

 

   

The support agreement provides that if the Oaktree board or the special committee makes an adverse recommendation change, the obligations of OCGH under the support agreement will be modified to consent or vote in favor of approving the transactions with respect to Oaktree units representing

 

54


Table of Contents
 

(i) 25% of the aggregate voting power of the outstanding Oaktree class A units and class B units, and (ii) a percentage of the remaining Oaktree units held by OCGH equal to the percentage of the aggregate voting power of the outstanding Oaktree class A units not held by OCGH that are voted in support of the transaction.

 

   

The reimbursement agreement provides, among other things, that if Oaktree is required to pay Brookfield the $225 million termination fee as a result of termination due to a written consent failure, then, under certain specified circumstances, Messrs. Marks and Karsh will, collectively, reimburse Oaktree for the full amount of the termination fee and the amount that would otherwise be paid by the Oaktree operating group pursuant to the reimbursement agreement will be reduced on a dollar-for-dollar basis.

 

   

The fact that the special committee had the authority to reject any proposals made by Brookfield.

 

   

The fact that the special committee had no obligation to recommend any transaction to the Oaktree board and that the Oaktree board would not approve any transaction without the prior affirmative recommendation of the special committee.

 

   

The fact that the special committee was unanimous in its determination to recommend the merger agreement for approval by the Board.

The special committee also considered and balanced against the potentially positive factors a number of uncertainties, risks and other potentially negative factors in its deliberations concerning the initial merger and the other transactions contemplated by the merger agreement, including the following (not necessarily in order of relative importance):

 

   

That Oaktree entered into the merger agreement with Brookfield before actively seeking offers from other potential purchasers and that the merger agreement does not contain any “go shop” or similar provisions that permit Oaktree to actively seek an alternative transaction.

 

   

That subsequent to completion of the mergers, holders of Oaktree’s class A units that received cash consideration would forgo the opportunity to realize the potential long-term value of the successful execution of Oaktree’s current strategy as an independent company by participating in any future earnings or growth or in any future appreciation in value of the Oaktree class A units.

 

   

That, because the share consideration is based on a fixed exchange ratio, the market value of the merger consideration received by the Oaktree class A unitholders would be adversely affected by a decrease in the trading price of Brookfield class A shares between the announcement of the merger agreement and the completion of the mergers.

 

   

That the merger agreement prohibits Oaktree from paying a cash distribution to holders of Oaktree class A units in respect of the second calendar quarter of 2019.

 

   

That the executive officers and directors of Oaktree and their respective affiliates have interests in the mergers that are different from, or in addition to, public holders of Oaktree’s class A units. The special committee was aware of and discussed and considered these interests; for more information about such interests, see the section entitled “—Interests of Oaktree Directors and Executive Officers in the Mergers” beginning on page 97 of this consent solicitation statement/prospectus.

 

   

That closing of the transaction is not conditioned upon the approval of holders of a majority of the Oaktree class A units, acting as a single class, or other majority-of-the-minority approval condition and that the Oaktree member approval is the only vote of the holders of any Oaktree units necessary in connection with the consummation of the mergers and the other transactions contemplated by the merger agreement.

 

   

That the special committee expected that following the execution of the merger agreement, OCGH, in its capacity as a holder of all of the outstanding Oaktree class B units and 13,000 Oaktree class A units,

 

55


Table of Contents
 

and Oaktree GP would each execute and deliver the support agreement to Brookfield pursuant to which, among other things, OCGH would agree to deliver a written consent in respect of Oaktree class A units and Oaktree class B units beneficially owned by it representing in the aggregate more than a majority of the total Oaktree units outstanding as of the date of the support agreement and which consent, when delivered, would satisfy the closing condition that the Oaktree member approval be obtained. Following the execution of the merger agreement, on March 13, 2019, OCGH and Oaktree GP each executed and delivered the support agreement to Brookfield. For more information on the support agreement, see the section entitled “The Support Agreement” beginning on page 153 of this consent solicitation statement/prospectus.

 

   

That the receipt of the merger consideration in exchange for Oaktree class A units pursuant to the merger agreement will be a taxable transaction for U.S. federal income tax purposes.

 

   

That appraisal rights would not be available for holders of Oaktree’s class A units.

 

   

The fact that, if the merger agreement is terminated under specified circumstances, Oaktree may be required to pay Brookfield a termination fee of $225 million (which the reimbursement agreement provides will be borne by the Oaktree operating group).

 

   

The potential risk that the conditions to closing may not be satisfied, including as a result of, among other things, the possibility that certain advisory clients representing at least 17.5% of the aggregate annualized investment advisory, investment management, subadvisory or other similar recurring fees (as defined in the merger agreement) of certain Oaktree clients will have objected in writing to the transactions.

 

   

The amount of time that may be required to consummate the mergers, including the fact that the completion of the mergers depends on factors outside of Oaktree’s or Brookfield’s control and the risk that the pendency of the mergers for an extended period of time could have an adverse effect on Oaktree.

 

   

The significant costs involved in connection with entering into the merger agreement and completing the mergers and the substantial time and effort of management required to consummate the mergers, which could disrupt Oaktree’s business operations.

 

   

That the announcement and pendency of the mergers, or the failure to complete the mergers, may cause substantial harm to Oaktree’s relationships with its employees (including making it more difficult to attract and retain key personnel and the possible loss of key management and other personnel) and investors in funds or other vehicles managed or advised by affiliates of Oaktree.

 

   

The restrictions in the merger agreement on Oaktree’s ability to actively solicit competing bids to acquire it and to entertain other acquisition proposals unless certain conditions are satisfied.

 

   

The restrictions on Oaktree’s conduct of business prior to completion of the mergers, which could delay or prevent Oaktree from undertaking business opportunities that may arise or taking other actions with respect to its operations during the pendency of the merger.

Recommendation and Reasons of the Oaktree Board; Position of Oaktree as to the Fairness of the Mergers

At a meeting of the Oaktree board held on March 13, 2019, after consideration of, and based upon, the unanimous recommendation of the special committee comprised solely of independent and disinterested directors (including, for the avoidance of doubt, all of the “Outside Directors” as defined in the Oaktree operating agreement), the Oaktree board (including all of the directors who are not employees of Oaktree) unanimously (i) determined that it is advisable, fair to, and in the best interests of, Oaktree and its unitholders that Oaktree enter into the merger agreement, (ii) adopted, approved and declared advisable the merger agreement, the other transaction agreements and the transactions contemplated thereby, including the merger, and all other actions or matters necessary or appropriate to give effect to the foregoing, (iii) subject to an adverse recommendation

 

56


Table of Contents

change pursuant to the merger agreement, resolved to recommend that the unitholders adopt the merger agreement and approve the merger and the other contemplated transactions; and (iv) resolved that the adoption of the merger agreement and the approval of the merger and the other contemplated transactions be submitted for consideration by the Oaktree unitholders.

Under SEC rules, Oaktree is required to express its belief as to the fairness of the mergers to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 under the Exchange Act. The mergers are not structured so that approval of a majority of “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act, is required, and since the members of the special committee were independent and disinterested non-employee directors, no unaffiliated representative was retained by or on behalf of Oaktree to act solely on behalf of unaffiliated securityholders. However, the Oaktree board, on behalf of Oaktree, believes that the mergers are substantively and procedurally fair to the Oaktree unaffiliated unitholders based on (i) the analyses and resulting conclusions of the special committee, including the factors described above, and the unanimous recommendation of the special committee that the Oaktree board adopt resolutions approving the initial merger and declaring that the merger agreement and the initial merger are advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units), (ii) the financial analysis of Oaktree’s financial advisor, Perella Weinberg (which analyses and resulting conclusions described in items (i) and (ii) the Oaktree board adopted on behalf of Oaktree), and (iii) notwithstanding that the opinion of Sandler O’Neill was provided for the information and assistance of the special committee (in its capacity as such) and Oaktree was not entitled to, and did not, rely on such opinion, the fact that the special committee received an opinion, dated March 13, 2019, of Sandler O’Neill as to the fairness, from a financial point of view, as of the date of such opinion and based upon and subject to the limitations, qualifications and assumptions set forth therein, to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, and those holders of Oaktree class A units who are also equity holders of OCGH and holders of Oaktree restricted units) of the merger consideration. The mergers were approved unanimously by members of the Oaktree board, including all of the directors who are not employees of Oaktree, and all of the members of the special committee.

See the sections entitled “—Recommendation and Reasons of the Special Committee” beginning on page 52, “—Opinion of Oaktree’s Financial Advisor” beginning on page 59, and “—Opinion of Special Committee’s Financial Advisor” beginning on page 69 of this consent solicitation statement/prospectus.

Accordingly, the Oaktree board unanimously recommends that Oaktree’s unitholders, by executing and returning the written consent furnished with this consent solicitation statement/prospectus:

 

   

“CONSENT” to the merger proposal; and

 

   

“CONSENT” to the compensation proposal.

In addition to the factors described above, the full Oaktree board also considered a variety of factors weighing positively in favor of the merger agreement and the transactions contemplated by it, including the following (not necessarily in order of relative importance):

 

   

The fact that an active and engaged special committee composed of directors who (i) were not directly or indirectly affiliated with Messrs. Karsh, Marks, Wintrob, Frank, or Stone, OCGH, or their respective affiliates (other than an affiliation with Oaktree by virtue of serving as a director of Oaktree), (ii) were not members of Oaktree’s management and (iii) otherwise did not have a material interest in the potential transaction (other than an interest by virtue of their ownership of Oaktree class A units), unanimously declared that the merger agreement and the initial merger are advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units).

 

57


Table of Contents
   

The fact that the special committee held 19 meetings between the date on which the special committee was established and the announcement of the contemplated transactions (and that the members of the special committee held several additional meetings prior to the formal establishment of the special committee) and retained and were assisted and advised by the special committee’s own outside financial and legal advisors in negotiating and evaluating the terms of the merger agreement.

 

   

The opinion of Perella Weinberg, delivered orally to the Oaktree board on March 13, 2019 and subsequently confirmed by delivery of a written opinion dated March 13, 2019, that, as of such date and based upon and subject to the limitations, qualifications and assumptions set forth therein, the merger consideration is fair, from a financial point of view, to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those unitholders who are also equity holders of OCGH and holders of restricted units). The written opinion is described below in the section entitled “—Opinion of Oaktree’s Financial Advisor” beginning on page 59 of this consent solicitation statement/prospectus.

 

   

The briefings and information provided to the various members of the Oaktree board throughout the transaction process.

 

   

The Oaktree board’s belief, based on the Oaktree board’s knowledge of Oaktree’s long-term strategic goals and opportunities, industry trends, competitive environment and short- and long-term performance in light of Oaktree’s strategic plan, including the potential impact of those factors on the trading price of the Oaktree’s class A units (which cannot be precisely quantified numerically), and discussions with Oaktree’s senior management and Oaktree’s outside financial advisors, that the value offered to Oaktree’s unitholders pursuant to the merger agreement is more favorable to Oaktree’s unitholders than the potential value that might reasonably be expected to result from remaining an independent company.

 

   

The Oaktree board’s belief that the price to be paid by Brookfield is the highest price per unit that Brookfield was willing to pay, that the terms and conditions of the merger agreement were the most favorable to Oaktree and its unitholders to which Brookfield was willing to agree, and that continued efforts to obtain a higher price from Brookfield, or soliciting additional interest from third parties, would be unlikely to lead to a higher price from Brookfield or a more favorable transaction with a third party, and could lead to the loss of Brookfield’s proposed transaction.

After taking into account the factors set forth above, as well as others, the Oaktree board concluded that the risks, uncertainties, restrictions and potentially negative factors associated with the merger were outweighed by the potential benefits of the merger to Oaktree’s unitholders.

The foregoing discussion of factors considered by the Oaktree board and the special committee is not intended to be exhaustive, but summarizes the material factors considered by the Oaktree board and special committee. In light of the variety of factors considered in connection with their evaluation of the merger agreement and the merger, the Oaktree board and special committee did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching their determinations and recommendations. Moreover, each member of the Oaktree board and special committee applied his or her own personal business judgment to the process and may have given different weight to different factors. The Oaktree board and special committee did not undertake to make any specific determination as to whether any factor, or any particular aspect of any factor, supported or did not support their ultimate determinations. The Oaktree board and special committee based their recommendations on the totality of the information presented. It should be noted that this explanation of the reasoning of the Oaktree board and special committee and certain information presented in this section is forward-looking in nature and should be read in light of the factors set forth in “Cautionary Information Regarding Forward-Looking Statements” beginning on page 122.

In their consideration of the fairness of the proposed mergers, the Oaktree board, on behalf of Oaktree, did not find it practicable or necessary to, and did not, appraise the assets of Oaktree to determine the liquidation value for the Oaktree unaffiliated unitholders (i) because of its belief that liquidation sales generally result in proceeds

 

58


Table of Contents

substantially less than the sales of a going concern, (ii) because of the impracticability of determining a liquidation value given the significant execution risk involved in any breakup, (iii) because it considered Oaktree to be a viable going concern and (iv) because Oaktree will continue to operate its business following the mergers. Oaktree did not consider net book value, which is an accounting concept, for purposes of determining the fairness of the merger consideration to the Oaktree unaffiliated unitholders because, in its view, net book value is not indicative of Oaktree’s market value but rather an indicator of historical costs. Oaktree did not seek to establish a pre-merger going concern value for the Oaktree class A units to determine the fairness of the merger consideration to the Oaktree unaffiliated unitholders because following the mergers Oaktree may have a different capital structure, cost profile and/or operating strategy, among other things. However, to the extent the pre-merger going concern value was reflected in the price of the Oaktree class A units on March 12, 2019, the last trading day before the announcement of the mergers, the per unit cash consideration of $49.00 represented a premium to the going concern value of Oaktree. In addition, Oaktree did not consider firm offers made by unaffiliated persons during the last two years, as no such offers were made during that time.

Opinion of Oaktree’s Financial Advisor

Oaktree retained Perella Weinberg to act as its financial advisor in connection with the initial merger. Oaktree selected Perella Weinberg based on Perella Weinberg’s qualifications, expertise and reputation and its knowledge of the business and affairs of Oaktree and Brookfield and the industry in which Oaktree and Brookfield conduct their businesses. Perella Weinberg, as part of its investment banking business, is continually engaged in performing financial analyses with respect to businesses and their securities in connection with mergers and acquisitions, leveraged buyouts and other transactions as well as for corporate and other purposes.

On March 13, 2019, Perella Weinberg rendered its oral opinion, subsequently confirmed in writing, to the Oaktree board that, as of such date and based upon and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations set forth therein, the merger consideration to be received by the holders of Oaktree class A units (other than excluded holders) pursuant to the merger agreement was fair, from a financial point of view, to such holders.

The full text of Perella Weinberg’s written opinion, dated March 13, 2019, which sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken by Perella Weinberg, is attached as Annex D to this consent solicitation statement/prospectus and is incorporated by reference herein. Holders of Oaktree units are urged to read Perella Weinberg’s opinion carefully and in its entirety. The opinion does not address Oaktree’s underlying business decision to enter into the merger agreement or any of the other transactions contemplated by the merger agreement or the relative merits of the initial merger or such other transactions as compared with any other strategic alternative which may be available to Oaktree. The opinion was not intended to be and does not constitute a recommendation to any holder of Oaktree units, Brookfield class A shares or holder of any other securities as to how to vote or otherwise act with respect to the initial merger or any other matter, including what form of merger consideration such holder should elect to receive pursuant to the election procedure set forth in the merger agreement. The opinion does not in any manner address the prices at which the Oaktree class A units or Brookfield class A shares will trade at any time. In addition, Perella Weinberg expressed no opinion as to the fairness of the initial merger or of the subsequent merger (or any arrangements made in connection with the initial merger or the subsequent merger) to, or any consideration received (or which may in the future be received) in connection with the initial merger or the subsequent merger by, the holders of any other class of securities, including for the avoidance of doubt the Unaffected Units, creditors or other constituencies of Oaktree. Perella Weinberg provided its opinion for the information and assistance of the Oaktree board, acting in capacity as such, in connection with, and for the purposes of its evaluation of, the initial merger. This summary is qualified in its entirety by reference to the full text of the opinion.

In arriving at its opinion, Perella Weinberg, among other things:

 

   

reviewed certain publicly available financial statements and other publicly available business and financial information with respect to Oaktree and Brookfield, including research analyst reports;

 

59


Table of Contents
   

reviewed certain internal financial statements, analyses and forecasts, and other internal financial data relating to the business of Oaktree prepared by Oaktree’s management, referred to as the “Oaktree Forecasts”;

 

   

reviewed certain internal financial statements, analyses and forecasts, and other internal financial data relating to the business of Brookfield prepared by Brookfield’s management, referred to as the “Brookfield Forecasts”;

 

   

reviewed certain publicly available forecasts prepared by Wall Street analysts relating to Oaktree, referred to as the “Oaktree Public Forecasts,” and Brookfield, referred to as the “Brookfield Public Forecasts” and together with the Oaktree Public Forecasts, the “Public Forecasts”;

 

   

discussed the past and current business, operations, financial condition and prospects of Oaktree and Brookfield with senior executives of Oaktree and Brookfield and their respective representatives;

 

   

compared the financial performance of Oaktree and Brookfield with that of certain publicly-traded companies which Perella Weinberg believed to be generally relevant;

 

   

compared the financial terms of the initial merger with the publicly available financial terms of certain transactions which Perella Weinberg believed to be generally relevant;

 

   

reviewed the historical trading prices for the Oaktree class A units and Brookfield class A shares, and compared such prices of the Oaktree class A units and Brookfield class A shares with that of securities of certain publicly-traded companies which Perella Weinberg believed to be generally relevant;

 

   

participated in certain discussions and negotiations among representatives of Oaktree and Brookfield and their representatives;

 

   

reviewed a draft of the merger agreement dated March 13, 2019; and

 

   

conducted such other financial studies, analyses and investigations, and considered such other factors, as Perella Weinberg deemed appropriate.

In arriving at its opinion, Perella Weinberg assumed and relied upon, without assuming responsibility for independent verification, the accuracy and completeness of the financial and other information supplied or otherwise made available to it (including information that was available from generally recognized public sources) for purposes of its opinion and further assumed, with the Oaktree board’s consent, that information furnished by Oaktree for purposes of Perella Weinberg’s analysis did not contain any material omissions or misstatements of material fact. With respect to the Oaktree Forecasts, Perella Weinberg was advised by the management of Oaktree, and assumed, with the Oaktree board’s consent, that they had been reasonably prepared on bases reflecting the best available estimates at the time and good faith judgments of management of Oaktree as to the future financial performance of Oaktree and the other matters covered thereby, and Perella Weinberg expressed no view as to the reasonableness of the Oaktree Forecasts or the assumptions on which they were based. With respect to the Brookfield Forecasts, Perella Weinberg was advised by the management of Brookfield, and assumed, with the Oaktree board’s consent, that they had been reasonably prepared on bases reflecting the best available estimates at the time and good faith judgments of management of Brookfield as to the future financial performance of Brookfield and the other matters covered thereby, and Perella Weinberg expressed no view as to the reasonableness of the Brookfield Forecasts or the assumptions on which they were based. With respect to the Public Forecasts, Perella Weinberg assumed that such forecasts were reasonably prepared and were reliable for the purposes used in Perella Weinberg’s analyses. In arriving at its opinion, Perella Weinberg did not make and was not provided with any independent valuation or appraisal of the assets or liabilities (including any contingent, derivative or off-balance-sheet assets and liabilities) of Oaktree or Brookfield. In addition, Perella Weinberg did not evaluate the solvency of any party to the merger agreement under any state, provincial or federal laws relating to bankruptcy, insolvency or similar matters. In arriving at its opinion, Perella Weinberg also assumed, in all respects material to its analysis, that the representations and warranties of each party contained in the merger agreement were true and correct, that the initial merger would be consummated in accordance with the terms set forth in the merger agreement, without material modification

 

60


Table of Contents

(including, without limitation, modification to the mix of merger consideration or the form or structure of the transaction) or amendment, without waiver of any of its covenants or conditions, or without delay, and that the final executed merger agreement would not differ in any respect material to its analysis from the draft merger agreement that it reviewed. In addition, Perella Weinberg assumed that in connection with the receipt of all the necessary approvals of the initial merger, no delays, limitations, conditions or restrictions would be imposed that could have an adverse effect on Oaktree, Brookfield or the contemplated benefits expected to be derived in the initial merger. Perella Weinberg relied as to all legal matters relevant to rendering its opinion upon the advice of counsel.

Perella Weinberg’s opinion addressed only the fairness from a financial point of view to the holders of Oaktree class A units (other than excluded holders), solely in their capacity as such, as of the date of Perella Weinberg’s opinion, of the merger consideration to be received by such holders pursuant to the merger agreement. Perella Weinberg was not asked to offer, and it did not offer, any opinion as to any other term of the merger agreement, the proration methodology set forth in the merger agreement, the form or structure of the initial merger or the structure of the subsequent merger or the likely timeframe in which the initial merger or the subsequent merger would be consummated. Perella Weinberg’s opinion did not address the allocation of the merger consideration as between holders of Oaktree class A units who receive the cash consideration or the share consideration or the relative fairness of the cash consideration and the share consideration. Perella Weinberg’s opinion did not address any aspect of the subsequent merger or the fairness of the merger consideration to holders of SellerCo units or the allocation of the merger consideration as between the holders of Oaktree class A units and holders of SellerCo units. In addition, Perella Weinberg expressed no opinion as to (x) the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the merger agreement, or any class of such persons, or (y) any effect of the initial merger or the subsequent merger or any arrangements entered into in connection with the initial merger or the subsequent merger or relating to Oaktree class B units or the Oaktree preferred units (which Oaktree preferred units, together with the Oaktree class B units, are referred to as the “Unaffected Units”) (including the fairness of any consideration received (or which may in the future be received) in connection with the initial merger or the subsequent merger by holders of Unaffected Units), in the case of each of the foregoing clauses (x) and (y) whether relative to the merger consideration or otherwise. Perella Weinberg did not express any opinion as to any tax or other consequences that may result from the transactions contemplated by the merger agreement, nor did its opinion address any legal, tax, regulatory or accounting matters, as to which Perella Weinberg understood Oaktree had received such advice as it deemed necessary from qualified professionals. Perella Weinberg’s opinion did not address the underlying business decision of Oaktree to enter into the merger agreement or any of the other transactions contemplated by the merger agreement or the relative merits of the initial merger and such other transactions as compared with any other strategic alternative which may be available to Oaktree. In arriving at its opinion, Perella Weinberg was not authorized to solicit, and did not solicit, interest from any third party with respect to any business combination or other extraordinary transaction involving Oaktree.

Perella Weinberg expressed no opinion as to the fairness of the initial merger or of the subsequent merger (or any arrangements made in connection with the initial merger or the subsequent merger) to, or any consideration received (or which may in the future be received) in connection with the initial merger or the subsequent merger by, the holders of any other class of securities, including for the avoidance of doubt the Unaffected Units, creditors or other constituencies of Oaktree. Perella Weinberg’s opinion was necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to it as of, the date of its opinion. It should be understood that subsequent developments may affect Perella Weinberg’s opinion and the assumptions used in preparing it, and Perella Weinberg does not have any obligation to update, revise, or reaffirm its opinion. The issuance of Perella Weinberg’s opinion was approved by a fairness opinion committee of Perella Weinberg.

Summary of Material Financial Analyses

In connection with its opinion, Perella Weinberg performed standalone valuations of each of Oaktree and Brookfield using a variety of methodologies and an exchange ratio analysis derived from the Oaktree and

 

61


Table of Contents

Brookfield standalone valuation ranges for each respective methodology. The following is a summary of the material financial analyses performed by Perella Weinberg and reviewed by the Oaktree board in connection with Perella Weinberg’s opinion relating to the initial merger and does not purport to be a complete description of the financial analyses performed by Perella Weinberg. The order of analyses described below does not represent the relative importance or weight given to those analyses by Perella Weinberg. Some of the summaries of the financial analyses include information presented in tabular format.

In order to fully understand Perella Weinberg’s financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial analyses. Considering the data below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of Perella Weinberg’s financial analyses.

Exchange Ratio Analysis

Perella Weinberg performed an implied exchange ratio analysis which reviewed implied exchange ratios derived from the Oaktree and Brookfield standalone valuation ranges for each of their respective standalone valuation methodologies as are described below. Implied exchange ratios were calculated as follows: the low end of the exchange ratio range was calculated by dividing the low end of the Oaktree class A unit price range by the high end of the Brookfield class A share price range and the high end of the exchange ratio range was calculated by dividing the high end of the Oaktree class A unit price range by the low end of the Brookfield class A share price range.

Selected Publicly Traded Companies

In respect of the selected publicly traded companies analyses for each of Oaktree and Brookfield set forth below, the implied exchange ratio range for 2019 estimated earnings was 0.69x – 1.39x and for 2020 estimated earnings was 0.43x – 0.93x. Perella Weinberg compared these ranges to the 1.0770x exchange ratio set forth in the merger agreement.

Discounted Cash Flow

In respect of the discounted cash flow analyses for each of Oaktree and Brookfield set forth below, the implied exchange ratio range was 0.67x – 0.98x. Perella Weinberg compared this range to the 1.0770x exchange ratio set forth in the merger agreement.

Oaktree Standalone Valuation

Selected Publicly Traded Companies Analysis of Oaktree

Perella Weinberg reviewed and compared certain financial information for Oaktree to corresponding financial information, ratios and public market multiples for certain publicly held companies in the alternative asset management industry. Although none of the following companies are identical to Oaktree, Perella Weinberg selected these companies because they had publicly traded equity securities and were deemed to be similar to Oaktree in one or more respects, including operating in the alternative asset management industry.

Oaktree Selected Publicly Traded Companies

 

   

Apollo Global Management, LLC

 

   

Ares Management Corporation

 

   

The Blackstone Group L.P.

 

   

The Carlyle Group L.P.

 

   

KKR & Co. Inc.

 

62


Table of Contents

For each of the selected companies, Perella Weinberg calculated the company’s closing price per share as of March 12, 2019 as a multiple of its estimated 2019 and 2020 distributable earnings per share, referred to as “DEPS”, based on consensus third party research estimates for forecasted information as compiled by Perella Weinberg.

Using third party research estimates for the selected companies, Perella Weinberg observed that the DEPS multiples for the selected companies ranged from 9.3x – 14.9x for 2019 estimated DEPS and 7.2x – 12.1x for 2020 estimated DEPS. Perella Weinberg then applied (i) the 2019 9.3x – 14.9x range of multiples of estimated DEPS for the selected companies to estimated 2019 Oaktree DEPS of $4.06 based on the Oaktree Forecasts, resulting in an implied per unit reference range for Oaktree class A units of $37.88 to $60.45, (ii) the 2019 9.3x – 14.9x range of multiples of estimated DEPS for the selected companies to estimated 2019 Oaktree DEPS of $3.41 based on the third party research estimates, resulting in an implied per unit reference range for Oaktree class A units of $31.85 to $50.83, (iii) the 2020 7.2x – 12.1x range of multiples of estimated DEPS for the selected companies to estimated 2020 Oaktree DEPS of $3.20 based on the Oaktree Forecasts, resulting in an implied per unit reference range for Oaktree class A units of $23.13 to $38.81 and (iv) the 2020 7.2x – 12.1x range of multiples of estimated DEPS for the selected companies to estimated 2020 Oaktree DEPS of $3.83 based on the third party research estimates, resulting in an implied per unit reference range for Oaktree class A units of $27.68 to $46.44. Perella Weinberg compared these ranges to the $49.27 per Oaktree class A unit implied value of the merger consideration.

The implied value per Oaktree class A unit of the merger consideration to be received by holders of Oaktree class A units in the initial merger was estimated by Perella Weinberg to be $49.27 as of March 12, 2019, based on the exchange ratio of 1.0770x set forth in the merger agreement, which implies value of the share consideration, comprising 50% of the aggregate merger consideration, of $24.77, and cash consideration, comprising 50% of the aggregate merger consideration, of $24.50.

Although the selected companies were used for comparison purposes, no business of any selected company was either identical or directly comparable to Oaktree’s business. Accordingly, Perella Weinberg’s comparison of selected companies to Oaktree and analysis of the results of such comparisons was not purely mathematical, but instead necessarily involved complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the relative values of the selected companies and Oaktree.

Precedent Transactions Analysis of Oaktree

Using publicly available information, Perella Weinberg reviewed the terms of selected precedent transactions, referred to as “Selected Precedent Transactions,” involving companies that operated in the alternative asset management industry. Perella Weinberg selected these transactions in the exercise of its professional judgment and experience because Perella Weinberg deemed them to be most similar in size, scope and impact on the industry to Oaktree or otherwise relevant to the initial merger.

For each of the Selected Precedent Transactions, based on publicly available information, Perella Weinberg calculated and compared the equity purchase price in the Selected Precedent Transaction as a multiple of the target company’s earnings for the last twelve months of information actually available, or “Price/Earnings.”

Perella Weinberg reviewed the following precedent transactions:

 

Transaction
Announcement Date

   Acquiror    Target

February 2017

   SoftBank Group Corp.    Fortress Investment Group LLC

August 2016

   F.A.B. Partners    CIFC LLC

July 2015

   Ares Management, L.P.    Kayne Anderson Capital Advisors

 

63


Table of Contents

Perella Weinberg applied the Price/Earnings observed in the Selected Precedent Transactions, which ranged from 10.7x – 13.0x, to Oaktree’s 2018 reported DEPS for the fiscal year ended December 31, 2018 of $3.61 to derive an implied per unit reference range for Oaktree class A units of approximately $38.53 to $46.93 and compared that to the $49.27 per Oaktree class A unit implied value of the merger consideration.

Although the Selected Precedent Transactions were used for comparison purposes, none of the Selected Precedent Transactions nor the companies involved in them was either identical or directly comparable to the initial merger or Oaktree.

Discounted Cash Flow Analysis of Oaktree

Perella Weinberg performed a discounted cash flow analysis based on the Oaktree Forecasts by:

 

   

calculating the estimated present value as of March 31, 2019 of the estimated standalone unlevered free cash flows (calculated by Perella Weinberg based on information provided by Oaktree as fee-related earnings, less equity-based compensation, plus net incentive income, less cash taxes, plus depreciation and amortization, less capital expenditures, less changes in net working capital, subject to certain adjustments) that Oaktree could generate during the period from April 1, 2019 through December 31, 2023 using discount rates ranging from 9.0% to 10.5% based on estimates of the weighted-average cost of capital of Oaktree utilizing the Capital Asset Pricing Model, referred to as “CAPM,” and the other factors described below, and

 

   

adding terminal values of fee-related earnings and other cash flows (other than net performance fees) assuming terminal fee related earnings multiples ranging from 11.5x to 15.5x and terminal values of net performance fees assuming terminal net performance fee multiples ranging from 5.75x to 7.75x, such multiples being 50% of those used for purposes of fee-related earnings. These terminal values were discounted using discount rates ranging from 9.0% to 10.5%.

The terminal multiples were applied to the average of estimated pre-tax fee related earnings and the average of estimated pre-tax net performance fees, respectively, over fiscal years 2021, 2022 and 2023, to normalize for the uniquely cyclical nature of Oaktree’s business (as opposed to the more linear growth trajectory of Brookfield’s business).

The 9.0% to 10.5% range of discount rates was selected by Perella Weinberg based on its professional judgment and by application of the CAPM, which takes into account certain company-specific inputs, including Oaktree’s target capital structure weightings, the cost of long-term debt, applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally.

From the range of implied enterprise values, Perella Weinberg derived ranges of implied equity values for Oaktree. To calculate the implied equity value from the implied enterprise value, Perella Weinberg added the book value of corporate investments projected at March 31, 2019, based on the Oaktree Forecasts, and accounted for the cash, debt, and preferred equity balances projected at March 31, 2019, based on the Oaktree Forecasts. For purposes of these analyses, Perella Weinberg calculated implied value per unit by dividing the implied equity value by the fully diluted number of Oaktree class A units estimated by Oaktree’s management to be outstanding at March 31, 2019. These analyses indicated a reference range of implied equity values per Oaktree class A unit of $41.87 to $51.54, compared to the $49.27 per Oaktree class A unit implied value of the merger consideration.

Brookfield Standalone Valuation

Selected Publicly Traded Companies Analysis of Brookfield

Perella Weinberg reviewed and compared certain financial information for Brookfield to corresponding financial information, ratios and public market multiples for certain publicly held companies in the alternative asset

 

64


Table of Contents

management industry. Although none of the following companies are identical to Brookfield, Perella Weinberg selected these companies because they had publicly traded equity securities and were deemed to be similar to Brookfield in one or more respects, including operating in the alternative asset management industry.

Brookfield Selected Publicly Traded Companies

 

   

Apollo Global Management, LLC

 

   

Ares Management Corporation

 

   

The Blackstone Group L.P.

 

   

The Carlyle Group L.P.

 

   

KKR & Co. Inc.

For each of the selected companies, Perella Weinberg calculated the company’s enterprise value attributable to fee related earnings and net incentive earnings (i.e., excluding net asset value of corporate investments) as of March 12, 2019 as a multiple of its estimated 2019 and 2020 after-tax fee related earnings, referred to as its “FRE multiple,” and net incentive earnings, referred to as its “NI multiple,” based on consensus third party research estimates for forecasted information compiled by Perella Weinberg. For purposes of such analysis, Perella Weinberg assumed a two to one ratio of FRE multiple to NI multiple utilizing its professional judgment and experiences.

Using third party research estimates for the selected companies, Perella Weinberg observed that the pre-tax FRE multiples for the selected companies ranged from 7.3x – 14.6x for 2019 and 6.7x – 12.6x for 2020 (implying pre-tax NI multiple ranges of 3.6x – 7.3x for 2019 and 3.3x – 6.3x for 2020 based on the assumed two to one ratio of FRE multiple to NI multiple). Based on Perella Weinberg’s analyses of the various selected publicly traded companies and on professional judgments and adjustments made by Perella Weinberg (including adjusting implied pre-tax multiples of the selected companies to account for Brookfield’s estimated effective tax rate), Perella Weinberg selected (i) representative ranges of multiples of 11.4x – 15.4x for Brookfield’s estimated 2019 after-tax fee related earnings and 5.7x – 7.7x for Brookfield’s estimated 2019 after-tax net generated carried interest to apply to Brookfield’s estimated 2019 after-tax fee related earnings and net generated carried interest, and (ii) representative ranges of multiples of 9.3x – 13.3x for Brookfield’s estimated 2020 after-tax fee related earnings and 4.7x – 6.7x for Brookfield’s estimated 2020 after-tax net generated carried interest to apply to Brookfield’s estimated 2020 after-tax fee related earnings and net generated carried interest. To calculate the range of implied equity values from the range of implied enterprise values, Perella Weinberg then added the market value of Brookfield’s ownership stakes in listed partnerships and other listed investments as of March 12, 2019 (with the exception that the value of IFRS invested capital for the Brookfield Property Partners L.P. ownership stake as of December 31, 2018 was used to derive the high end of the reference ranges to account for the discrepancy between IFRS book value and market value) and the IFRS book value of unlisted investments as of December 31, 2018. In addition, Perella Weinberg accounted for the cash, debt, and preferred equity balances as of December 31, 2018 to derive the implied equity value. The aforementioned analysis resulted in implied reference ranges per Brookfield class A share of $43.55 to $54.93 based on Brookfield’s estimated 2019 after-tax fee related earnings and net generated carried interest and $41.57 to $53.52 based on Brookfield’s estimated 2020 after-tax fee related earnings and net generated carried interest. Perella Weinberg compared these ranges to the $45.99 closing market price per share of Brookfield class A shares on March 12, 2019.

Although the selected companies were used for comparison purposes, no business of any selected company was either identical or directly comparable to Brookfield’s business. Accordingly, Perella Weinberg’s comparison of selected companies to Brookfield and analysis of the results of such comparisons was not purely mathematical, but instead necessarily involved complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the relative values of the selected companies and Brookfield.

 

65


Table of Contents

Discounted Cash Flow Analysis of Brookfield

Perella Weinberg performed a discounted cash flow analysis based on the Brookfield Forecasts by:

 

   

calculating the estimated present value as of March 31, 2019 of the estimated standalone unlevered free cash flows (calculated as after-tax fee-related earnings, plus after-tax net realized carried interest, plus depreciation and amortization, less capital expenditures, less changes in net working capital) that Brookfield could generate during the period from April 1, 2019 through December 31, 2023 using discount rates ranging from 9.0% to 10.5% based on estimates of the weighted-average cost of capital of Brookfield utilizing the CAPM and the other factors described below, and

 

   

adding terminal values of fee-related earnings and other cash flows (other than net performance fees) assuming terminal fee related earnings multiples ranging from 11.5x to 15.5x and terminal values of net performance fees assuming terminal net incentive earnings multiples ranging from 5.75x to 7.75x, such multiples being 50% of those used for purposes of fee-related earnings. These terminal values were discounted using discount rates ranging from 9.0% to 10.5%.

The 9.0% to 10.5% range of discount rates was selected by Perella Weinberg based on its professional judgment and by application of the CAPM, which takes into account certain company-specific inputs, including Brookfield’s target capital structure weightings, the cost of long-term debt, applicable marginal cash tax rate and a beta for the company, as well as certain financial metrics for the United States financial markets generally.

From the range of implied enterprise values, Perella derived ranges of implied equity values for Brookfield. To calculate the implied equity value from the implied enterprise value, Perella Weinberg then added the book value of invested capital projected at March 31, 2019, based on the Brookfield Forecasts (as adjusted to reflect the lower market value of the Brookfield Property Partners L.P. ownership stake), and accounted for the cash, debt, and preferred equity balances projected at March 31, 2019, based on the Brookfield Forecasts. For purposes of these analyses, Perella Weinberg calculated implied value per unit by dividing the implied equity value by the fully diluted number of Brookfield class A shares. These analyses indicated a reference range of implied equity values per Brookfield class A share of $52.33 to $62.17 compared to the $45.99 closing market price per Brookfield class A share on the NYSE on March 12, 2019.

Other Analyses

The analyses and data described below were presented to the Oaktree board for informational purposes only and did not provide the basis for, and were not otherwise material to, the rendering of Perella Weinberg’s opinion.

Historical Unit Trading of Oaktree

Perella Weinberg reviewed the historical trading price per Oaktree class A units for the 52-week period ending on March 12, 2019, the last trading day prior to the day on which Oaktree and Brookfield publicly announced the mergers. Perella Weinberg noted that, during this 52-week period, the range of trading market prices per Oaktree class A unit was $38.65 to $44.65, compared to the $49.27 per Oaktree class A unit implied value of the merger consideration.

Equity Research Analyst Price Targets of Oaktree

Perella Weinberg reviewed and analyzed the most recent publicly available research analyst one-year price targets for Oaktree class A units prepared and published by selected equity research analysts since February 5, 2019, the date of publication of Oaktree’s financial results for fiscal year 2018. Perella Weinberg noted that the range of recent equity analyst one-year price targets for Oaktree class A units during that period was $41.00 to $51.00 per Oaktree class A unit, with a median one-year price target of $44.00. Perella Weinberg then discounted these equity research analyst one-year price targets for Oaktree class A units by applying a 9.6% cost of equity,

 

66


Table of Contents

which was the median cost of equity calculated based on the CAPM. Perella Weinberg noted that this implied reference range of discounted equity research analyst one-year price targets for Oaktree class A units was approximately $37.40 to $46.52 per Oaktree class A unit compared to the $49.27 per Oaktree class A unit implied value of the merger consideration.

The public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for Oaktree class A units. Further, these estimates are subject to uncertainties, including the future financial performance of Oaktree and future financial market conditions.

Historical Stock Trading of Brookfield

Perella Weinberg also reviewed the historical trading price per share of Brookfield class A shares for the 52-week period ending on March 12, 2019, the last trading day prior to the day on which Oaktree and Brookfield publicly announced the mergers. Perella Weinberg noted that, during this 52-week period, the range of trading market prices per share of Brookfield class A shares was $36.58 to $46.18 compared to the $45.99 closing market price per share of Brookfield class A shares on March 12, 2019.

Equity Research Analyst Price Targets of Brookfield

Perella Weinberg also reviewed and analyzed the most recent publicly available research analyst one-year price targets for Brookfield class A shares prepared and published by selected equity research analysts since February 14, 2019, the date of publication of Brookfield’s financial results for fiscal year 2018. Perella Weinberg noted that the range of recent equity analyst one-year price targets for Brookfield class A shares during that period was $48.00 to $62.00 per share, with a median one-year price target of $53.00. Perella Weinberg then discounted these equity research analyst one-year price targets for Brookfield class A shares by applying a 9.9% cost of equity, which was the median cost of equity calculated based on the CAPM. Perella Weinberg noted that this range of discounted equity research analyst one-year price targets for shares of Brookfield class A shares was approximately $43.66 to $56.39 per share compared to the $45.99 closing market price per share of Brookfield class A shares on March 12, 2019 on the NYSE.

The public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for Brookfield class A shares. Further, these estimates are subject to uncertainties, including the future financial performance of Brookfield and future financial market conditions.

Other Exchange Ratio Analyses

Perella Weinberg also observed that the implied exchange ratio range based on the 52-week trading ranges of Oaktree and Brookfield was, as set forth above, 0.84x – 1.22x and the implied exchange ratio range based on the analyst price targets of Oaktree and Brookfield was, as set forth above, 0.66x – 1.07x.

In addition, Perella Weinberg also observed that the implied exchange ratio based on the March 12, 2019 closing prices of each of the Oaktree class A units and Brookfield class A shares on the NYSE was 0.95x.

Precedent Premia Analysis

Using publicly available information from Dealogic, Perella Weinberg reviewed the premiums paid in selected acquisitions of a minority interest and acquisitions of remaining interest with transaction values between $1 billion and $8 billion in North America since January 1, 2013. For each of the transactions, based on publicly available information, Perella Weinberg calculated the premiums of the offer price in the transactions to the target company’s closing stock price one month, one week and 1 day prior to the announcement of the

 

67


Table of Contents

transaction. Perella Weinberg then analyzed the first quartile high, median and third quartile low for these transactions. The results of these analyses are summarized in the tables below.

Precedent Acquisitions of Minority Interest

 

Time Period Prior to Announcement:

   75th
Percentile
    Median     25th
Percentile
 

1 day

     15.4     (0.1 %)      (2.5 %) 

1 week

     12.2     6.7     (1.4 %) 

1 month

     23.2     8.2     0.2

Precedent Acquisitions of Remaining Interest

 

Time Period Prior to Announcement:

   75th
Percentile
    Median     25th
Percentile
 

1 day

     16.1     (0.0 %)      (2.8 %) 

1 week

     14.4     0.5     (1.9 %) 

1 month

     19.1     8.5     (1.3 %) 

Perella Weinberg noted that based on the $49.27 per Oaktree class A units implied value of the merger consideration, the premium paid as compared to the closing price of Oaktree class A units on March 12, 2019 was 12.4% (on a combined cash-and share-consideration basis).

Miscellaneous

The preparation of a fairness opinion is a complex process and is not necessarily susceptible to partial analysis or summary description. Selecting portions of the analyses or of the summary set forth herein, without considering the analyses or the summary as a whole, could create an incomplete view of the processes underlying Perella Weinberg’s opinion. In arriving at its fairness determination, Perella Weinberg considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered. Rather, Perella Weinberg made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. No company or transaction used in the analyses described herein as a comparison is directly comparable to Oaktree, Brookfield or the initial merger.

Perella Weinberg prepared the analyses described herein for purposes of providing its opinion to the Oaktree board as to the fairness, from a financial point of view, as of the date of such opinion, of the merger consideration to be received by holders of Oaktree class A units (other than excluded holders) pursuant to the merger agreement. These analyses do not purport to be appraisals or necessarily reflect the prices at which businesses or securities actually may be sold. Perella Weinberg’s analyses were based in part upon the Oaktree Forecasts, the Brookfield Forecasts, the Public Forecasts and other third-party research analyst estimates, which are not necessarily indicative of actual future results, and which may be significantly more or less favorable than suggested by Perella Weinberg’s analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties to the merger agreement or their respective advisors, none of Oaktree, Brookfield, Perella Weinberg or any other person assumes responsibility if future results are materially different from those forecasted by Oaktree management, Brookfield management or third parties.

As described above, the opinion of Perella Weinberg to the Oaktree board was one of many factors taken into consideration by the Oaktree board in making its determination to approve the merger agreement. Perella Weinberg was not asked to, and did not, recommend the specific consideration to the Oaktree class A unitholders provided for in the merger agreement, which consideration was determined through arms-length negotiations between the Oaktree board and the special committee, on the one hand, and Brookfield, on the other. Perella Weinberg did not recommend any specific amount of consideration to Oaktree class A unitholders or the Oaktree board or that any specific amount of consideration constituted the only appropriate consideration for the initial merger.

 

68


Table of Contents

Pursuant to the terms of the engagement letter between Perella Weinberg and Oaktree, dated January 30, 2019, Oaktree agreed to pay Perella Weinberg $5 million upon the delivery of Perella Weinberg’s opinion or a determination by Perella Weinberg that it was unable to deliver an opinion containing the conclusion sought by the Oaktree board in the context of the transaction. In addition, Oaktree has agreed to pay Perella Weinberg an additional “Transaction Fee” currently estimated to be approximately $48 million upon the closing of the initial merger, against which the amount paid for delivery of the opinion will be credited. The engagement letter also provides that if the initial merger is not consummated and Oaktree receives compensation pursuant to the termination provisions contained in an agreement relating to the initial merger, referred to as “Reverse Termination Fee,” Oaktree agreed to pay Perella Weinberg a fee equal to the lesser of 50% of the Transaction Fee and 15% of the Reverse Termination Fee. None of the transaction documents contemplates or provides for such Reverse Termination Fee to be payable to Oaktree. In addition, Oaktree agreed to reimburse Perella Weinberg for its reasonable out-of-pocket expenses, including attorneys’ fees and disbursements, and to indemnify Perella Weinberg and related persons for certain liabilities that may arise out of its engagement by Oaktree and the rendering of its opinion.

In the ordinary course of its business activities, Perella Weinberg or its affiliates may at any time hold long or short positions, and may trade or otherwise effect transactions, for its own account or the accounts of customers or clients, in debt or equity or other securities (or related derivative securities) or financial instruments (including bank loans or other obligations) of Oaktree or Brookfield or any of their respective affiliates. Other than in connection with its engagement as financial advisor to Oaktree in connection with the initial merger, in 2018, Perella Weinberg was engaged as financial advisor to Oaktree and other first lien lenders to Proserv Global LLP in connection with a debt-for-equity exchange for which it received customary compensation from Proserv Global LLP. Other than the foregoing, Perella Weinberg and its corporate advisory affiliates have not been engaged by either Oaktree or Brookfield to provide M&A advisory, capital markets advisory or restructuring advisory services during the two year period preceding the date of its opinion; however, Perella Weinberg and its affiliates may in the future provide investment banking and other financial services to Oaktree or Brookfield and their respective affiliates and in the future may receive compensation for the rendering of such services.

Opinion of Special Committee’s Financial Advisor

The special committee retained Sandler O’Neill to act as its financial advisor in connection with the special committee’s consideration of a possible business combination involving Oaktree and Brookfield. The special committee selected Sandler O’Neill as its financial advisor based upon Sandler O’Neill’s reputation and experience as a nationally recognized investment banking firm whose principal business specialty is financial services companies. As part of its investment banking business, Sandler O’Neill is regularly engaged in the valuation of financial services companies and their securities in connection with mergers and acquisitions and other corporate transactions.

Sandler O’Neill acted as financial advisor to the special committee in connection with the proposed initial merger and participated in certain of the negotiations leading to the execution of the merger agreement. At the March 13, 2019 meeting of the special committee, at which the special committee considered the merger agreement and the initial merger, Sandler O’Neill rendered to the special committee its oral opinion, which was subsequently confirmed in writing on March 13, 2019, to the effect that, as of such date, the merger consideration was fair to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those holders of Oaktree class A units who are also equity holders of OCGH and holders of Oaktree restricted units) from a financial point of view. The full text of Sandler O’Neill’s opinion is attached as Annex E to this consent solicitation statement/prospectus. The opinion outlines the procedures followed, assumptions made, matters considered and qualifications and limitations on the review undertaken by Sandler O’Neill in rendering its opinion. The description of the opinion set forth below is qualified in its entirety by reference to the full text of the opinion. Holders of Oaktree class A units are urged to read the entire opinion carefully in connection with their consideration of the proposed initial merger. As used in this section, the OCGH exchange, together with the mergers, is referred to as the “Transaction”.

 

69


Table of Contents

Sandler O’Neill’s opinion speaks only as of the date of the opinion. The opinion was directed to the special committee (in its capacity as such) in connection with its consideration of the merger agreement and the initial merger and does not constitute a recommendation to any unitholder of Oaktree as to how any such unitholder should act with respect to the Transaction, including, without limitation, what election any holder of Oaktree class A units should make regarding the cash consideration, the share consideration or any combination thereof, whether OCGH or any holder of Oaktree class A units should provide a consent to the initial merger or how OCGH or any holder of Oaktree class A units should vote at any meeting of unitholders that may be called to consider and vote upon the approval of the initial merger. Sandler O’Neill’s opinion was directed only to the fairness, from a financial point of view, of the merger consideration to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those holders of Oaktree class A units who are also equity holders of OCGH and holders of Oaktree restricted units) and did not address the underlying business decision of Oaktree to engage in the Transaction, the form or structure of the Transaction or any other transactions contemplated in the merger agreement, the relative merits of the Transaction as compared to any other alternative transactions or business strategies that might exist for Oaktree or the effect of any other transaction in which Oaktree might engage.

In connection with its opinion, Sandler O’Neill reviewed and considered, among other things:

 

   

an execution copy of the merger agreement and certain of the transaction documents referred to therein;

 

   

certain publicly available financial statements and other historical financial information of Oaktree, Brookfield and certain of their affiliates that Sandler O’Neill deemed relevant;

 

   

internal financial projections for Oaktree for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Oaktree;

 

   

internal financial projections for Brookfield for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Brookfield;

 

   

the publicly reported historical price and trading activity for Oaktree class A units and Brookfield class A shares, including a comparison of certain stock market information for Oaktree class A units and Brookfield class A shares and certain stock indices as well as publicly available information for certain other similar companies, the securities of which were publicly traded;

 

   

a comparison of certain financial information for Oaktree and Brookfield with similar companies for which information was publicly available;

 

   

the financial terms of certain recent business combinations in the asset management industry, to the extent publicly available;

 

   

the current market environment generally and the asset management industry environment in particular; and

 

   

such other information, financial studies, analyses and investigations and financial, economic and market criteria as Sandler O’Neill considered relevant.

Sandler O’Neill also discussed with certain members of the senior management of Oaktree the business, financial condition, results of operations and prospects of Oaktree and held similar discussions with certain members of the senior management of Brookfield regarding the business, financial condition, results of operations and prospects of Brookfield. In addition, Sandler O’Neill took into account certain financial aspects of the treatment of OCGH units in connection with the Transaction that Sandler O’Neill deemed relevant.

In performing its review, Sandler O’Neill relied upon the accuracy and completeness of all of the financial and other information that was available to and reviewed by Sandler O’Neill from public sources, that was provided

 

70


Table of Contents

to Sandler O’Neill by Oaktree or Brookfield or their respective representatives or that was otherwise reviewed by Sandler O’Neill, and Sandler O’Neill assumed such accuracy and completeness for purposes of rendering its opinion without any independent verification or investigation. Sandler O’Neill further relied on the assurances of the respective senior managements of Oaktree and Brookfield that they were not aware of any facts or circumstances that would have made any of such information inaccurate or misleading. Sandler O’Neill was not asked to undertake, and did not undertake, an independent verification of any of such information, and Sandler O’Neill did not assume any responsibility or liability for the accuracy or completeness of such information. Sandler O’Neill did not make an independent evaluation or perform an appraisal of the specific assets, the collateral securing assets or the liabilities (contingent or otherwise) of Oaktree or Brookfield or any of their respective subsidiaries or affiliates, nor was Sandler O’Neill furnished with any such evaluations or appraisals. Sandler O’Neill rendered no opinion or evaluation on the collectability of any assets or the future performance of any loans or other investments of Oaktree or Brookfield or any of their respective subsidiaries or affiliates. Sandler O’Neill did not review any individual credit files relating to Oaktree or Brookfield or any of their respective subsidiaries or affiliates.

In preparing its analyses, Sandler O’Neill used internal financial projections for Oaktree for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Oaktree, as well as internal financial projections for Brookfield for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Brookfield. With respect to the foregoing information, the respective senior managements of Oaktree and Brookfield confirmed to Sandler O’Neill that such information reflected the best currently available estimates and judgments of those respective senior managements as to the future financial performance of Oaktree and Brookfield, respectively. Sandler O’Neill assumed that the future financial performance reflected in all of the foregoing information used by Sandler O’Neill would be achieved, and Sandler O’Neill expressed no opinion as to such information, or the assumptions on which such information was based. Sandler O’Neill also assumed that there was no material change in the respective assets, financial condition, results of operations, businesses or prospects of Oaktree or Brookfield or any of their respective subsidiaries or affiliates since the date of the most recent financial statements made available to Sandler O’Neill. Sandler O’Neill assumed in all respects material to its analyses that Oaktree and Brookfield would remain as going concerns for all periods relevant to its analyses.

Sandler O’Neill assumed, with the special committee’s consent, that Oaktree class A units, SellerCo units (giving effect to the OCGH exchange) and OCGH limited partnership units were economically equivalent in all respects material to Sandler O’Neill’s analyses. Sandler O’Neill also assumed, with the special committee’s consent, that (i) each of the parties to the merger agreement would comply in all material respects with all material terms and conditions of the merger agreement and all related agreements, that all of the representations and warranties contained in such agreements were true and correct in all material respects, that each of the parties to such agreements would perform in all material respects all of the covenants and other obligations required to be performed by such party under such agreements and that the conditions precedent in such agreements were not and would not be waived, (ii) in the course of obtaining the necessary regulatory or third party approvals, consents and releases with respect to the Transaction, no delay, limitation, restriction or condition would be imposed that would have an adverse effect on Oaktree, Brookfield, the Transaction or any related transactions, and (iii) the Transaction and any related transactions (including, without limitation, the permitted distributions on Oaktree class A units to be paid by Oaktree pursuant to the merger agreement) would be consummated in accordance with the terms of the merger agreement without any waiver, modification or amendment of any material term, condition or agreement thereof and in compliance with all applicable laws and other requirements. Finally, with the special committee’s consent, Sandler O’Neill relied upon the advice that Oaktree (including the special committee) received from its legal, accounting and tax advisors as to all legal, accounting and tax matters relating to the Transaction and the other transactions contemplated by the merger agreement. Sandler O’Neill expressed no opinion as to any such matters.

Sandler O’Neill’s opinion was necessarily based on financial, regulatory, economic, market and other conditions as in effect on, and the information made available to Sandler O’Neill as of, the date of its opinion. Events

 

71


Table of Contents

occurring after the date of Sandler O’Neill’s opinion could materially affect the opinion. Sandler O’Neill has not undertaken to update, revise, reaffirm or withdraw its opinion or otherwise comment upon events occurring after the date of its opinion. Sandler O’Neill expressed no opinion as to the trading values of Oaktree class A units or Brookfield class A shares at any time or what the value of Brookfield class A shares would be once they were actually received by the holders of Oaktree class A units.

Sandler O’Neill’s opinion did not address the allocation of the merger consideration between cash and Brookfield class A shares, the relative fairness of the cash consideration and the share consideration, the relative fairness of the merger consideration and the disparate consideration to be received by holders of Oaktree restricted units or the treatment in the Transaction of the Oaktree restricted units and the Oaktree class B units and Oaktree preferred units. Sandler O’Neill also did not express any opinion as to the fairness of the amount or nature of the compensation to be received in the Transaction by any officer, director or employee of Oaktree, Brookfield or any other party to the Transaction, or any class of such persons, if any, relative to the compensation to be received in the Transaction or any related transaction by any other unitholder. Sandler O’Neill further expressed no opinion as to any matters related to OCGH, SellerCo or Seller MergerCo, including, without limitation, any term or aspect of the support agreement, the exchange agreement and any other agreements to be entered into in connection with the Transaction or the fairness of the subsequent merger, or the consideration to be received by holders of SellerCo units in the subsequent merger, relative to the merger consideration. Sandler O’Neill’s opinion was approved by Sandler O’Neill’s fairness opinion committee.

In rendering its opinion, Sandler O’Neill performed a variety of financial analyses. The summary below is not a complete description of all the analyses underlying Sandler O’Neill’s opinion or the presentation made by Sandler O’Neill to the special committee, but is a summary of the material analyses performed and presented by Sandler O’Neill. The summary includes information presented in tabular format. In order to fully understand the financial analyses, these tables must be read together with the accompanying text. The tables alone do not constitute a complete description of the financial analyses. The preparation of a fairness opinion is a complex process involving subjective judgments as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances. The process, therefore, is not necessarily susceptible to a partial analysis or summary description. Sandler O’Neill believes that its analyses must be considered as a whole and that selecting portions of the factors and analyses to be considered without considering all factors and analyses, or attempting to ascribe relative weights to some or all such factors and analyses, could create an incomplete view of the evaluation process underlying its opinion. Also, no company included in Sandler O’Neill’s comparative analyses described below is identical to Oaktree or Brookfield and no transaction is identical to the Transaction. Accordingly, an analysis of comparable companies or transactions involves complex considerations and judgments concerning differences in financial and operating characteristics of the companies and other factors that could affect the public trading values or transaction values, as the case may be, of Oaktree and Brookfield and the companies to which they were compared. In arriving at its opinion, Sandler O’Neill did not attribute any particular weight to any analysis or factor that it considered. Rather, Sandler O’Neill made qualitative judgments as to the significance and relevance of each analysis and factor. Sandler O’Neill did not form an opinion as to whether any individual analysis or factor (positive or negative) considered in isolation supported or failed to support its opinion; rather, Sandler O’Neill made its determination as to the fairness of the merger consideration to the holders of Oaktree class A units on the basis of its experience and professional judgment after considering the results of all its analyses taken as a whole.

In performing its analyses, Sandler O’Neill also made numerous assumptions with respect to industry performance, business and economic conditions and various other matters, many of which cannot be predicted and are beyond the control of Oaktree, Brookfield and Sandler O’Neill. The analyses performed by Sandler O’Neill are not necessarily indicative of actual values or future results, both of which may be significantly more or less favorable than suggested by such analyses. Sandler O’Neill prepared its analyses solely for purposes of rendering its opinion and provided such analyses to the special committee at its March 13, 2019 meeting. Estimates of the values of companies do not purport to be appraisals or necessarily reflect the prices at which companies or their securities may actually be sold. Such estimates are inherently subject to uncertainty and actual

 

72


Table of Contents

values may be materially different. Accordingly, Sandler O’Neill’s analyses do not necessarily reflect the value of Oaktree class A units or Brookfield class A shares or the prices at which Oaktree class A units or Brookfield class A shares may be sold at any time. The analyses of Sandler O’Neill and its opinion were among a number of factors taken into consideration by the special committee in making its determination to recommend that the Oaktree board adopt resolutions approving the initial merger and the analyses described below should not be viewed as determinative of the decision of the special committee, the Oaktree board or Oaktree’s management with respect to the fairness of the initial merger.

Oaktree Comparable Company Analysis

Sandler O’Neill used publicly available information to compare selected financial information for Oaktree with the following three publicly-traded U.S. alternative asset managers selected by Sandler O’Neill that use distributable earnings as a primary reporting basis:

 

   

Blackstone Group L.P.

 

   

Carlyle Group L.P.

 

   

KKR & Co. Inc.

The analysis compared selected market performance data for Oaktree and the comparable companies based on market prices as of March 12, 2019, consensus research analysts revenue and distributable earnings per share estimates for the calendar years 2019 and 2020, and publicly available reported assets under management as of December 31, 2018. The table below sets forth the data for Oaktree and the mean, low and high data for the comparable companies.

 

     Oaktree      Comparable
Companies
Mean
     Comparable
Companies
Low
     Comparable
Companies
High
 

Enterprise Value / 2019 Estimated Revenue

     4.5x        4.8x        2.9x        5.9x  

Enterprise Value / 2020 Estimated Revenue

     4.2x        4.2x        2.4x        5.3x  

Price / 2019 Estimated Distributable Earnings per Share

     12.9x        11.5x        9.0x        13.0x  

Price / 2020 Estimated Distributable Earnings per Share

     11.5x        9.7x        6.8x        12.0x  

Enterprise Value / AUM

     5.9%        7.4%        3.2%        10.1%  

Sandler O’Neill then derived the following implied values per Oaktree class A unit by applying the above low and high price to calendar years 2019 and 2020 estimated distributable earnings per share multiples of the comparable companies to Oaktree’s estimated distributable earnings per Oaktree class A unit for the calendar years 2019 and 2020 based on consensus research analysts estimates for Oaktree:

 

     Implied Value per
Oaktree class A
Unit Based on:
 
     Low      High  

Price / 2019 Estimated Distributable Earnings per Share

   $ 30.59      $ 44.11  

Price / 2020 Estimated Distributable Earnings per Share

   $ 26.17      $ 45.76  

Oaktree Sum of the Parts Analysis

Sandler O’Neill conducted a sum of the parts analysis that estimated the value per Oaktree class A unit by applying different valuation multiples to projected calendar year 2019 fee-related earnings (less equity-based compensation) and projected calendar year 2019 incentives created attributable to Oaktree, as provided by the senior management of Oaktree. Sandler O’Neill applied fee-related earnings multiples ranging from 14.0x to 18.0x and incentives created multiples ranging from 6.0x to 8.0x. The analysis also reflected the reported values as of December 31, 2018 of the corporate investments, deferred tax assets, liabilities due to affiliates and net debt

 

73


Table of Contents

for Oaktree and its operating subsidiaries based on Oaktree’s latest public filings (adjusted, where applicable, for the OCGH non-controlling interest and, in the case of corporate investments, to exclude the carrying value for investments in DoubleLine Capital LP and its affiliates) and the tax-affected accrued net carry attributable to Oaktree (discounted 25% by Sandler O’Neill) provided by the senior management of Oaktree. As illustrated in the following table, the analysis indicated an imputed range of values per unit of Oaktree class A units of $40.17 to $48.15.

 

            Fee-Related Earnings Multiple:  

Incentives
Created Multiple

   14.0x      15.0x      16.0x      17.0x      18.0x  

6.0x

   $ 40.17      $ 41.20      $ 42.23      $ 43.25      $ 44.28  

6.5x

   $ 41.14      $ 42.17      $ 43.19      $ 44.22      $ 45.25  

7.0x

   $ 42.10      $ 43.13      $ 44.16      $ 45.19      $ 46.21  

7.5x

   $ 43.07      $ 44.10      $ 45.12      $ 46.15      $ 47.18  

8.0x

   $ 44.04      $ 45.06      $ 46.09      $ 47.12      $ 48.15  

Oaktree Discounted Cash Flow Analysis

Sandler O’Neill performed a discounted cash flow analysis that estimated the net present value per Oaktree class A unit assuming Oaktree performed in accordance with internal financial projections for Oaktree for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Oaktree. To approximate the terminal value of Oaktree class A units at December 31, 2023, Sandler O’Neill applied price to 2023 distributable earnings-class A multiples ranging from 10.0x to 14.0x. The terminal values and the implied projected unlevered free cash flows-class A (as calculated for purposes of the discounted cash flow analysis from internal financial projections for Oaktree) for the period of the projections were then discounted to present values using different discount rates ranging from 10.0% to 14.0% which were chosen to reflect different assumptions regarding required rates of return of holders or prospective buyers of Oaktree class A units and which took into account a capital asset pricing model-based calculated weighted average cost of capital estimate for Oaktree of 11.6%. The analysis also reflected the net debt as of December 31, 2018 for Oaktree and its operating subsidiaries based on Oaktree’s latest public filings (adjusted for the OCGH non-controlling interest). As illustrated in the following table, the analysis indicated an imputed range of values per unit of Oaktree class A units of $37.58 to $56.73.

 

            Terminal Multiple  

Discount Rate

   10.0x      11.0x      12.0x      13.0x      14.0x  

10.0%

   $ 44.12      $ 47.27      $ 50.43      $ 53.58      $ 56.73  

11.0%

   $ 42.36      $ 45.37      $ 48.38      $ 51.40      $ 54.41  

12.0%

   $ 40.68      $ 43.56      $ 46.44      $ 49.33      $ 52.21  

13.0%

   $ 30.09      $ 41.85      $ 44.60      $ 47.36      $ 50.12  

14.0%

   $ 37.58      $ 40.22      $ 42.85      $ 45.49      $ 48.13  

 

74


Table of Contents

Sandler O’Neill also considered and discussed with the special committee how this discounted cash flow analysis would be affected by variations with respect to distributable earnings per Oaktree class A unit. To illustrate this impact, Sandler O’Neill performed a similar analysis assuming Oaktree’s distributable earnings per Oaktree class A unit varied from 20% above projections to 20% below projections. As set forth in the following table, the analysis indicated an imputed range of values per unit of Oaktree class A units of $34.06 to $60.74, applying the discount rates ranging from 10.0% to 14.0% referred to above and a price to 2023 distributable earnings terminal multiple of 12.0x.

 

            Discount Rate  

Annual Budget
Variance

   10.0%      11.0%      12.0%      13.0%      14.0%  

(20.0%)

   $ 40.11      $ 38.48      $ 36.93      $ 35.45      $ 34.06  

(10.0%)

   $ 45.27      $ 43.43      $ 41.69      $ 40.03      $ 38.46  

0.0%

   $ 50.43      $ 48.38      $ 46.44      $ 44.60      $ 42.85  

10.0%

   $ 55.58      $ 53.34      $ 51.20      $ 49.18      $ 47.25  

20.0%

   $ 60.74      $ 58.29      $ 55.96      $ 53.75      $ 51.65  

In addition, as set forth in the following table, the analysis indicated an imputed range of values per Oaktree class A unit of $32.84 to $63.92, applying the price to 2023 distributable earnings terminal multiples ranging from 10.0x to 14.0x referred to above and a discount rate of 11.6%.

 

            Terminal Multiple  

Annual Budget
Variance

   10.0x      11.0x      12.0x      13.0x      14.0x  

(20.0%)

   $ 32.84      $ 35.19      $ 37.54      $ 39.88      $ 42.23  

(10.0%)

   $ 37.09      $ 39.73      $ 42.37      $ 45.01      $ 47.65  

0.0%

   $ 41.34      $ 44.28      $ 47.21      $ 50.14      $ 53.07  

10.0%

   $ 45.59      $ 48.82      $ 52.04      $ 55.27      $ 58.50  

20.0%

   $ 49.84      $ 53.36      $ 56.88      $ 60.40      $ 63.92  

Sandler O’Neill noted that the discounted cash flow analysis is a widely used valuation methodology, but the results of such methodology are highly dependent upon the numerous assumptions that must be made, and the results thereof are not necessarily indicative of actual values or future results.

Precedent Transactions Analysis

Sandler O’Neill reviewed the following eight selected mergers and acquisitions announced between January 1, 2013 and March 12, 2019 that involved asset managers with greater than $10 billion in assets under management and material U.S. operations and that had publicly disclosed deal values and financial information which Sandler O’Neill considered relevant:

Buyer/Target

 

Date

   Buyer    Target

2/14/2017

  

Softbank Group Corporation

  

Fortress Investment Group

12/16/2016

  

Virtus Investment Partners

  

RidgeWorth Holdings

12/12/2016

  

Amundi Group

  

Pioneer Investments

10/3/2016

  

Henderson Group

  

Janus Capital Group

8/19/2016

  

F.A.B. Partners

  

CIFC LLC

6/19/2014

  

Man Group plc

  

Numeric Holdings

4/14/2014

  

TIAA-CREF

  

Nuveen Investments

2/21/2013

  

Crestview Partners

  

Victory Capital Management

 

75


Table of Contents

Using the latest publicly available information prior to the announcement of the relevant transaction, Sandler O’Neill reviewed the following transaction metrics: transaction price to last 12 months (“LTM”) earnings before interest, tax, depreciation and amortization (“EBITDA”), transaction price to LTM revenue and transaction price to assets under management. The table below compares the median, mean, low and high metrics of the selected transactions to the indicated transaction metrics for the proposed transactions based on an implied transaction price for the merger of $49.00 per Oaktree class A unit and using historical financial information for Oaktree as of or for the period ended December 31, 2018:

 

     Oaktree/
Brookfield
Merger
    Selected
Transactions
Median
     Selected
Transactions
Mean
     Selected
Transactions
Low
     Selected
Transactions
High
 

Transaction Price / LTM EBITDA

     12.9x (1)      10.1x        9.6x        5.7x        12.7x  

Transaction Price / LTM Revenue

     5.5x (2)      3.4x        3.5x        2.2x        5.8x  

Transaction Price / AUM

     6.6%       1.7%        2.1%        1.1%        4.8%  

 

(1)

Reflected distributable earnings revenues, less compensation and benefits, less incentive income compensation, less equity-based compensation, less general and administrative expenses, plus interest income, plus other income/(expense).

(2)

Reflected distributable earnings revenues.

Sandler O’Neill then derived the following implied values per Oaktree class A unit by applying the above low and high transaction price to LTM EBITDA and LTM revenue multiples of the selected transactions to Oaktree’s calendar year 2018 EBITDA and distributable earnings revenue:

 

     Implied Value per 
Oaktree class A Unit

Based on:
 
        Low            High     

Transaction Price / LTM EBITDA

   $ 21.10      $ 48.18  

Transaction Price / LTM Revenue

   $ 19.11      $ 52.16  

Premiums Paid Analysis

Sandler O’Neill reviewed the premiums paid relative to the closing stock prices of the acquired companies in certain publicly disclosed transactions one day, one week and one month prior to public announcement of the relevant transaction in the following two groups of mergers and acquisitions:

 

   

190 publicly announced transactions that closed between January 1, 2016 and March 12, 2019 with announced transaction equity values between $2.0 billion and $5.0 billion, referred to below as the “Mid-Cap Transactions”; and

 

   

31 publicly announced transactions involving acquired companies based in the United States or Canada for less than 50% of the acquired companies’ equity that closed between January 1, 2016 and March 12, 2019 with announced transaction equity values greater than $100 million, referred to below as the “Minority Stake Transactions”.

 

76


Table of Contents

The 25th percentile, median and 75th percentile of premiums paid in the Mid-Cap Transactions and the Minority Stake Transactions and the corresponding premiums paid in the proposed transactions relative to the dividend-adjusted closing Oaktree class A unit prices on March 12, 2019, March 5, 2019 and February 12, 2019 (which are the dates that are one day, one week and one month prior to the execution of the merger agreement, respectively) are indicated in the table below:

 

     Premiums Paid
Based on Closing Stock Price at
    Oaktree/
Brookfield
Merger
 
     25th
Percentile
    Median     75th
Percentile
 

Mid-Cap Transactions

        

1-Day Prior

     9.2     18.3     30.5     11.8

1-Week Prior

     11.2     19.8     30.7     11.0

1-Month Prior

     13.5     24.6     38.7     16.9

Minority Stake Transactions

        

1-Day Prior

     1.9     5.8     25.0     11.8

1-Week Prior

     3.6     9.5     31.5     11.0

1-Month Prior

     3.3     13.8     23.4     16.9

Sandler O’Neill then derived the following implied values per unit of Oaktree class A units by applying the above 25th and 75th percentile one day and one month premiums paid of the Mid-Cap Transactions and the Minority Stake Transactions to the dividend-adjusted closing Oaktree class A unit prices on March 12, 2019 and February 12, 2019, respectively:

 

     Implied Value per
Oaktree class A Unit
Based on:
 
     25th
Percentile
     75th
Percentile
 

Mid-Cap Transactions

     

1-Day Prior

   $ 47.85      $ 57.21  

1-Month Prior

   $ 47.55      $ 58.12  

Minority Stake Transactions

     

1-Day Prior

   $ 44.66      $ 54.79  

1-Month Prior

   $ 43.30      $ 51.71  

Brookfield Comparable Company Analysis

Sandler O’Neill used publicly available information to compare selected financial information for Brookfield with three groups of publicly-traded asset managers selected by Sandler O’Neill. One group consisted of the following eight U.S. alternative asset managers, including Oaktree, referred to below as the “U.S. Alternative Asset Managers”, one group consisted of the following seven Canadian asset managers, referred to below as the “Canadian Asset Managers,” and one group consisted of the following five European alternative asset managers, referred to below as the “European Alternative Asset Managers”:

 

U.S. Alternative Asset Managers:   

Apollo Global Management LLC

  

Ares Management Corporation

Blackstone Group L.P.

  

Carlyle Group L.P.

Hamilton Lane Inc.

  

KKR & Co. Inc.

Oaktree Capital Group LLC

  

Och-Ziff Capital Management Group LLC

 

77


Table of Contents
Canadian Asset Managers:   

AGF Management Ltd.

  

CI Financial Corp.

Fiera Capital Corporation

  

Gluskin Sheff + Associates Inc.

Guardian Capital Advisors L.P.

  

IGM Financial Inc.

Sprott Inc.

  
European Alternative Asset Managers:

3i Group Plc

  

Ashmore Group Plc

Intermediate Capital Group Plc

  

Man Group Plc

Partners Group AG

  

The analysis compared selected market performance data for Brookfield and each of the U.S. Alternative Asset Managers, the Canadian Asset Managers and the European Alternative Asset Managers based on market data as of March 12, 2019, consensus research analysts earnings per share (“EPS”) estimates for the calendar years 2019 and 2020 in the case of the U.S. Alternative Asset Managers, the Canadian Asset Managers and the European Alternative Asset Managers and consensus research analysts funds from operations (“FFO”) per share and core FFO per share estimates for the calendar years 2019 and 2020 in the case of Brookfield. The table below sets forth the applicable data for Brookfield and the high, low, mean and median data for each of the U.S. Alternative Asset Managers, the Canadian Asset Managers and the European Alternative Asset Managers:

 

     FFO      Core FFO  

Brookfield

     

Price / 2019 Estimated FFO per Share

     11.1x        15.4x  

Price / 2020 Estimated FFO per Share

     9.4x        14.4x  

 

    Comparable
Companies
High
    Comparable
Companies
Low
    Comparable
Companies
Mean
    Comparable
Companies
Median
 

U.S. Alternative Asset Managers

       

Price / 2019 Estimated Earnings per Share

    21.5x       4.1x       12.4x       11.7x  

Price / 2020 Estimated Earnings per Share

    20.6x       4.1x       10.9x       10.9x  

Canadian Asset Managers

       

Price / 2019 Estimated Earnings per Share

    27.7x       7.9x       14.1x       10.6x  

Price / 2020 Estimated Earnings per Share

    25.4x       7.4x       13.1x       9.5x  

European Asset Managers

       

Price / 2019 Estimated Earnings per Share

    23.2x       7.5x       14.1x       12.6x  

Price / 2020 Estimated Earnings per Share

    21.3x       7.2x       12.9x       12.8x  

 

78


Table of Contents

Brookfield Sum of the Parts Analysis

Sandler O’Neill conducted a sum of the parts analysis that estimated the value per share of Brookfield class A shares by applying different valuation multiples to Brookfield’s projected calendar year 2019 fee-related earnings and projected calendar year 2019 generated carried interest, as provided by the senior management of Brookfield. Sandler O’Neill applied fee-related earnings multiples ranging from 14.0x to 18.0x and generated carried interest multiples ranging from 6.0x to 8.0x. The analysis also reflected the market value of Brookfield’s economic interest in its four listed partnerships based on unit prices as of March 12, 2019, the reported values as of December 31, 2018 of other listed assets, unlisted assets, working capital and net debt for Brookfield based on its latest public filings, and the accumulated unrealized carried interest, net of Brookfield as of December 31, 2018 (discounted 25% by Sandler O’Neill from its reported value based on Brookfield’s latest public filings). As illustrated in the following table, the analysis indicated an imputed range of values per Brookfield class A share of $48.34 to $54.77.

 

     Fee-Related Earnings Multiple:  

Generated Carried
Interest Multiple

   14.0x      15.0x      16.0x      17.0x      18.0x  

6.0x

   $ 48.34      $ 49.60      $ 50.87      $ 52.14      $ 53.40  

6.5x

   $ 48.68      $ 49.95      $ 51.21      $ 52.48      $ 53.75  

7.0x

   $ 49.02      $ 50.29      $ 51.55      $ 52.82      $ 54.09  

7.5x

   $ 49.36      $ 50.63      $ 51.90      $ 53.16      $ 54.43  

8.0x

   $ 49.70      $ 50.97      $ 52.24      $ 53.51      $ 54.77  

Brookfield Discounted Cash Flow Analysis

Sandler O’Neill performed a discounted cash flow analysis that estimated the net present value per share of Brookfield class A shares assuming Brookfield performed in accordance with internal financial projections for Brookfield for the years ending December 31, 2019 through December 31, 2023, as provided by the senior management of Brookfield. To approximate the terminal value of Brookfield class A shares at December 31, 2023, Sandler O’Neill applied price to 2023 unlevered free cash flows multiples ranging from 10.0x to 14.0x. The terminal values and the implied projected unlevered free cash flows (as calculated for purposes of the discounted cash flow analysis as the sum of fee related earnings and carried interest from internal financial projections for Brookfield) for the period of the projections were then discounted to present values using different discount rates ranging from 8.0% to 12.0% which were chosen to reflect different assumptions regarding required rates of return of holders or prospective buyers of Brookfield class A shares and which took into account a capital asset pricing model-based calculated weighted average cost of capital estimate for Brookfield of 10.7%. The analysis also reflected the market value of Brookfield’s economic interest in its four listed partnerships based on unit prices as of March 12, 2019 and the reported values as of December 31, 2018 of other listed assets, unlisted assets, working capital and net debt for Brookfield based on its latest public filings. As illustrated in the following table, the analysis indicated an imputed range of values per share of Brookfield class A shares of $50.75 to $64.02.

 

     Terminal Multiple  

Discount Rate

   10.0x      11.0x      12.0x      13.0x      14.0x  

8.0%

   $ 55.28      $ 57.47      $ 59.65      $ 61.84      $ 64.02  

9.0%

   $ 54.06      $ 56.14      $ 58.23      $ 60.32      $ 62.40  

10.0%

   $ 52.90      $ 54.89      $ 56.88      $ 58.87      $ 60.87  

11.0%

   $ 51.79      $ 53.70      $ 55.60      $ 57.51      $ 59.41  

12.0%

   $ 50.75      $ 52.57      $ 54.39      $ 56.21      $ 58.03  

Sandler O’Neill also considered and discussed with the special committee how this discounted cash flow analysis would be affected by variations with respect to unlevered free cash flows. To illustrate this impact, Sandler O’Neill performed a similar analysis assuming Brookfield’s unlevered free cash flows varied from 20% above

 

79


Table of Contents

projections to 20% below projections. As set forth in the following table, the analysis indicated an imputed range of values per share of Brookfield class A shares of $48.55 to $66.55, applying the discount rates ranging from 8.0% to 12.0% referred to above and a price to 2023 unlevered free cash flows terminal multiple of 12.0x.

 

     Discount Rate  

Annual Budget
Variance

   8.0%      9.0%      10.0%      11.0%      12.0%  

(20.0%)

   $ 52.76      $ 51.62      $ 50.54      $ 49.52      $ 48.55  

(10.0%)

   $ 56.21      $ 54.93      $ 53.71      $ 52.56      $ 51.47  

0.0%

   $ 59.65      $ 58.23      $ 56.88      $ 55.60      $ 54.39  

10.0%

   $ 63.10      $ 61.53      $ 60.05      $ 58.64      $ 57.31  

20.0%

   $ 66.55      $ 64.84      $ 63.22      $ 61.69      $ 60.23  

In addition, as set forth in the following table, the discounted cash flow analysis indicated an imputed range of values per share of Brookfield class A shares of $46.72 to $66.75, applying the price to 2023 unlevered free cash flows terminal multiples ranging from 10.0x to 14.0x referred to above and a discount rate of 10.7%.

 

     Terminal Multiple  

Annual Budget
Variance

   10.0x      11.0x      12.0x      13.0x      14.0x  

(20.0%)

   $ 46.72      $ 48.27      $ 49.81      $ 51.35      $ 52.90  

(10.0%)

   $ 49.41      $ 51.15      $ 52.89      $ 54.62      $ 56.36  

0.0%

   $ 52.11      $ 54.04      $ 55.97      $ 57.90      $ 59.82  

10.0%

   $ 54.80      $ 56.92      $ 59.04      $ 61.17      $ 63.29  

20.0%

   $ 57.49      $ 59.81      $ 62.12      $ 64.44      $ 66.75  

Sandler O’Neill noted that the discounted cash flow analysis is a widely used valuation methodology, but the results of such methodology are highly dependent upon the numerous assumptions that must be made, and the results thereof are not necessarily indicative of actual values or future results.

Sandler O’Neill’s Relationship

Sandler O’Neill acted as the financial advisor to the special committee in connection with the initial merger and will receive a fee for such services of $4,500,000, which fee is contingent upon the closing of the initial merger. Sandler O’Neill has previously received from Oaktree periodic fees in connection with advising the special committee totaling $900,000 and a $2,000,000 fee for rendering its opinion, which fees will be credited in full against the $4,500,000 transaction fee that is payable to Sandler O’Neill upon the closing of the initial merger. The special committee, in its sole and absolute discretion, may also instruct Oaktree to pay Sandler O’Neill an additional fee of up to $2,000,000 upon, and only in the event of, the closing of the initial merger. Oaktree has also agreed to indemnify Sandler O’Neill against certain claims and liabilities arising out of Sandler O’Neill’s engagement and to reimburse Sandler O’Neill for certain of its out-of-pocket expenses incurred in connection with Sandler O’Neill’s engagement. In connection with its engagement, Sandler O’Neill was not asked to, and did not, solicit indications of interest in a potential transaction with Oaktree from other parties.

Sandler O’Neill did not provide any other investment banking services to Oaktree or provide any investment banking services to Brookfield in the two years preceding the date of its opinion. In the ordinary course of Sandler O’Neill’s business as a broker-dealer, Sandler O’Neill may purchase securities from and sell securities to Oaktree, Brookfield and their respective affiliates. Sandler O’Neill may also actively trade the equity and debt securities of Oaktree, Brookfield and their respective affiliates for its own account and for the accounts of Sandler O’Neill customers.

 

80


Table of Contents

Certain Unaudited Prospective Financial Information

Brookfield Unaudited Prospective Financial Information

Brookfield’s management prepared and made available certain unaudited prospective financial information (referred to as the “Brookfield Forecasts”) to the Brookfield board and Oaktree.

The Brookfield Forecasts are being included in this consent solicitation statement/prospectus solely because they were made available to the Brookfield board and Oaktree and are not being provided for any other purpose. However, the inclusion of this information should not be regarded as an indication that Brookfield and Oaktree or any other recipient of this information considered, or now considers, the Brookfield Forecasts to be material information of Brookfield or necessarily predictive of actual future results nor should it be construed as financial guidance. No person has made or makes any representation or warranty regarding the inclusion of the Brookfield Forecasts. Such information is not included herein in order to induce or otherwise influence any Oaktree unitholders to make an investment decision with respect to the mergers or induce or otherwise influence any Oaktree unitholders to consent to the proposals submitted to such holder in connection with this consent solicitation statement/prospectus.

Brookfield does not as a matter of course make public projections as to future sales, earnings, or other results. However, the management of Brookfield has prepared the Brookfield Forecasts set forth below for use by the Brookfield board and Oaktree and are not being provided for any other purpose. The accompanying Brookfield Forecasts were not prepared with a view toward public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants, or a similar professional body, with respect to prospective financial information, but, in the view of Brookfield’s management, was prepared on a reasonable basis, reflects the best currently available estimates and judgments, and presents, to the best of management’s knowledge and belief, the expected course of action and the expected future financial performance of Brookfield. However, this information is not fact and should not be relied upon as being necessarily indicative of actual future results, and readers of this Registration Statement are cautioned not to place undue reliance on the Brookfield Forecasts. Neither Brookfield’s independent auditors, nor any other independent accountants, have compiled, examined, or performed any procedures with respect to the Brookfield Forecasts contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and assume no responsibility for, and disclaim any association with, the Brookfield Forecasts. The report of Deloitte LLP contained in Brookfield’s Annual Report on Form 40-F for the year ended December 31, 2018, which is incorporated by reference into this consent solicitation statement/prospectus, relates to Brookfield’s previously issued financial statements. It does not extend to the Brookfield Forecasts and should not be read to do so.

The Brookfield Forecasts are subjective in many respects and thus susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. Although a summary of the Brookfield Forecasts is presented with numerical specificity, they reflect numerous assumptions and estimates as to future events made by Brookfield’s management that management believed were reasonable at the time the Brookfield Forecasts were prepared, taking into account the relevant information available to management at the time. However, this information is not fact and is not necessarily indicative of actual future results. Such assumptions and estimates taken into account by Brookfield’s management in preparing the Brookfield Forecasts include, among others, matters relating to Brookfield’s operations, financial results, financial condition, business prospects, growth strategy, liquidity, the sources and amounts of management fees, incentive income and investment income, capitalization and performance of Brookfield’s listed issuers, the amount and source of expected capital commitments for any new fund or redemption amounts, and changes in actual or projected cash flows, industry performance, performance of Brookfield funds, the net asset value of assets in certain of Brookfield’s funds, the raising of private equity and other capital, investment income, growth rate, net management margins, general business, economic, market, political, regulatory, competitive and financial conditions, changes in tax or other laws and other matters, and future events, all of which are difficult to predict and many of which are beyond Brookfield’s control.

There can be no assurance that the projected results will be realized or that actual results will not be significantly higher or lower than projected. The Brookfield Forecasts cannot be considered a guarantee of future results and

 

81


Table of Contents

should not be relied upon as such. In addition, because the Brookfield Forecasts cover multiple years, such information by its nature becomes subject to greater uncertainty with each successive year. The Brookfield Forecasts may differ from publicized analyst estimates and forecasts and do not take into account any events or circumstances after the date they were prepared, including the announcement of the mergers. Accordingly, there can be no assurance that the assumptions made in preparing the Brookfield Forecasts, or that the Brookfield Forecasts, will be realized whether or not the mergers are consummated, and actual results may be materially better or worse than those contained in the Brookfield Forecasts. The Brookfield Forecasts should be evaluated, if at all, in conjunction with the historical financial statements and other information regarding Brookfield contained in its public filings with the SEC. See the section entitled “Risk Factors—Risk Factors Relating to the Mergers” beginning on page 112 of this consent solicitation statement/prospectus for an analysis of the potential adverse effect that the announcement and pendency of the mergers may have on Brookfield’s business, financial condition, results of operation, business prospects or share trading prices.

The Brookfield Forecasts constitute forward-looking information and are subject to risks and uncertainties that could cause actual results to differ materially from the results forecasted in such information, including the various risks set forth in Brookfield’s Annual Report on Form 40-F for the year ended December 31, 2018 and in other documents that are incorporated by reference herein. See the sections entitled “Risk Factors”, “Cautionary Information Regarding Forward-Looking Statements” and “Where You Can Find More Information” beginning on pages 112, 122 and 219, respectively, of this consent solicitation statement/prospectus.

The inclusion of the Brookfield Forecasts in this consent solicitation statement/prospectus should not be regarded as an indication that any of Brookfield, Berlin Merger Sub, or Oaktree or their respective affiliates, advisors or other representatives considered or consider the Brookfield Forecasts to be necessarily predictive of actual future events, and the Brookfield Forecasts should not be relied upon as such. None of Brookfield, Berlin Merger Sub, or Oaktree or their respective affiliates, advisors or other representatives has made or makes any representation to any person regarding the ultimate performance of Brookfield compared to the information contained in the Brookfield Forecasts and, except as required by applicable federal securities laws, Brookfield does not intend, and Brookfield expressly disclaims any responsibility, to update or otherwise revise or reconcile the Brookfield Forecasts to reflect circumstances existing after the date the Brookfield Forecasts were prepared or to reflect the occurrence of future events or changes in general economic or industry conditions, even in the event that any or all of the assumptions underlying the Brookfield Forecasts are shown to be in error.

Measures in the Brookfield Forecasts include those considered as non-GAAP financial measures. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by Oaktree may not be comparable to similarly titled amounts used by other companies.

The following table presents the Brookfield Forecasts made available to the Brookfield board and Oaktree:

 

Cash Available for Distribution    As of or for the Year Ended December 31  
($in millions)    2019      2020      2021      2022      2023      Total  

Fee related earnings(1)

   $ 1,260      $ 1,440      $ 1,650      $ 1,930      $ 2,160      $ 8,440  

Carried interest(2)

     200        290        240        390        1,030        2,150  

Free cash flow(3)

     2,550        2,990        3,400        4,180        5,390        18,510  

 

(1)

“Fee related earnings” is comprised of fee revenues less direct costs associated with earning those fees, which include employee expenses and professional fees as well as business related technology costs, other shared services and taxes.

(2)

“Carried interest” is realized carried interest, net, which is a non-IFRS measure and represents realized carried interest after direct costs, which include employee expenses and cash taxes. Realized carried interest is an IFRS measure and represents Brookfield’s share of investment returns based on realized gains within a private fund. Realized carried interest earned is recognized when an underlying investment is profitably

 

82


Table of Contents
 

disposed of and the fund’s cumulative returns are in excess of preferred returns, in accordance with the respective terms set out in the fund’s governing agreements, and when the probability of clawback is remote.

(3)

“Free cash flow” is cash available for distribution and/or reinvestment, which is a non-IFRS measure that provides insight into earnings received by Brookfield that are available for distribution to common shareholders or to be reinvested into the business. It is calculated as the sum of Brookfield’s Asset Management segment FFO (i.e., fee related earnings and realized carried interest, net); distributions from Brookfield’s listed partnerships, other investments that pay regular cash distributions and distributions from Brookfield’s corporate cash and financial assets; other invested capital earnings, which include FFO from Brookfield’s residential operations, energy contracts, sustainable resources and other real estate, private equity, corporate investments that do not pay regular cash distributions, corporate costs and corporate interest expense; net of preferred share dividend payments.

Oaktree Unaudited Prospective Financial Information

Oaktree does not, as a matter of general practice, publicly disclose long-term forecasts or internal projections of its future financial performance, revenues, earnings, financial condition or other results due to, among other reasons, the nature of Oaktree’s business and the inherent uncertainty and subjectivity of the underlying assumptions and estimates used in preparing financial projections, including the inherent difficulty of predicting economic and market conditions. However, in connection with the proposed mergers, Oaktree’s management prepared and made available certain unaudited prospective financial information (referred to as the “Oaktree Forecasts”) to the special committee and the Oaktree board and their respective financial advisors, as well as Brookfield.

The Oaktree Forecasts are being included in this consent solicitation statement/prospectus solely because they were made available to the special committee, the Oaktree board, Perella Weinberg, Sandler O’Neill and Brookfield and are not being provided for any other purpose. However, the inclusion of this information should not be regarded as an indication that Oaktree, the special committee, the Oaktree board, Perella Weinberg, Sandler O’Neill and Brookfield or any other recipient of this information considered, or now considers, the Oaktree Forecasts to be material information of Oaktree or necessarily predictive of actual future results nor should it be construed as financial guidance. No person has made or makes any representation or warranty regarding the inclusion of the Oaktree Forecasts. Such information is not included herein in order to induce or otherwise influence any Oaktree unitholders to make an investment decision with respect to the mergers or induce or otherwise influence any Oaktree unitholders to consent to the proposals submitted to such holder in connection with this consent solicitation statement/prospectus.

Oaktree did not prepare the Oaktree Forecasts with a view to public disclosure or compliance with the published guidelines of the SEC regarding projections and forward-looking statements or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. Furthermore, the Oaktree Forecasts were not prepared with a view to compliance with GAAP. The Oaktree Forecasts included in this consent solicitation statement/prospectus have been prepared by, and are the responsibility of, Oaktree’s management. Neither Ernst & Young LLP, Oaktree’s independent registered public accounting firm, nor any other independent accountant, has audited, examined, reviewed, compiled or otherwise applied procedures with respect to the Oaktree Forecasts, nor have they expressed any opinion or any other form of assurance on such information or its achievability, and accordingly, assumes no responsibility for, and disclaims any association with, the Oaktree Forecasts. The report of Ernst & Young LLP contained in Oaktree’s Annual Report on Form 10-K for the year ended December 31, 2018, which is incorporated by reference into this consent solicitation statement/prospectus, relates to Oaktree’s previously issued financial statements. It does not extend to the Oaktree Forecasts and should not be read to do so.

The Oaktree Forecasts are subjective in many respects and thus susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. Although a summary of the Oaktree

 

83


Table of Contents

Forecasts is presented with numerical specificity, they reflect numerous assumptions and estimates as to future events made by Oaktree’s management that management believed were reasonable at the time the Oaktree Forecasts were prepared, taking into account the relevant information available to management at the time. However, this information is not fact and is not necessarily indicative of actual future results. Such assumptions and estimates taken into account by Oaktree’s management in preparing the Oaktree Forecasts include, among others, matters relating to Oaktree’s operations, financial results, financial condition, business prospects, growth strategy, liquidity, the sources and amounts of management fees, incentive income and investment income, the amount and source of expected capital commitments for any new fund or redemption amounts, and changes in actual or projected cash flows, industry performance, performance of Oaktree funds, the net asset value of assets in certain of Oaktree funds, the raising of private equity and other capital, investment income, growth rate, net management margins, general business, economic, market, political, regulatory, competitive and financial conditions, changes in tax or other laws and other matters, and future events, all of which are difficult to predict and many of which are beyond Oaktree’s control.

There can be no assurance that the projected results will be realized or that actual results will not be significantly higher or lower than projected. The Oaktree Forecasts cannot be considered a guarantee of future results and should not be relied upon as such. In addition, because the Oaktree Forecasts cover multiple years, such information by its nature becomes subject to greater uncertainty with each successive year. The Oaktree Forecasts may differ from publicized analyst estimates and forecasts and do not take into account any events or circumstances after the date they were prepared, including the announcement of the mergers. Accordingly, there can be no assurance that the assumptions made in preparing the Oaktree Forecasts, or that any of the Oaktree Forecasts, will be realized whether or not the mergers are consummated, and actual results may be materially better or worse than those contained in the Oaktree Forecasts. The Oaktree Forecasts should be evaluated, if at all, in conjunction with the historical financial statements and other information regarding Oaktree contained in its public filings with the SEC. See the section entitled “Risk Factors—Risk Factors Relating to the Mergers” beginning on page 112 of this consent solicitation statement/prospectus for an analysis of the potential adverse effect that the announcement and pendency of the mergers may have on Oaktree’s business, financial condition, results of operation, business prospects or unit trading prices.

The Oaktree Forecasts constitute forward-looking information and are subject to risks and uncertainties that could cause actual results to differ materially from the results forecasted in such information, including the various risks set forth in Oaktree’s Annual Report on Form 10-K for the year ended December 31, 2018 and in other documents that are incorporated by reference herein. See the sections entitled “Risk Factors”, “Cautionary Information Regarding Forward-Looking Statements” and “Where You Can Find More Information” beginning on pages 112, 122 and 219, respectively, of this consent solicitation statement/prospectus.

The inclusion of the Oaktree Forecasts in this consent solicitation statement/prospectus should not be regarded as an indication that any of Brookfield, Berlin Merger Sub, or Oaktree or their respective affiliates, advisors or other representatives considered or consider the Oaktree Forecasts to be necessarily predictive of actual future events, and the Oaktree Forecasts should not be relied upon as such. None of Brookfield, Berlin Merger Sub, or Oaktree or their respective affiliates, advisors or other representatives has made or makes any representation to any person regarding the ultimate performance of Oaktree compared to the information contained in the Oaktree Forecasts and, except as required by applicable federal securities laws, Oaktree does not intend, and Oaktree expressly disclaims any responsibility, to update or otherwise revise or reconcile the Oaktree Forecasts to reflect circumstances existing after the date the Oaktree Forecasts were prepared or to reflect the occurrence of future events or changes in general economic or industry conditions, even in the event that any or all of the assumptions underlying the Oaktree Forecasts are shown to be in error.

Measures in the Oaktree Forecasts include those considered as non-GAAP financial measures. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information presented in compliance with GAAP, and non-GAAP financial measures as used by Oaktree may not be comparable to similarly titled amounts used by other companies.

 

84


Table of Contents

The following table presents the Oaktree Forecasts made available to the special committee, the Oaktree board, Perella Weinberg, Sandler O’Neill and Brookfield:

 

     As of or for the Year Ended December 31,  
     2019E     2020E     2021E     2022E     2023E  
     ($ in millions except per unit data)  

Distributable Earnings(1)

          

Distributable earnings revenues

          

Management fees

   $ 843     $ 951     $ 980     $ 1,105     $ 1,253  

Incentive income(2)

     730       252       439       480       694  

Realized investment income(3)

     99       107       113       149       145  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total distributable earnings revenues

     1,672       1,310       1,532       1,734       2,093  

Total distributable earnings expenses

     (994     (759     (889     (948     (1,099
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Distributable earnings

     678       551       643       786       994  

Distributable earnings after preferred

     651       523       615       759       967  

Other Non-GAAP Results

          

Adjusted revenues

   $ 1,764     $ 1,396     $ 1,629     $ 1,806     $ 2,181  

Equity-based compensation

     (65     (72     (76     (82     (83

Adjusted net income(4)

     723       573       672       785       1,007  

Fee-related earnings

     255       335       335       425       532  

Operating Metrics

          

Assets Under Management

          

Assets under management

   $ 125,483     $ 138,433     $ 154,932     $ 172,562     $ 192,553  

Management fee-generating assets under management

     109,797       121,347       126,771       143,881       160,635  

Incentive-creating assets under management

     40,167       48,182       56,378       63,127       70,754  

Accrued incentives (fund level)(5)

          

Incentives created (fund level)

     702       818       993       1,133       1,224  

Incentives created (fund level), net of associated incentive income compensation expense

     326       381       465       534       582  

Accrued incentives (fund level)

     1,693       2,259       2,813       3,466       3,996  

Accrued incentives (fund level), net of associated incentive income compensation expense

     796       1,062       1,328       1,648       1,912  

Per Oaktree class A unit

          

Adjusted net income per Oaktree class A unit(6)

   $ 3.79     $ 2.71     $ 3.32     $ 3.82     $ 4.83  

Distributable earnings per Oaktree class A unit

     4.06       3.20       3.70       4.47       5.37  

Distributions per Oaktree class A unit(7)

     3.25       2.54       2.97       3.62       4.35  

Outstanding Oaktree units

          

Outstanding Oaktree class A units

     73.0       74.3       75.6       76.9       78.2  

Outstanding OCGH units

     86.6       87.3       88.0       88.7       89.4  
  

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Outstanding Oaktree operating group units

     159.6       161.6       163.6       165.6       167.6  

 

(1)

Distributable earnings is a non-GAAP performance measure derived from adjusted net income that Oaktree uses to measure its earnings at the Oaktree operating group level without the effects of the consolidated funds. Distributable earnings and distributable earnings revenues differ from ANI (as defined below) in that they exclude investment income or loss and include the portion of income or loss on distributions received from funds and companies. In addition, distributable earnings differs from ANI in that (a) any impairment charges on Oaktree’s CLO investments included in ANI are, for distributable earnings purposes, amortized over the remaining investment period of the respective CLO and (b) make-whole premium charges related

 

85


Table of Contents
 

to the repayment of debt included in ANI are, for distributable earnings purposes, amortized through the original maturity date of the repaid debt. Finally, distributable earnings differs from ANI in that it is net of Oaktree operating group income taxes and excludes non-cash equity-based compensation expense.

(2)

In 2019, $288 million of the $738 million of incentive income relates to tax distributions. In 2020 and beyond, Oaktree’s management does not project any tax-related incentive income given the difficulty of reliably forecasting it.

(3)

Realized investment income does not assume any sales of discretionary investments, the timing of which is uncertain.

(4)

The components of revenues (“adjusted revenues”) and expenses (“adjusted expenses”) used in the determination of adjusted net income (“ANI”) do not give effect to the consolidation of the funds that Oaktree manages. Adjusted revenues include investment income (loss) that is classified in other income (loss) in the GAAP statements of operations, and management fees and incentive income include the portion of the earnings from management fees and performance fees, respectively, attributable to Oaktree’s 20% ownership interest in DoubleLine, which are reflected as investment income in Oaktree’s GAAP statements of operations. In addition, ANI excludes the effect of (a) non-cash equity-based compensation expense related to unit grants made before Oaktree’s initial public offering, (b) acquisition-related items, including amortization of intangibles and changes in the contingent consideration liability, (c) income taxes, (d) other income or expenses applicable to Oaktree or the intermediate holdcos, (e) the adjustment for non-controlling interests, (f) Oaktree preferred unit distributions, and (g) the TCJA. Moreover, gains and losses resulting from foreign-currency transactions and hedging activities under GAAP are recognized as general and administrative expense whether realized or unrealized in the current period. For ANI, unrealized gains and losses from foreign-currency hedging activities are deferred until realized, at which time they are included in the same revenue or expense line item as the underlying exposure that was hedged, and foreign-currency transaction gains and losses are included in other income (expense), net. Incentive income and incentive income compensation expense are included in ANI when the underlying fund distributions are known or knowable as of the respective quarter end, which may be later than the time at which the same revenue or expense is included in the GAAP statements of operations, for which the revenue standard is probable that significant reversal will not occur and the expense standard is probable and reasonably estimable. CLO investments are carried at fair value for GAAP reporting, whereas for ANI, they are carried at amortized cost, subject to any impairment charges. Investment income on CLO investments is recognized in ANI when cash distributions are received. Cash distributions are allocated between income and return of capital based on the effective yield method.

(5)

Oaktree’s funds record as accrued incentives the incentive income that would be paid to Oaktree if the funds were liquidated at their reported values as of the applicable date. Incentives created (fund level) refers to the gross amount of potential incentives generated by the funds during the period. We refer to the amount of accrued incentives recognized as revenue by Oaktree as incentive income. Amounts recognized by Oaktree as incentive income are not included in accrued incentives (fund level), the term Oaktree uses for remaining fund-level accruals. Incentives created (fund level), incentive income and accrued incentives (fund level) are presented gross, without deduction for direct compensation expense that is owed to Oaktree investment professionals associated with the particular fund when Oaktree earns the incentive income. Oaktree calls that charge “incentive income compensation expense.” Incentive income compensation expense varies by the investment strategy and vintage of the particular fund, among many factors.

(6)

Represents ANI including the effect of (a) Oaktree preferred unit distributions, (b) the OCGH non-controlling interest, (c) other income or expenses, such as income tax expense, applicable to Oaktree or its intermediate holdcos and (d) any Oaktree operating group income taxes attributable to Oaktree.

(7)

Assumes 85% of distributable earnings per Oaktree class A unit are actually distributed, and for this purpose distributable earnings includes the effect of (a) Oaktree preferred unit distributions, (b) the OCGH non-controlling interest, (c) expenses, such as current income tax expense, applicable to Oaktree or its intermediate holdcos and (d) amounts payable under the TRA. The income tax expense included in this calculation represents the implied current provision for income taxes calculated using an approach similar to that which is used in calculating the income tax provision for ANI per Oaktree Class A unit.

 

86


Table of Contents

In addition, in the discounted cash flow analysis of Oaktree performed by Sandler O’Neill in connection with its opinion, the following implied projected unlevered free cash flows-class A were calculated from the distributable earnings data contained in the Oaktree Forecasts described above:

 

     As of or for the Year Ended December 31,  
       2019E          2020E          2021E          2022E          2023E    
     ($ in millions)  

Unlevered Free Cash Flows-Class A(1)

   $ 249.4      $ 188.7      $ 227.7      $ 284.1      $ 361.4  

 

(1)

Calculated as distributable earnings, less distributable earnings attributable to OCGH non-controlling interest, less cash replacement for equity based compensation, plus interest expense / (income), less non-operating group expense / (income), less distributable earnings—Class A income tax expense / (income), less tax receivable agreement payments, plus depreciation and amortization, less changes in net working capital, less capital expenditures, all as provided by Oaktree management (adjusted for the OCGH non-controlling interest in the case of cash replacement for equity based compensation, interest expense / (income), depreciation and amortization, changes in net working capital and capital expenditures).

The foregoing implied projected unlevered free cash flows-class A, which were based on the distributable earnings data for Oaktree as described above, were calculated solely for purposes of the discounted cash flow analysis in connection with Sandler O’Neill’s opinion, and none of Brookfield, Oaktree and Sandler O’Neill assumes any responsibility for any use of such estimates, or reliance on such estimates, for any other purpose.

Purpose and Reasons of Oaktree for the Mergers

Oaktree’s purpose for engaging in the mergers is to enable the Oaktree class A unitholders to receive either $49.00 in cash or 1.0770 Brookfield class A shares in exchange for each Oaktree class A unit (in each case subject to pro-ration to ensure that the aggregate merger consideration paid by Brookfield will be 50% cash consideration and 50% share consideration), without interest and less any applicable withholding taxes, which merger consideration represents a premium of approximately 12.4% (on a combined cash-and share-consideration basis) to the closing price of Oaktree class A units on March 12, 2019, the last full trading day before the public announcement of the mergers. Oaktree believes its long-term objectives can be best pursued without publicly traded common equity and that the transaction presents an opportunity for Oaktree class A unitholders receiving cash consideration to achieve a profitable exit while affording unitholders receiving share consideration the opportunity to participate and share in the future earnings, growth and value of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group following completion of the mergers. This determination was based on the analyses, determinations and conclusions of the special committee (including the recommendation of the special committee that the Oaktree board adopt resolutions approving the initial merger and declaring that the merger agreement and the initial merger are advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub, and their respective affiliates, OCGH, such unitholders who are also equityholders of OCGH and holders of Oaktree restricted units)) and the Oaktree board and described in detail under “—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers” beginning on page 52 of this consent solicitation statement/prospectus.

Purpose and Reasons of the OCGH Filing Parties for the Mergers

Under the SEC rules governing “going private” transactions, each of the OCGH filing parties is an affiliate of Oaktree and, therefore, is required to express its purposes and reasons for the mergers to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. Each of the OCGH filing parties is making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of the OCGH filing parties should not be construed as a recommendation to any Oaktree unitholder as to whether that unitholder should consent with respect to the merger proposal.

 

87


Table of Contents

Each of the OCGH filing parties believes that it is in the best interests of Oaktree to operate as a company with no publicly-traded common equity. The OCGH filing parties believe that without publicly-traded common equity, Oaktree will have greater operational flexibility to pursue alternatives than it would have with publicly-traded common equity, and that management will be able to concentrate on long-term growth with a client-centric approach without the emphasis by the public equity markets on quarter-to-quarter performance and growth in assets under management in the valuation of the Oaktree class A units.

The OCGH filing parties’ previously-stated principles required that any strategic transaction (such as a sale of any interest in the business) would need to involve: (i) a prestigious affiliation that would bring resources to Oaktree; (ii) with a party willing to pay a fair price for a non-controlling investment; (iii) that would entail no cessation of Oaktree’s existence as an autonomous entity; (iv) no diminution of Oaktree’s role in representing its own products to clients and (v) no reduction in its freedom to manage its accounts and its business. The transaction with Brookfield contemplated by the merger agreement meets each of the foregoing criteria. Specifically:

 

   

the merger consideration represents a premium of approximately 12.4% (on a combined cash-and share-consideration basis) to the closing price of Oaktree class A units on March 12, 2019, the last full trading day before the public announcement of the mergers;

 

   

the OCGH filing parties believe that the transaction with Brookfield presents an outstanding fit in terms of corporate culture, investment style and reputation;

 

   

the terms of the A&R operating agreement contemplate that Oaktree’s current senior leadership, including Messrs. Karsh and Marks, will continue in their current roles with no fixed end date, and that Oaktree will continue to operate independently;

 

   

Brookfield’s products and global presence are complementary to Oaktree’s, and each business will be able to partner with each other to leverage their respective strengths;

 

   

Brookfield and Oaktree expect to identify and capitalize on growth and opportunities which may include initiatives involving product development for multi-strategy solutions, jointly pursuing large strategic partnerships with major institutional investors and leveraging Brookfield’s sizeable global operating personnel; and

 

   

Oaktree’s affiliation with Brookfield is expected to bring resources and access to investment opportunities globally, enabling Oaktree to serve its clients better.

If the transactions contemplated by the merger agreement are completed, Oaktree class A units will cease to be publicly traded and Brookfield will indirectly own a 62% economic interest in the Oaktree operating group, and OCGH unitholders will own the remaining 38% economic interest in the Oaktree operating group, through their ownership in OCGH. The OCGH filing parties believe that structuring the transaction in such a manner is preferable to any other alternative transaction structure because (i) it will enable Brookfield to acquire all of the outstanding Oaktree class A units, excluding the Oaktree excluded shares, (ii) it represents an opportunity for Oaktree unaffiliated unitholders receiving cash consideration to immediately realize the value in their investment in Oaktree, (iii) it represents an opportunity for Oaktree unaffiliated unitholders receiving share consideration to participate and share in any future earnings or growth, if any, of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group, or benefit from increases, if any, in the value of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group, following completion of the mergers, and (iv) it provides Oaktree’s founders and employees a gradual liquidity mechanism (that has not developed for the publicly-listed Oaktree class A units) in the form of an option to sell pursuant to the exchange agreement, rather than an obligation to do so.

The OCGH filing parties did not consider any other alternative transaction structure based on their determination that no other alternatives available would (i) provide Oaktree with a prestigious affiliation that would bring resources to Oaktree with a party willing to pay a fair price for a non-controlling investment in the Oaktree operating group that would entail no cessation of Oaktree’s existence as an autonomous entity, no diminution in

 

88


Table of Contents

Oaktree’s role in representing its own products to its clients and no reduction in Oaktree’s freedom to manage its accounts and business, (ii) provide an opportunity for Oaktree unaffiliated unitholders to realize value at a premium to the trading price of the Oaktree class A units prior to the announcement of the mergers and (iii) provide gradual liquidity to OCGH unitholders.

Purpose and Reasons of the Brookfield Filing Parties for the Mergers

Under the SEC rules governing “going private” transactions, each of the Brookfield merger parties and the Brookfield filing parties may be deemed affiliates of Oaktree and, therefore, is required to express its purposes and reasons for the transactions contemplated by the merger agreement to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. Each of the Brookfield merger parties and the Brookfield filing parties is making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of each of the Brookfield merger parties and the Brookfield filing parties should not be construed as a recommendation to any Oaktree unitholder as to whether that unitholder should deliver a written consent voting in favor of adoption of the merger agreement.

If the transactions contemplated by the merger agreement are completed, Oaktree will become an indirect subsidiary of Brookfield and the Oaktree class A units will cease to be publicly traded. For the Brookfield merger parties, the purpose of the mergers is to effectuate the transactions contemplated by the merger agreement. For the Brookfield filing parties, the purpose of the mergers is to allow Brookfield to bear the rewards and risk of their equity ownership in Oaktree after the transactions are completed and the Oaktree class A units cease to be publicly traded.

In evaluating the merger agreement, the merger and the other transactions contemplated by the merger agreement, Brookfield and its advisors and counsel spent considerable time analyzing the transactions and conducting due diligence on Oaktree and its business. Before reaching its decision at its meeting on March 13, 2019 to authorize and approve the merger agreement and the transaction documents, the transaction committee appointed by the Brookfield board, with the advice and recommendations of Brookfield’s senior management, considered a variety of factors that weighed positively in favor of the transactions, including, among others, the following (not necessarily in order of relative importance):

Strategic Factors:

 

   

its belief that it could earn a return on its investment in-line or above its long-term investment return targets;

 

   

its belief that the transaction will be modestly accretive to Brookfield’s cash flows;

 

   

its belief that the acquisition of Oaktree further enhances Brookfield’s position as a leading global asset manager by expanding its alternative product offerings to include a leading credit platform, allowing Brookfield to offer a broader product offering and creating a broader platform to enhance fundraising and future growth;

 

   

due to the limited overlap in investing strategies and separation of the businesses, Oaktree can continue to execute its existing business plan with support from Brookfield;

 

   

Oaktree’s most complementary strategies are largely comprised of their leading flagship and high growth businesses;

 

   

Brookfield and Oaktree have similar value-driven investment approaches, focused on downside protection;

 

   

there are potential benefits in the medium term, particularly in fundraising given the relatively limited overlap among significant clients of the parties;

 

89


Table of Contents
   

the transaction provides a more cycle-agnostic platform, given the counter-cyclical nature of Oaktree’s business;

 

   

the transaction provides longer term opportunities to further integrate limited partner relationships, leverage enhanced business reach and knowledge;

 

   

the transaction forms an attractive entry point to acquire a best-in-class distressed credit platform;

 

   

there is near term growth visibility due to initiation of fees from the most recent flagship distressed fund;

 

   

Oaktree is a strong platform to drive future growth across a wide spectrum of credit strategies;

Factors Relating to Transactions Terms and Structure:

 

   

that the proposed structure creates a joint venture with strong management alignment of interests;

 

   

that OCGH, which owns Oaktree class B units representing in the aggregate 92% of the total outstanding voting power of Oaktree as of the date of the merger agreement has agreed, among other things, to deliver a written consent voting in favor of adoption of the merger agreement;

 

   

that the Oaktree board is required to make a recommendation to the Oaktree unitholders in favor of adopting the merger agreement, except for certain limited circumstances;

 

   

that Brookfield has a “right to match” any superior proposal received by Oaktree;

 

   

that the merger agreement includes customary termination provisions;

 

   

that Brookfield is entitled to a termination fee of $225 million in certain circumstances, including if Brookfield terminates due to an adverse recommendation change.

The Brookfield merger parties believe that, as an entity that is largely privately held, Oaktree will have greater operational flexibility to pursue alternatives that it would not have as an independent public company with freely tradeable common units and management will be able to concentrate on long-term growth, reducing the emphasis on quarter-to-quarter performance by the public equity market’s valuation of the Oaktree class A units.

Although each of the Brookfield merger parties believes that there will be significant opportunities associated with their investment in Oaktree, the Brookfield merger parties realize that there are also substantial risks (including the risks and uncertainties relating to the prospects of Oaktree) and that such opportunities may not ever be fully realized.

The above discussion of the material factors considered by the Brookfield merger parties and the Brookfield filing parties in its consideration of the transactions is not intended to be exhaustive, but does set forth the principal factors considered by Brookfield. In light of the number and wide variety of factors considered in connection with the evaluation of the transactions, Brookfield did not attempt to quantify or otherwise assign relative weights to the specific factors it considered in reaching its final decision. Brookfield views its final decision as being based on all the information available to it and the factors presented to and considered by it. However, some directors may individually have given different weight to different factors. The factors, potential risks and uncertainties described herein as having been considered by the Brookfield merger parties and the Brookfield filing parties in evaluating the transactions and other information presented in this section of this consent solicitation statement/prospectus contain information that is forward-looking in nature and, therefore, should be read in light of the factors discussed in the section entitled “Cautionary Information Regarding Forward-Looking Statements” beginning on page 122 of this consent solicitation statement/prospectus.

If the mergers are completed, the Brookfield merger parties believe that structuring the transactions in such a manner is preferable to other alternative transaction structures because (i) it will enable Brookfield to acquire all of the outstanding Oaktree class A units (other than those already held by its affiliates and Oaktree restricted

 

90


Table of Contents

units) at the same time, (ii) it represents an opportunity for Oaktree’s unaffiliated unitholders to immediately realize the value of their investment in Oaktree, (iii) it allows the Brookfield merger parties and the Brookfield filing parties to invest in Oaktree, and (iv) it ensures ongoing alignment of interests between Brookfield and the founders and management of Oaktree, who will continue operating the business going forward.

Position of the OCGH Filing Parties as to the Fairness of the Mergers

Under SEC rules, the OCGH filing parties are required to express their belief as to the fairness of the mergers to the unaffiliated class A unitholders of Oaktree. The OCGH filing parties are making the statements included in this section solely for the purposes of complying with the requirements of Rule 13e-3 and the related rules under the Exchange Act. The views of the OCGH filing parties should not be construed as a recommendation to whether any Oaktree unitholder should consent to the merger proposal.

The OCGH filing parties have interests in the mergers that are different from, and in addition to, those of the other Oaktree unitholders. These interests are described under “—Interests of Oaktree Directors and Executive Officers in the Mergers” beginning on page 97. In light of these different interests, the Oaktree board established a special committee consisting solely of individuals (i) not directly or indirectly affiliated with Messrs. Marks, Karsh, Wintrob, Frank, or Stone, OCGH, or their respective affiliates (other than an affiliation with Oaktree by virtue of serving as a director of Oaktree), (ii) not members of Oaktree’s management and (iii) otherwise not having a material interest in the proposed transaction (other than an interest by virtue of their ownership of Oaktree class A units) to, among other things, negotiate the terms of the proposed transaction with Brookfield, with the assistance of the special committee’s own outside legal and financial advisors.

The mergers were approved unanimously by (i) members of the Oaktree board, including all of the directors who are not employees of Oaktree and all of the (ii) members of the special committee.

None of the OCGH filing parties participated in the negotiations with the special committee with respect to the price to be paid to the Oaktree unaffiliated unitholders in the mergers, and none of the OCGH filing parties participated in the deliberations of the special committee as to the substantive or procedural fairness of the mergers to the Oaktree unaffiliated unitholders. For these reasons, the OCGH filing parties do not believe that their interests in the mergers influenced the decision of the special committee with respect to the merger agreement or the mergers.

None of the OCGH filing parties has performed, or engaged a financial advisor to perform, any valuation or other analyses for the purposes of assessing the fairness of the mergers to the Oaktree unaffiliated unitholders. Based on the knowledge and analysis of each of the OCGH filing parties of available information regarding Oaktree, as well as discussions with Oaktree’s senior management regarding Oaktree and its business and factors considered by, and the analysis and resulting conclusions of the Oaktree board and the special committee discussed under “—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers” beginning on page 52 of this consent solicitation statement/prospectus (which analysis and resulting conclusions each of the OCGH filing parties adopt as their own), each of the OCGH filing parties believes that the mergers are substantively and procedurally fair to the Oaktree unaffiliated unitholders based on the consideration of the following factors, among others:

 

   

the special committee, by unanimous vote of its members, declared that the merger agreement and the initial merger are advisable, fair to, and in the best interests of Oaktree and holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, such unitholders who are also equity holders of OCGH and holders of Oaktree restricted units);

 

   

the Oaktree board also determined, by unanimous vote (including the “Outside Directors” as defined in the Oaktree operating agreement) that it is advisable, fair to, and in the best interests of, Oaktree and its unitholders that Oaktree enter into the merger agreement;

 

91


Table of Contents
   

the current and historical market prices of the Oaktree class A units, including the market performance of the Oaktree class A units relative to that of other participants in Oaktree’s industry and general market indices, and the fact that the cash consideration of $49.00 per unit represents a premium of approximately 11.8% over the closing price of the Oaktree class A units on March 12, 2019, the last full trading day before the public announcement of the mergers;

 

   

the merger consideration payable to the holders of Oaktree class A units, and the other terms and conditions of the merger agreement, resulted from negotiations between and among the OCGH filing parties, the Brookfield filing parties and the special committee and its advisors;

 

   

Oaktree unaffiliated unitholders who receive all or part of the merger consideration in the form of Brookfield class A shares will be able to participate and share in any future earnings or growth of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group, or benefit from increases, if any, in the value of Brookfield and its subsidiaries, including Brookfield’s indirect ownership of the Oaktree operating group, following completion of the mergers;

 

   

notwithstanding that the opinion of Sandler O’Neill was provided for the information and assistance of the special committee and that none of the OCGH filing parties and the Brookfield filing parties are entitled to rely on (or relied on) such opinion, the fact that the special committee received the opinion, dated March 13, 2019, of Sandler O’Neill as to the fairness, from a financial point of view and as of the date of such opinion, to the holders of the Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, those unitholders who are also equity holders of OCGH and holders of Oaktree restricted units) of the merger consideration, as more fully described in the section entitled “—Opinion of Special Committee’s Financial Advisor” beginning on page 69;

 

   

the special committee retained and was advised by its own legal and financial advisors, each of which has extensive experience in transactions similar to the transactions contemplated by the merger agreement;

 

   

a majority of Oaktree’s non-employee directors did not retain an unaffiliated financial advisor to act solely on behalf of unaffiliated securityholders; however, the special committee, comprised solely of independent directors, engaged Sandler O’Neill as its financial advisor;

 

   

Oaktree’s ability, prior to the receipt of the Oaktree member approval, to consider and respond to an unsolicited acquisition proposal, to furnish confidential information to, and engage in discussions or negotiations with, the person or parties making such a proposal if the Oaktree board or special committee determines in good faith, after consultation with Oaktree’s financial advisors, that such proposal constitutes or could reasonably be expected to lead to a superior proposal as more fully described in the section entitled “The Merger Agreement—Adverse Recommendation Change” beginning on page 143 of this consent solicitation statement/prospectus; and

 

   

the fact that, if the Oaktree board or special committee makes an adverse recommendation change in accordance with the merger agreement, the obligations of OCGH under the support agreement will be subject to the voting cut-back, and as a result the merger proposal will not be approved if holders representing approximately two-thirds or more of the outstanding Oaktree class A units (other than OCGH) do not provide their consent to the merger proposal.

In their consideration of the fairness of the proposed mergers, the OCGH filing parties did not find it practicable to, and did not, appraise the assets of Oaktree to determine the liquidation value for the Oaktree unaffiliated unitholders (i) because of their belief that liquidation sales generally result in proceeds substantially less than the sales of a going concern, (ii) because of the impracticability of determining a liquidation value given the significant execution risk involved in any breakup, (iii) because they considered Oaktree to be a viable going concern and (iv) because Oaktree will continue to operate its business following the mergers. None of the OCGH filing parties considered net book value, which is an accounting concept, for purposes of determining the fairness of the per Oaktree class A unit merger consideration to the Oaktree unaffiliated unitholders because, in their view, net book value is not indicative of Oaktree’s market value but rather an indicator of historical costs. None

 

92


Table of Contents

of the OCGH filing parties sought to establish a pre-merger going concern value for the Oaktree class A units to determine the fairness of the merger consideration to the Oaktree unaffiliated unitholders because following the mergers Oaktree may have a different capital structure, cost profile and/or operating strategy, among other things. However, to the extent the pre-merger going concern value was reflected in the price of the Oaktree class A units on March 12, 2019, the last trading day before the announcement of the mergers, the per unit cash consideration of $49.00 represented a premium to the going concern value of Oaktree. In addition, the OCGH filing parties did not consider firm offers made by unaffiliated persons during the last two years, as no such offers were made during that time.

The transactions are structured so that approval of the transactions by a majority of the voting interests represented by the outstanding Oaktree class A units and Oaktree class B units, voting together as a single class and entitled to vote on the merger proposal, is the only required vote of the holders of any of the Oaktree units necessary in connection with the consummation of the mergers and the transactions. Therefore, the transactions are not structured to require approval of at least a majority of unaffiliated security holders in Oaktree.

The foregoing discussion of the factors considered by the OCGH filing parties is not intended to be exhaustive but is believed to include all material factors considered by the OCGH filing parties in making a determination regarding the fairness of the mergers for the purpose of complying with the requirements of Rule 13e-3 and the related rules under the Exchange Act. The OCGH filing parties did not find it practicable to, and did not, quantify or otherwise attach relative weights to the foregoing factors in reaching their position as to the fairness of the mergers. Rather, the OCGH filing parties made their fairness determination after considering all of the factors as a whole. Each of the OCGH filing parties believes these factors provide a reasonable basis upon which to form its belief that the mergers are fair to the unaffiliated class A unitholders. This belief should not, however, be construed as a recommendation to any Oaktree class A unitholder to consent to the merger proposal. None of the OCGH filing parties makes any recommendation as to whether any Oaktree class A unitholder should consent to the merger proposal.

Position of the Brookfield Filing Parties as to the Fairness of the Mergers

Under the SEC rules governing “going private” transactions, each of the Brookfield merger parties and the Brookfield filing parties (see the section entitled “Important Information Regarding the Brookfield Merger Parties, the Brookfield Filing Parties & the OCGH Filing Parties” beginning on page 205 of this consent solicitation statement/prospectus) may be deemed an affiliate of the Company and, therefore, is required to express its beliefs as to the fairness of the transactions, including the mergers, to Oaktree’s “unaffiliated security holders,” as defined under Rule 13e-3 of the Exchange Act. Each of the Brookfield merger parties and the Brookfield filing parties is making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act. The views of each of the Brookfield merger parties and the Brookfield filing parties should not be construed as a recommendation to any Oaktree unitholder as to whether that unitholder should deliver a written consent voting in favor of adoption of the merger agreement.

The Brookfield merger parties negotiated with the special committee with the intent to achieve the terms of a transaction that would be most favorable to the Brookfield merger parties, and not necessarily to Oaktree’s unaffiliated unitholders, and, accordingly, did not negotiate the merger agreement with the goal of obtaining terms that were fair to such unaffiliated unitholders. The special committee consists of certain members of the Oaktree board that are not employees of Oaktree, and, other than special committee members’ interests described under “—Interests of Oaktree’s Directors and Executive Officers in the Mergers,” beginning on page 97 of this consent solicitation statement/prospectus, to the knowledge of the Brookfield merger parties and the Brookfield filing parties, such directors have no financial interest in the transactions different from, or in addition to, Oaktree’s unaffiliated unitholders. None of the Brookfield merger parties or the Brookfield filing parties participated in the deliberations of the special committee or the Oaktree board regarding, or received advice from Oaktree’s legal advisors or financial advisors as to, the substantive or procedural fairness of the transactions to

 

93


Table of Contents

Oaktree’s unaffiliated unitholders. None of the Brookfield merger parties or the Brookfield filing parties has performed, or engaged a financial advisor to perform, any valuation or other analysis for the purposes of assessing the fairness of the transactions to Oaktree’s unaffiliated unitholders.

Based on the knowledge and analysis of each of the Brookfield merger parties and the Brookfield filing parties of available information regarding Oaktree, as well as discussions with Oaktree’s senior management regarding Oaktree and its business and the factors considered by, and the analysis and resulting conclusions of, the Oaktree board, at the recommendation of the special committee, discussed under “—Recommendation of the Special Committee and the Oaktree Board; Reasons for the Mergers; Fairness of the Mergers” beginning on page 52 of this consent solicitation statement/prospectus, each of the Brookfield merger parties and the Brookfield filing parties believes that the transactions are substantively and procedurally fair to Oaktree’s unaffiliated unitholders based on its consideration of the following factors, among others:

 

   

the special committee determined, by unanimous vote of all of the members of the special committee, and the Oaktree board determined, by the unanimous vote of all members of the Oaktree board that the transactions are fair to, and in the best interests of, Oaktree’s unaffiliated unitholders;

 

   

the current and historical market prices of the Oaktree class A units, including the market performance of the Oaktree class A units relative to that of other participants in Oaktree’s industry and general market indices, and the fact that the merger consideration in the transactions represents a premium of approximately 12.4% (on a combined cash consideration and share consideration basis) over the closing price per share of the Oaktree class A units on March 12, 2019, the last trading day before the announcement of the merger agreement and 1.7% over the closing price per unit of the Oaktree class A units on June 18, 2019;

 

   

the merger consideration and the other terms and conditions of the merger agreement resulted from negotiations between the Brookfield merger parties and their advisors, on the one hand, and the special committee and its advisors, on the other hand;

 

   

notwithstanding that the opinion of Sandler O’Neill was provided for the information and assistance of the special committee and none of the Brookfield merger parties and the Brookfield filing parties are entitled to, and did not, rely on such opinion, the fact that the special committee received an opinion, dated March 13, 2019, of Sandler O’Neill as to the fairness, from a financial point of view, as of the date of such opinion and based upon and subject to the limitations, qualifications and assumptions set forth therein, to the holders of Oaktree class A units (other than Brookfield, Berlin Merger Sub and their respective affiliates, OCGH, and those holders of Oaktree class A units who are also equity holders of OCGH and holders of Oaktree restricted units) of the merger consideration, as more fully described in the section entitled “—Opinion of Special Committees Financial Advisor” beginning on page 69 of this consent solicitation statement/prospectus;

 

   

the special committee retained and was advised by its own legal and financial advisors, each of which has extensive experience in transactions similar to the transactions;

 

   

the merger agreement provides to Oaktree’s unaffiliated unitholders the option to elect to receive cash consideration in the aggregate of up to 50% of the total combined Oaktree class A units and SellerCo units outstanding (subject to proration), allowing Oaktree’s unaffiliated unitholders who so elect to receive cash consideration to realize a certain and fair value for all of their Oaktree class A units and, as a result, to no longer be exposed to the various risks and uncertainties related to continued ownership of Oaktree class A units;

 

   

the merger agreement provides to Oaktree’s unaffiliated unitholders the option to elect to receive the share consideration in the aggregate of up to 50% of the total combined Oaktree class A units and SellerCo units outstanding (subject to proration), allowing Oaktree’s unaffiliated unitholders who so elect to receive share consideration an opportunity to participate and share in any future earnings or growth of Brookfield and its subsidiaries, including Brookfield’s indirect ownership interest in the

 

94


Table of Contents
 

Oaktree operating group, or benefit from increases, if any, in the value of Brookfield and its subsidiaries, including Brookfield’s indirect ownership interest in the Oaktree operating group, following completion of the mergers, with respect to the share consideration received in exchange for their Oaktree units;

 

   

the fact that, prior to the consummation of any of the transactions, the Brookfield merger parties will have sufficient cash on hand to fund the aggregate cash consideration;

 

   

the special committee consists of members of the Oaktree board that are not employees of Oaktree, and, other than special committee members’ interests described under “—Interests of Oaktrees Directors and Executive Officers in the Mergers,” to the knowledge of the Brookfield merger parties and the Brookfield filing parties, such directors have no financial interest in the transactions different from, or in addition to, Oaktree’s unaffiliated unitholders;

 

   

A majority of Oaktree’s non-employee directors did not retain an unaffiliated financial advisor; however, the special committee comprised solely of independent directors engaged Sandler O’Neill to act as its financial advisor; and