EX-99.(C)(4) 2 dex99c4.htm DISCUSSION MATERIALS, DATED SEPTEMBER 8, 2009 Discussion Materials, dated September 8, 2009

Exhibit (c)(4)

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Project Veritas

Discussion Materials

* * * PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT. SUCH MATERIAL HAS BEEN FILED SEPARATELY WITH THE SEC. THE SYMBOL “[***]” IN THIS EXHIBIT INDICATES THAT INFORMATION HAS BEEN OMITTED.

September 8, 2009


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Sol Take-Private—Key Considerations

Transaction Certainty

If executed without support of Special Committee through a “Pure Resources” public tender, 90% shareholder acceptance threshold for certainty

If executed with support of Special Committee through a merger, lower threshold for certainty

– 50.1% vote if no “Majority of Minority” provision included (i.e. 100% certainty given Hortus ownership)

– 88% if “Majority of Minority” provision included

Regulatory

Launch of public tender may have impact on FCC process

Ideally launch/take action following FCC change of control approval

Special Committee and management support may improve FCC timing

Sol Special Committee Issues

Historical expectation that Special Committee and advisors would be unrealistic in price expectations

Replacement of Sol board possible, but not optimal from the perspective of the Delaware standard of review if the transaction is challenged

Recommendation from Special Committee may enhance ability to obtain desired 90% in tender offer

Management Cooperation

Management could potentially cause issues with the transaction

The Master Contribution and Support agreement restricts management from converting BCE non-voting stock and triggering issuance of Sol shares to Ignis under Shared Services Agreement

Hortus Open Market Purchase of Sol Shares

Limited trading volume in Sol stock

No strategic advantage to increasing stake in an incremental way

Potential 13e-3 and 13D disclosure issues

Funding Requirements

Current assumption that Hortus will fund Sol take private without participation from major voting shareholders or BCE

– potential to pay down funding using pro forma cash on hand

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Sol Take-Private – Alternatives Comparison Summary

Approaching the Special Committee to attempt reach agreement may have advantages over the “Pure Resources” alternative, but risks making a subsequent “Pure Resources” tender subject to “Entire Fairness” standard of review

Transaction Certainty Threshold

Regulatory Issues

Special Committee Cooperation

Management Cooperation

Delaware Standard of Review

Timing

Agreement with Special Committee

“Pure Resources” Tender Offer

1

Key: : Achieves objective : Does not achieve objective : Ability to achieve objective more enhanced –: Ability to achieve objective less enhanced

Notes:

1 Assuming no prior approach to Special Committee. If pursued subsequent to Special Committee approach, may not achieve objective.

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Sol Take-Private—Recommended Steps

Based on outcome of exploratory conversation with Special Committee and management, determine the order and timing of steps 1a and 1b

1a As appropriate, engage in further dialogue/negotiate with Special Committee/advisors and attempt to obtain recommendation for transaction

Determine price expectations and expected timing for response

Special Committee view on requirement for “Majority of the Minority” provision

May make a subsequent “Pure Resources ” tender offer subject to “Entire Fairness” standard

1b Privately approach major third party shareholders to gain support for a sale at small premium to market

Deliver strong message that alternatives are to accept offer or wait until Sol debt becomes cash pay next year

Individual shareholders may perceive opportunity for “hold-up” value

– communication needs to be well coordinated

2 Launch public tender offer to acquire 100% of outstanding shares

To be followed by short or long form merger if negotiated with Special Committee or short form merger if “Pure Resources” method pursued

Potential to launch tender prior to regulatory approval

Potentially approach BCE prior to launch

3 Squeeze-out minority shareholders if 90% of voting shares are acquired in tender offer

If negotiated with Special Committee and “Majority of Minority” required, pursue long form merger if only 88% acquired (50% requirement if no “Majority of Minority”)

4 Finalize short or long form merger

Regulatory approvals prior to completion of transaction (assuming tender conditional on regulatory approval)

Potential to pay down funding from Sol balance sheet cash immediately after transaction closing

– depending on operating cash requirements

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Sol Take-Private – Mechanics and Timing

Timing Post Agreement / Launch1

Negotiate with the Special Committee

Majority of the Minority

Tender Offer

³90%

Short Form Merger

Filing of Articles of Merger

Acquisition Completed

5 Weeks

<90%

(but more than 87.7%)

Long Form Merger

>87.7% Vote

of All Shareholders

Acquisition Completed

3–4 Months

NO Majority of the Minority

>50% Vote

of All Shareholders

File 14(c) Information Statement

Filing of Articles of Merger

Acquisition Completed

2–3 Months

“Pure Resources” Tender Offer

³90%

Short Form Merger

Filing of Articles of Merger

Acquisition Completed

5 Weeks

<90%

Extend Tender Offer/ Increase Price

>90% Vote

of All Shareholders

Acquisition Completed

5 weeks – ?

Notes:

1 Excluding time to approach and negotiate with Special Committee and/or Sol key shareholders

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APPENDIX A

Additional Materials

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Sol Pro Forma Ownership

Hortus control of 75% of Sol post exercise of its “in the money” warrants and conversion of its non-voting to voting shares

Non-Voting to Voting Total Voting Total Economic Non-Voting Voting Conversion Adjustments With Conversion Shares

Shares Shares (%) Shares (%) Shares (%) Shares (%)1

Hortus Share Ownership 29,946,362 23,452,480 48.0% 9,365,422 1.6% 32,817,902 49.6% 53,398,842 38.8%

Shares Held in Escrow

Apollo 442,825 0.9% 442,825 0.7%

Wells Fargo 7,906,737 1,634,708 3.3% 9,541,445 14.4%

Total Common Stock 7,906,737 2,077,533 4.3% 10.8% 9,984,270 15.1% 9,984,270 7.3%

Total Common Stock Control 37,853,099 25,530,013 52.2% 9,365,422 12.5% 42,802,172 64.7% 63,383,112 46.1%

Warrants2,3

Total Warrants 28,750,000 37.0% 28,750,000 30.3% 28,750,000 20.9%

Total Control (Including Warrants) 37,853,099 54,280,013 69.9% 71,552,172 75.4% 92,133,112 67.0%

Other Shareholders 22,105,400 23,335,440 30.1% 23,335,440 24.6% 45,440,840 33.0%

Fully Diluted Shares Outstanding 59,958,499 77,615,453 100.0% 94,887,612 100.0% 137,573,952 100.0%

Source: Sol management presentation

Notes:

1 Represents ownership of fully diluted shares outstanding

2 The warrants may be exercised for voting or non-voting shares

3 Exclusive of ten-year warrants to purchase 9.1 million shares of the Company’s common stock, with an exercise price of $10 per share

Potential further dilution from existing agreements

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Analysis of Other Significant Sol Shareholders

Possible for Hortus to obtain >90% of Sol shares without Columbia Capital

Voting (Current) Shares (000s)

Voting (Current) (%)

Voting (post-Conv) Shares (000s)

Voting (post-Conv) (%)

Non-Voting Shares (000s)

Total Shares

(000s) (%)

Equity Value ($mm)

Current 2 $3.50 $4.00 $4.50 $5.00

Total Hortus Control (with Warrants)1 54,280 69.9% 71,552 75.4% 92,133 67.0% $294.8 $322.5 $368.5 $414.6 $460.7

BCE - - - - 22,105 22,105 16.1% 70.7 77.4 88.4 99.5 110.5

Solus 4,750 6.1% 4,750 5.0% - 4,750 3.5% 15.2 16.6 19.0 21.4 23.8

Bay Harbour 3,055 3.9% 3,055 3.2% - 3,055 2.2% 9.8 10.7 12.2 13.7 15.3

Och Ziff 2,228 2.9% 2,228 2.3% - 2,228 1.6% 7.1 7.8 8.9 10.0 11.1

Cumulative Public Potentially Friendly

Shareholders 10,032 12.9% 10,032 10.6% 32,138 23.4% 102.8 112.5 128.6 144.6 160.7

Total Hortus and Potential Partners 64,312 82.9% 81,585 86.0% 124,271 90.3% $397.7 $434.9 $497.1 $559.2 $621.4

Columbia Capital 5,553 7.2% 5,553 5.9% - 5,553 4.0% 17.8 19.4 22.2 25.0 27.8

Alexander Good 936 1.2% 936 1.0% - 936 0.7% 3.0 3.3 3.7 4.2 4.7

George Hayward 625 0.8% 625 0.7% - 625 0.5% 2.0 2.2 2.5 2.8 3.1

Millenium 350 0.5% 350 0.4% - 350 0.3% 1.1 1.2 1.4 1.6 1.8

Scott Macleod 557 0.7% 557 0.6% - 557 0.4% 1.8 1.9 2.2 2.5 2.8

Tudor 320 0.4% 320 0.3% - 320 0.2% 1.0 1.1 1.3 1.4 1.6

Other Shareholders 4,963 6.4% 4,963 5.2% - 4,963 3.6% 15.9 17.4 19.9 22.3 24.8

Total Non Hortus Ownership 23,335 30.1% 23,335 24.6% 22,105 45,441 33.0% $145.4 $159.0 $181.8 $204.5 $227.2

Total Shares Outstanding 77,615 94,888 137,574 100.0% 440.2 481.5 550.3 619.1 687.9

Source: Sol management presentation, Proxy filing

Notes:

1 Inclusive of Sol shares held by Hortus directly and in Escrow

2 Based on Sol share price of $3.20 at closing on 08-28-2009

Funding requirement in the range of $160-227mm at a potential purchase price of $3.50-5.00

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Sol Take-Private Alternatives – Considerations

Approaching select large shareholders in advance may make sense in any alternative

Description

Considerations

Negotiate Merger with

Special Committee

Offer to shareholders via negotiation with Special Committee Potentially contingent upon *** transaction May include negotiation of Hortus debt/equity swap

Transaction subject to “Entire Fairness” standard on price and process Special Committee empowered to negotiate independently with power to say “no” Could be structured as (i) merger or (ii) first-step tender offer followed by back-end short or long form merger – if “majority of the minority” shareholder vote required, will increase time to close Lower hurdle for transaction certainty – vote guaranteed if no “majority of the minority” provision required

– 87.7% vote if “majority of the minority” provision required Potential to have advance discussions with major shareholders to get voting agreement prior to announcement of transaction If unsuccessful, could follow with a tender offer directly to shareholders Appraisal rights available to shareholders who do not participate in offer Any debt/equity swap agreement will likely include negotiation/agreement on subsequent minority squeeze-out

“Pure Resources” Public Tender Offer

Tender offer directly to Sol shareholders Squeeze-out minority shareholders after 90% of voting shares are acquired

Negotiation could take

place pre or post launch Potentially a reasonably finite timetable, subject to FCC

Tender offer must meet certain criteria:

– offer for all shares, non-waivable “majority of the minority”, obligatory short-form merger on same terms if 90%+ tendered Does not necessitate negotiation with Special Committee No shareholder vote “Majority of the minority” provision may induce mischief (e.g., accumulation of a blocking position to attempt to extract a higher offer) Potential to have advance discussions with major shareholders to get voting agreement prior to launch of tender Most favorable structure from perspective of Delaware standard of review if transaction is challenged Appraisal rights available to shareholders who do not participate in offer

Privately Negotiated Purchase of Stock Directly from Sol shareholders

Privately negotiated purchase of Sol shares from major shareholders in order to achieve 90% voting share ownership Squeeze-out minority shareholders after 90% of voting shares are acquired Potential to negotiate privately prior to achieving 90% voting stake Remaining minority shareholders entitled to appraisal rights (only right available) Limited precedent Avoids negotiation with Special Committee No shareholder vote Limits the risk of “majority of the minority” induced mischief

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This presentation has been prepared by UBS Securities LLC (“UBS”) for the exclusive use of the party to whom UBS delivers this presentation (together with its subsidiaries and affiliates, the “Client”) using information provided by the Client and other publicly available information. UBS has not independently verified the information contained herein, nor does UBS make any representation or warranty, either express or implied, as to the accuracy, completeness or reliability of the information contained in this presentation. Any estimates or projections as to events that may occur in the future (including projections of revenue, expense, net income and stock performance) are based upon the best judgment of UBS from the information provided by the Client and other publicly available information as of the date of this presentation. There is no guarantee that any of these estimates or projections will be achieved. Actual results will vary from the projections and such variations may be material. Nothing contained herein is, or shall be relied upon as, a promise or representation as to the past or future. UBS expressly disclaims any and all liability relating or resulting from the use of this presentation.

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Contact Information

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