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TABLE OF CONTENTS
INDEX TO UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL STATEMENTS
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 (Amendment No. )
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Preliminary Proxy Statement |
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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
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Definitive Proxy Statement |
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Definitive Additional Materials |
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Soliciting Material under §240.14a-12 |
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| LIBERTY PROPERTY TRUST | ||||
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(Name of Person(s) Filing Proxy Statement, if other than the Registrant) |
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No fee required. |
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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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| (1) | Title of each class of securities to which transaction applies: |
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| (2) | Aggregate number of securities to which transaction applies: |
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| (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): |
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| (4) | Proposed maximum aggregate value of transaction: |
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Fee paid previously with preliminary materials. |
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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
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| (2) | Form, Schedule or Registration Statement No.: |
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PROXY STATEMENT/PROSPECTUS
To the Shareholders of Liberty Property Trust:
The board of directors of Prologis, Inc., which we refer to as "Prologis," and the board of trustees of Liberty Property Trust, which we refer to as "Liberty," have each unanimously approved a combination of Prologis and Liberty to bring together two complementary owners, operators and developers of industrial real estate.
Prologis and Liberty, together with certain of their subsidiaries, entered into an agreement and plan of merger on October 27, 2019. In the proposed transaction, Liberty shareholders will receive 0.675 of a newly issued share of Prologis common stock for each Liberty common share that they own. The exchange ratio described above is fixed and will not be adjusted to reflect stock price changes prior to closing. Prologis common stock and Liberty common shares are each traded on the New York Stock Exchange, which we refer to as the "NYSE," under the symbols "PLD" and "LPT," respectively. Based on the closing price of PLD common stock on the NYSE of $90.86 on October 25, 2019, the last trading day before public announcement of the proposed transaction, the exchange ratio represented approximately $61.33 in PLD common stock for each Liberty common share. Based on the closing price of PLD common stock on the NYSE of $88.36 on December 16, 2019, the latest practicable date before the date of this proxy statement, the exchange ratio represented approximately $59.64 in PLD common stock for each Liberty common share.
The combination of Liberty and Prologis will be accomplished through a series of transactions consisting of a first-step merger of an indirect wholly owned subsidiary of Liberty with and into Liberty, followed by a second-step merger of a parent entity of that subsidiary with a wholly owned subsidiary of Prologis. We refer to the foregoing mergers as the "company mergers." Following the company mergers, the outstanding equity interests in Liberty will be contributed to Prologis, L.P., which we refer to as "Prologis OP," and thereafter, Liberty Property Limited Partnership, which we refer to as "Liberty OP," will be merged in a third-step merger with a wholly owned subsidiary of Prologis OP, with Liberty OP being the surviving entity. In addition to the exchange of Liberty common shares for Prologis common stock, if the mergers are completed, each common limited partnership interest of Liberty OP, or the Liberty OP common units, will be converted into 0.675 of a newly issued common limited partnership interest of Prologis OP, and each preferred limited partnership interest of Liberty OP, or the Liberty OP preferred units, will be converted into one newly issued preferred limited partnership interest of Prologis OP. The obligations of parties to effect the mergers are subject to the satisfaction or waiver of certain customary conditions set forth in the merger agreement (including the approval of Liberty's shareholders).
Upon completion of the company mergers, former Liberty shareholders will own approximately 14% of the then outstanding Prologis common stock, based on the number of shares of Prologis common stock outstanding as of December 16, 2019 and the number of Liberty common shares and stock-based awards outstanding as of December 16, 2019. In connection with the company mergers, based on the outstanding Liberty common shares as of December 16, 2019, we anticipate that Prologis will issue a total of approximately 107,453,018 shares of Prologis common stock, including (i) 106,731,384 shares of Prologis common stock in exchange for the outstanding Liberty common shares in the company mergers, which includes up to 352,826 shares of Prologis common stock to be issued in exchange for the Liberty restricted stock units, (ii) up to 4,252 shares of Prologis common stock that may be issued in exchange for Liberty common shares that may be issued under the Liberty employee share purchase plan and dividend reinvestment plan and (iii) up to 717,382 shares of Prologis common stock that may be issued in respect of Liberty stock options.
Each of the company mergers is intended to qualify as a reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended, for U.S. federal income tax purposes, and accordingly, assuming each of the company mergers so qualify, Liberty shareholders generally will not recognize any gain or loss for U.S. federal income tax purposes on the surrender of their Liberty common shares and receipt of Prologis common stock, except with respect to cash they may receive in lieu of any fractional shares of Prologis common stock.
Liberty will hold a special meeting of its shareholders to vote on a proposal to approve the company mergers, as well as certain related proposals. The record date for determining the shareholders entitled to receive notice of, and to vote at, the Liberty special meeting is December 20, 2019. The mergers cannot be completed unless, among other matters, Liberty shareholders approve the company mergers on the terms and conditions set forth in the merger agreement by the affirmative vote of holders of at least two-thirds of the Liberty common shares entitled to vote on such matter.
This proxy statement/prospectus contains important information about Prologis, Liberty, the mergers, the merger agreement and the Liberty special meeting. This document is also a prospectus for shares of Prologis common stock that will be issued to Liberty shareholders and holders of awards under Liberty equity incentive plans pursuant to the merger agreement. We encourage you to read this proxy statement/prospectus and the annexes and documents incorporated herein by reference carefully before voting, including the section entitled "Risk Factors" beginning on page 35.
Your vote is very important, regardless of the number of Liberty common shares you own. Whether or not you plan to attend the Liberty special meeting, please submit a proxy to vote your shares as promptly as possible to make sure that your Liberty common shares are represented at the Liberty special meeting. Please review this proxy statement/prospectus for more complete information regarding the mergers and the Liberty special meeting.
The Liberty board of trustees unanimously recommends that the Liberty shareholders vote "FOR" the proposal to approve the company mergers contemplated by merger agreement and described herein, which approval is necessary to complete the mergers.
Sincerely,
William
P. Hankowsky
Chairman, President, and Chief Executive Officer
Liberty Property Trust
Neither the Securities and Exchange Commission nor any state securities regulatory authority has approved or disapproved of the mergers or the securities to be issued under this proxy statement/prospectus or has passed upon the adequacy or accuracy of the disclosure in this proxy statement/prospectus. Any representation to the contrary is a criminal offense.
This proxy statement/prospectus is dated December 23, 2019, and is first being mailed to Liberty shareholders on or about December 23, 2019.
LIBERTY PROPERTY TRUST
650 East Swedesford Road
Wayne, Pennsylvania 19087
NOTICE OF SPECIAL MEETING OF SHAREHOLDERS
TO BE HELD ON JANUARY 30, 2020
To the Shareholders of Liberty Property Trust:
A special meeting of the shareholders of Liberty Property Trust, a Maryland real estate investment trust, which we refer to as "Liberty," will be held at the offices of Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania 19103 on January 30, 2020, commencing at 11:00 am, local time, to consider and vote upon the following matters:
- 1.
- a
proposal to approve the merger of a newly created indirect wholly owned subsidiary of Liberty with and into Liberty, with Liberty continuing as the surviving entity
and as an indirect wholly owned subsidiary of Leaf Holdco Property Trust, a Maryland real estate investment trust and current wholly owned subsidiary of Liberty, which we refer to as "New Liberty
Holdco," followed by the merger of New Liberty Holdco with and into Lambda REIT Acquisition LLC, a Maryland limited liability company and a wholly owned subsidiary of Prologis, which we refer
to as "Prologis Merger Sub," with Prologis Merger Sub continuing as the surviving company, pursuant to which each outstanding Liberty common share of beneficial interest will be converted into the
right to receive 0.675 of a newly issued share of Prologis common stock (we refer to the foregoing mergers as the "company mergers"), in each case, pursuant to, and on the terms and conditions set
forth in, the Agreement and Plan of Merger, dated as of October 27, 2019, as it may be amended from time to time, by and among Prologis, Prologis OP, Prologis Merger Sub, Prologis OP Merger
Sub, Liberty, Liberty OP and New Liberty Holdco (which we refer to as the "merger agreement," a copy of which is attached as Annex A to the proxy statement/prospectus accompanying this notice),
on the terms and conditions set forth in the merger agreement;
- 2.
- a
non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with
the company mergers and the other transactions contemplated by the merger agreement; and
- 3.
- a proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
Liberty does not expect to transact any other business at the Liberty special meeting or any adjournment or postponement thereof. Please refer to the attached proxy statement/prospectus for further information with respect to the business to be transacted at the Liberty special meeting. The board of trustees of Liberty, which we refer to as the "Liberty board," has fixed the close of business on December 20, 2019 as the record date for the determination of Liberty's shareholders entitled to receive notice of, and to vote at, the Liberty special meeting and any adjournments or postponements of the Liberty special meeting. Only holders of record of Liberty common shares at the close of
business on the record date are entitled to receive notice of, and to vote at, the Liberty special meeting.
Approval of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of holders of at least two-thirds of the Liberty common shares outstanding and entitled to vote on such proposal. If you do not vote on the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, this will have the same effect as a vote by you against the approval of such proposal. The company mergers cannot be completed without the approval by Liberty's shareholders of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
Approval of the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement requires the affirmative vote of a majority of all votes cast on such proposal.
Approval of the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of a majority of all votes cast on such proposal.
The Liberty board has unanimously approved the merger agreement, the company mergers and the other transactions contemplated thereby and unanimously recommends that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
YOUR VOTE IS IMPORTANT
Whether or not you plan to attend the Liberty special meeting, please submit a proxy to vote your shares as promptly as possible to make sure that your shares are represented at the Liberty special meeting. If Liberty shareholders of record return properly executed proxies but do not indicate how their Liberty common shares should be voted on a proposal, the Liberty common shares represented by their properly executed proxy will be voted as the Liberty board recommends and, therefore, FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. Even if you plan to attend the Liberty special meeting in person, we urge you to submit your proxy as promptly as possible by (1) accessing the Internet website specified on your proxy card, (2) calling the toll-free number specified on your proxy card or (3) completing, signing, dating and returning the enclosed proxy card in the accompanying postage-paid envelope prior to the Liberty special meeting to ensure that your shares will be represented and voted at the Liberty special meeting.
To submit a proxy, complete, sign, date and mail your proxy card in the preaddressed postage-paid envelope provided or, if the option is available to you, call the toll-free telephone number listed on your proxy card or use the Internet as described in the instructions on the enclosed proxy card to submit your proxy. Submitting a proxy will assure that your vote is counted at the Liberty special meeting if you do not attend in person. If your Liberty common shares are held in "street name" by your broker or other nominee, only your broker or other nominee can vote your Liberty common
shares and the vote cannot be cast unless you provide instructions to your broker or other nominee on how to vote or obtain a legal proxy from your broker or other nominee. You should follow the directions provided by your broker or other nominee regarding how to instruct your broker or other nominee to vote your Liberty common shares. You may revoke your proxy at any time before it is voted at the Liberty special meeting. Please review the proxy statement/prospectus accompanying this notice for more complete information regarding the company mergers, the other transactions contemplated by the merger agreement and the Liberty special meeting.
This notice and the enclosed proxy statement/prospectus are first being mailed to Liberty shareholders on or about December 23, 2019.
| By Order of the Board of Trustees of Liberty Property Trust, | ||
|
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| Shawn Neuman Secretary |
Wayne,
PA
December 23, 2019
This proxy statement/prospectus incorporates important business and financial information about Prologis and Liberty from other documents that are not included in or delivered with this proxy statement/prospectus. See "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
Documents incorporated by reference are also available to Liberty shareholders without charge upon written or oral request. You can obtain any of these documents by requesting them in writing or by telephone from the appropriate company at the following addresses and telephone numbers.
| Prologis, Inc. | Liberty Property Trust | |
| Pier 1, Bay 1 | 650 East Swedesford Road, Suite 400 | |
| San Francisco, CA 94111 | Wayne, PA 19087 | |
| Attention: Investor Relations | Attention: Investor Relations | |
| (415) 394-9000 | (610) 648-1700 | |
| www.prologis.com | www.libertyproperty.com |
To receive timely delivery of the requested documents in advance of the applicable special meeting, you should make your request no later than January 23, 2020.
This proxy statement/prospectus, which forms part of a registration statement on Form S-4 filed by Prologis (File No. 333-235260) with the Securities and Exchange Commission, which we refer to as the SEC, constitutes a prospectus of Prologis for purposes of the Securities Act of 1933, as amended, which we refer to as the "Securities Act," with respect to the shares of Prologis common stock to be issued to Liberty shareholders in exchange for Liberty common shares and holders of awards under Liberty equity incentive plans pursuant to the merger agreement. This proxy statement/prospectus also constitutes a proxy statement for Liberty for purposes of the Securities Exchange Act of 1934, as amended, which we refer to as the "Exchange Act." In addition, it constitutes a notice of meeting with respect to the Liberty special meeting.
You should rely only on the information contained or incorporated by reference in this proxy 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 proxy statement/prospectus. This proxy statement/prospectus is dated December 23, 2019. You should not assume that the information contained in, or incorporated by reference into, this proxy statement/prospectus is accurate as of any date other than that date. Neither our mailing of this proxy statement/prospectus to Liberty shareholders nor the issuance by Prologis of shares of its common stock to Liberty shareholders or holders of awards under Liberty equity incentive plans pursuant to the merger agreement will create any implication to the contrary.
This proxy statement/prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy, in any jurisdiction in which or from any person to whom it is unlawful to make any such offer or solicitation in such jurisdiction. Information contained in this proxy statement/prospectus regarding Prologis has been provided by Prologis and information contained in this proxy statement/prospectus regarding Liberty has been provided by Liberty.
i
ii
iii
The following terms are used throughout this proxy statement/prospectus. Unless stated otherwise, the terms set forth below, whenever used in this proxy statement/prospectus, have the following meanings:
- •
- "Citi" means Citigroup Global Markets Inc., financial advisor to Liberty.
- •
- "closing" means the closing of the mergers.
- •
- "closing date" means the date on which the closing actually occurs.
- •
- "Code" means the Internal Revenue Code of 1986, as amended.
- •
- "Combined Company" means Prologis and its subsidiaries after the effective time of the Topco merger.
- •
- "Combined Company common stock" means the common stock of Prologis after the effective time of the Topco merger.
- •
- "company mergers" means the Liberty merger and the Topco merger.
- •
- "contribution" means the contribution of all of the outstanding equity interests of Liberty to Prologis OP in exchange for the issuance of
equity interests in Prologis OP (which we refer to as the "issuance") to certain other subsidiaries of Prologis.
- •
- "contribution and issuance effective time" means the date and time the contribution and issuance becomes effective.
- •
- "DLLCA" means the Delaware Limited Liability Company Act.
- •
- "Exchange Act" means the Securities Exchange Act of 1934, as amended.
- •
- "exchange agent" means Computershare Trust Company, N.A.
- •
- "exchange ratio" means the right to receive 0.675 shares of Prologis common stock or 0.675 Prologis OP common units for each Liberty common
share or Liberty OP common unit, respectively.
- •
- "GAAP" means generally accepted accounting principles as applied in the United States.
- •
- "Goldman Sachs" means Goldman Sachs & Co. LLC, financial advisor to Liberty.
- •
- "Innisfree" means Innisfree M&A Incorporated.
- •
- "Liberty" means Liberty Property Trust.
- •
- "Liberty board" means the board of trustees of Liberty.
- •
- "Liberty common shares" means the common shares of beneficial interest of Liberty, par value $0.001 per share.
- •
- "Liberty merger" means the merger of Liberty Merger Sub with and into Liberty, with Liberty continuing as the surviving entity. The Liberty
merger is referred to in the merger agreement as the "Company Merger."
- •
- "Liberty merger effective time" means the date and time the Liberty merger becomes effective.
- •
- "Liberty Merger Sub" means an indirect wholly owned subsidiary of Liberty to be formed as a Maryland limited liability company after the date
of the merger agreement.
- •
- "Liberty OP" means Liberty Property Limited Partnership.
- •
- "Liberty OP common units" means the common limited partnership interests of Liberty OP other than the Liberty OP preferred units.
- •
- "Liberty OP partnership agreement" means the Second Amended and Restated Agreement of Limited Partnership of Liberty OP, as amended.
- •
- "Liberty OP preferred units" means the partnership interests of Liberty OP designated as "6.25% Series I-2 Cumulative Redeemable
Preferred Partnership Interests" under the Liberty OP partnership agreement.
- •
- "Liberty parties" means Liberty, Liberty OP and New Liberty Holdco.
- •
- "Liberty shareholder approval" means the affirmative vote of the holders of at least two-thirds of the outstanding Liberty common shares
entitled to vote on the approval of the company mergers.
- •
- "Maryland REIT Law" means the applicable provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland,
as amended.
- •
- "merger agreement" means the Agreement and Plan of Merger, dated as of October 27, 2019, by and among the Prologis parties and the
Liberty parties, as it may be amended from time to time, a copy of which is attached as Annex A to this proxy statement/prospectus and is incorporated herein by reference.
- •
- "merger consideration" means 0.675 shares of Prologis common stock for each New Liberty Holdco common share.
- •
- "mergers" means the Liberty merger, the Topco merger and the partnership merger.
- •
- "MGCL" means the Maryland General Corporation Law.
- •
- "MLLCA" means the Maryland Limited Liability Company Act.
- •
- "New Liberty Holdco" means Leaf Holdco Property Trust.
- •
- "New Liberty Holdco common shares" means the common shares of beneficial interest, par value $0.001 per share, of New Liberty Holdco.
- •
- "new Prologis common units" means the new Prologis OP common units into which the Liberty OP common units are converted in the partnership
merger.
- •
- "new Prologis preferred units" means the new limited partnership interests in Prologis OP to be designated as "6.25% Class B Cumulative
Redeemable Preferred Partnership Units" (or another designation as determined by Prologis) under the Prologis OP partnership agreement.
- •
- "NYSE" means the New York Stock Exchange.
- •
- "partnership merger" means the merger of Prologis OP Merger Sub with and into Liberty OP, with Liberty OP continuing as the surviving entity.
- •
- "partnership merger effective time" means the date and time the partnership merger becomes effective.
- •
- "partnership merger preferred consideration" means one new validly issued new Prologis preferred unit for each Liberty OP preferred unit.
- •
- "Pennsylvania law" means Title 15 of the Pennsylvania Consolidated Statutes, as amended.
- •
- "Prologis" means Prologis, Inc.
- •
- "Prologis board" means the board of directors of Prologis.
- •
- "Prologis common stock" means the common stock of Prologis, par value $0.01 per share.
- •
- "Prologis Merger Sub" means Lambda REIT Acquisition LLC.
2
- •
- "Prologis OP" means Prologis, L.P.
- •
- "Prologis OP common unit" means a limited partnership interest in Prologis OP designated as a "Common Unit" under the Prologis OP partnership
agreement.
- •
- "Prologis OP Merger Sub" means Lambda OP Acquisition LLC.
- •
- "Prologis OP partnership agreement" means the thirteenth amended and restated agreement of limited partnership of Prologis OP, as amended from
time to time.
- •
- "Prologis OP preferred units" means a limited partnership interest in Prologis OP designated as a "Series Q Preferred Partnership Unit"
under the Prologis OP partnership agreement.
- •
- "Prologis parties" means Prologis, Prologis OP, Prologis Merger Sub and Prologis OP Merger Sub.
- •
- "SDAT" means the State Department of Assessments and Taxation of the State of Maryland.
- •
- "SEC" means the Securities and Exchange Commission.
- •
- "Securities Act" means the Securities Act of 1933, as amended.
- •
- "surviving partnership" means Liberty OP after the effective time of the partnership merger.
- •
- "Topco merger" means the merger of New Liberty Holdco with and into Prologis Merger Sub, with Prologis Merger Sub continuing as the surviving
entity.
- •
- "Topco merger effective time" means the date and time the Topco merger becomes effective.
- •
- "U.S. Treasury regulations" means regulations (as in effect from time to time) of the U.S. Department of Treasury under the Code.
- •
- "VWAP of Prologis common stock" means the volume weighted average price of Prologis common stock for the 10 trading days immediately prior to the 2nd business day prior to the date of the Topco merger effective time, starting with the opening of trading on the 1st trading day of such period and ending with the closing of trading on the trading day immediately prior to the 2nd business day prior to the date of the Topco merger effective time, as reported by Bloomberg (or, in the event Bloomberg does not report such information, such third-party service as is mutually agreed upon in good faith by Prologis and Liberty).
3
The following are answers to some questions that Liberty shareholders may have regarding the proposed combination of Prologis and Liberty. Prologis and Liberty urge you to read carefully this entire proxy statement/prospectus, including the Annexes, and the documents incorporated by reference into this proxy statement/prospectus, because the information in this section does not provide all the information that might be important to you.
- Q:
- What is the proposed transaction?
- A:
- Prologis
and Liberty have entered into a merger agreement, pursuant to which, subject to the terms and conditions set forth in the merger agreement, Prologis will
acquire Liberty in four steps: (i) first, in the Liberty merger, Liberty Merger Sub will merge with and into Liberty, with Liberty continuing as the surviving entity and a wholly owned
subsidiary of New Liberty Holdco (which is currently a wholly owned subsidiary of Liberty), (ii) thereafter, in the Topco merger, New Liberty Holdco will merge with and into Prologis Merger
Sub, with Prologis Merger Sub continuing as the surviving entity and a wholly owned subsidiary of Prologis, (iii) thereafter, in the contribution and issuance, Prologis, its applicable
subsidiaries and Prologis Merger Sub will cause all of the outstanding equity interests of Liberty to be contributed to Prologis OP in exchange for the issuance by Prologis OP of Prologis OP common
units to other subsidiaries of Prologis, and (iv) thereafter, in the partnership merger, Prologis OP Merger Sub will merge with and into Liberty OP, with Liberty OP continuing as the surviving
entity and a wholly owned subsidiary of Prologis OP.
- Q:
- What will happen in the proposed transaction?
- A:
- At the Liberty merger effective time, each issued and outstanding Liberty common share as of immediately before the Liberty merger effective time will be automatically converted into the right to receive one New Liberty Holdco common share. Also as of the Liberty merger effective time, each outstanding equity award relating to Liberty common shares will be automatically converted into an equivalent award relating to an equal number of New Liberty Holdco common shares.
At the Topco merger effective time, each New Liberty Holdco common share issued and outstanding immediately prior to the Topco merger effective time (other than New Liberty Holdco common shares owned by New Liberty Holdco or any of New Liberty Holdco's wholly owned subsidiaries and New Liberty Holdco common shares owned by Prologis or any of Prologis' wholly owned subsidiaries) will be automatically converted into the right to receive 0.675 shares of Prologis common stock, together with cash in lieu of fractional shares, without interest, upon the terms and subject to the conditions set forth in the merger agreement.
At the Topco merger effective time, each outstanding restricted stock award, restricted stock unit award, and stock option relating to New Liberty Holdco common shares will vest and be cancelled in exchange for a payment of the merger consideration (or a cash payment equal to the value of the merger consideration, in the case of an award that is payable in cash by its terms) in respect of each underlying New Liberty Holdco common share (reduced by the aggregate exercise price in the case of each stock option). Performance-based restricted stock unit awards will vest based on the actual level of achievement of the applicable performance goals through the day immediately prior to the Topco merger effective time (or, in the case of awards granted in 2017, if the merger occurs on or after January 1, 2020, based on actual performance during the completed performance period).
At the partnership merger effective time, (i) the general partner interests in Liberty OP as of immediately prior to the partnership merger effective time will remain general partnership interests in Liberty OP, (ii) each Liberty OP common unit that is issued and outstanding immediately prior
4
to the partnership merger effective time will automatically be converted into 0.675 new validly issued Prologis OP common units and each holder of Liberty OP common units will be admitted as a limited partner of Prologis OP in accordance with the terms of the Prologis OP partnership agreement (no fractional new Prologis OP common units will be issued in the partnership merger; rather, any fractional Prologis OP common unit will be rounded to the nearest whole number), and (iii) each Liberty OP preferred unit that is issued and outstanding immediately prior to the partnership merger effective time will automatically be converted into one new validly issued new Prologis preferred unit with substantially the same terms and rights as such Liberty OP preferred units immediately prior to the partnership merger and each holder of new Prologis preferred units will be admitted as a limited partner of Prologis OP in accordance with the terms of Prologis OP's partnership agreement.
Prior to the closing of the mergers, Prologis, as general partner of Prologis OP, will cause the Prologis OP partnership agreement to be amended to create and authorize such new Prologis preferred units.
See "The Merger Agreement—Merger Consideration; Effects of the Mergers" beginning on page 113 for detailed descriptions of the merger consideration and treatment of securities.
- Q:
- What happens if the market price of shares of Prologis common stock or Liberty common shares changes before the closing of the
mergers?
- A:
- No
change will be made to the exchange ratio of 0.675 if the market price of shares of Prologis common stock or Liberty common shares changes before the mergers. As a
result, the market value of the consideration to be received by Liberty shareholders in the Topco merger and Liberty OP unitholders in the partnership merger will increase or decrease depending on the
market price of shares of Prologis common stock at the effective time of the mergers.
- Q:
- Why am I receiving this proxy statement/prospectus?
- A:
- The Liberty board is using this proxy statement/prospectus to solicit proxies of Liberty shareholders in connection with seeking approval of the company mergers. In addition, Prologis is using this proxy statement/prospectus as a prospectus for Liberty shareholders because Prologis is offering shares of Prologis common stock to be issued in connection with the company mergers. The company mergers cannot be completed unless the holders of Liberty common shares vote to approve the company mergers on the terms and conditions set forth in the merger agreement.
Liberty will hold a meeting of its shareholders to obtain this approval and to consider other proposals as described elsewhere in this proxy statement/prospectus.
This proxy statement/prospectus contains important information about the company mergers and the other proposals being voted on at the Liberty special meeting and you should read it carefully. The enclosed voting materials allow you to vote your Liberty common shares without attending the special meeting.
Your vote is important. You are encouraged to submit your proxy as promptly as possible.
- Q:
- Am I being asked to vote on any other proposals at the special meetings in addition to the company mergers
proposal?
- A:
- At the Liberty special meeting, Liberty shareholders will be asked to consider and vote upon the following additional proposals:
5
- •
- A non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of
Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement; and
- •
- To approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies
in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
- Q:
- Why are Prologis and Liberty proposing the mergers?
- A:
- Among
other reasons, because if completed, the mergers are expected to provide a number of significant potential strategic opportunities and benefits, including
combining two complementary portfolios with similar business strategies in top United States markets, allowing the Combined Company to capture immediate and substantial cost synergies and creating a
balanced platform from a geographic and customer perspective in strategic markets and submarkets. The Combined Company will continue as the largest industrial real estate investment trust, or "REIT,"
by total enterprise value and among the largest publicly traded United States REITs. To review the reasons of the Liberty board for the mergers in greater detail, see "The
Mergers—Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers" beginning on page 65.
- Q:
- Who will be the board of directors and management of the Combined Company?
- A:
- There
will be no change to the current members of the Prologis board or executive officers as a result of the mergers. Hamid R. Moghadam will continue to serve as
Chief Executive Officer and Chairman of the Combined Company.
- Q:
- Will Prologis and Liberty continue to pay dividends or distributions prior to the closing of the
mergers?
- A:
- Yes.
The merger agreement permits Prologis to pay, subject to certain other exceptions related to preferred stock, (i) regular quarterly cash distributions at a quarterly rate not to exceed $0.53 per share of Prologis common stock, except that the Prologis board may increase such dividend by no more than 15%, (ii) regular distributions that are required to be made in respect of the Prologis OP common units in connection with any dividends paid on the shares of the Prologis common stock, (iii) distributions that are required to be made in respect of the Prologis OP preferred units under the Prologis OP partnership agreement and (iv) any distribution that is reasonably necessary to maintain its REIT qualification and/or to avoid the imposition of United States federal income or excise tax.
The merger agreement permits Liberty to pay, subject to certain other exceptions related to preferred shares, (i) regular quarterly cash distributions at a quarterly rate not to exceed $0.41 per share of Liberty common shares, (ii) regular distributions that are required to be made in respect of the Liberty OP common units in connection with any dividends paid on the Liberty common shares, (iii) distributions that are required to be made in respect of Liberty OP preferred units under the Liberty OP partnership agreement and (iv) any distribution that is reasonably necessary to maintain its REIT qualification and/or to avoid the imposition of United States federal income or excise tax.
The timing of quarterly dividends will be coordinated by Prologis and Liberty so that if either Prologis stockholders or Liberty shareholders receive a dividend for any particular quarter prior to the closing date, the stockholders or shareholders of the other entity will also receive a dividend for that quarter prior to the closing date.
6
- Q:
- When and where is the special meeting of the Liberty shareholders?
- A:
- The
Liberty special meeting will be held at the offices of Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania 19103 on
January 30, 2020, commencing at 11:00 am, local time.
- Q:
- Who can vote at the Liberty special meeting?
- A:
- All
holders of Liberty common shares of record as of the close of business on December 20, 2019, the record date for determining shareholders entitled to
notice of and to vote at the Liberty special meeting, are entitled to receive notice of and to vote at the Liberty special meeting. As of December 16, 2019, there were 157,597,864 Liberty
common shares outstanding and entitled to vote at the Liberty special meeting, held by approximately 773 holders of record. Each outstanding Liberty common share is entitled to one vote on each
proposal presented at the Liberty special meeting.
- Q:
- What constitutes a quorum?
- A:
- To
constitute a quorum for the conduct of the Liberty special meeting, there must be present at the Liberty special meeting in person or by proxy shareholders
entitled to cast a majority of all the votes entitled to be cast. If you submit a proxy but fail to provide voting instructions or abstain on any of the proposals listed on the proxy card, your shares
will be counted for purpose of determining whether a quorum is present at the Liberty special meeting. If your shares are held in "street name" by your broker or other nominee and you do not tell the
nominee how to vote your shares, these shares will not be counted for purposes of determining whether a quorum is present for the transaction of business at the Liberty special meeting.
- Q:
- What vote is required to approve the proposals?
- A:
- The
proposals to be voted upon at the Liberty special meeting require the following votes in order to be approved:
- •
- Approval of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative
vote of holders of at least two-thirds of the Liberty common shares outstanding and entitled to vote on such proposal.
- •
- Approval of the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive
officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement requires the affirmative vote of holders of Liberty common shares
constituting a majority of all votes cast on such proposal.
- •
- Approval of the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to
solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of holders of Liberty
common shares constituting a majority of all votes cast on such proposal.
- Q:
- How does the Liberty board recommend that Liberty shareholders vote on the proposals?
- A:
- The Liberty board has unanimously approved the merger agreement, the company mergers and the other transactions contemplated by the merger agreement and recommends that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty
7
in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
For a more complete description of the recommendation of the Liberty board, see "The Mergers—Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers" beginning on page 65.
- Q:
- Do any of Liberty's named executive officers or trustees have interests in the mergers that may differ from those of Liberty
shareholders?
- A:
- Liberty's
named executive officers and trustees have interests in the mergers that are different from, or in addition to, their interests as Liberty shareholders. The
members of the Liberty board were aware of and considered these interests, among other matters, in evaluating the merger agreement and the mergers, and in recommending that Liberty shareholders vote FOR
the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. For a description of these interests, see
the section entitled "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers" beginning on page 97.
- Q:
- Are there any conditions to closing of the mergers that must be satisfied for the mergers to be
completed?
- A:
- In
addition to the approval of the Liberty shareholders of the company mergers on the terms and conditions set forth in the merger agreement, there are a number of
customary conditions that must be satisfied or waived for the mergers to be consummated. For a description of all of the conditions to the mergers, see "The Merger Agreement—Conditions to
Completion of the Mergers" beginning on page 138.
- Q:
- Are there risks associated with the mergers that I should consider in deciding how to vote?
- A:
- Yes.
There are a number of risks related to the mergers that are discussed in this proxy statement/prospectus described in the section entitled "Risk Factors"
beginning on page 35.
- Q:
- If I do not vote for a proposal, what effect will that have?
- A:
- If
you are a Liberty shareholder, failure to vote, abstentions and broker non-votes will have the same effect as votes AGAINST the proposal to approve the company
mergers. Failure to vote, abstentions and broker non-votes will have no effect on (i) the non-binding advisory proposal to approve certain compensation that may be paid or become payable to
certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, or (ii) the proposal to approve one or more
adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers and the other
transactions contemplated by the merger agreement.
- Q:
- Will my rights as a shareholder of Liberty change as a result of the company mergers?
- A:
- Yes. Liberty shareholders will have different rights following the effective time of the company mergers due to the differences between the governing documents of Prologis and Liberty. For more information regarding the differences in stockholder rights, see "Comparison of Rights of the Prologis Stockholders and the Liberty Shareholders" beginning on page 153.
8
- Q:
- When are the mergers expected to be completed?
- A:
- Prologis
and Liberty expect to complete the mergers as soon as reasonably practicable following satisfaction of all of the required conditions. If the Liberty
shareholders approve the company mergers and if the other conditions to closing the mergers are satisfied or waived, it is currently expected that the mergers will be completed in the first quarter of
2020. However, there is no guarantee that the conditions to the mergers will be satisfied or that the mergers will close.
- Q:
- What are the material United States federal income tax consequences to United States holders of the company
mergers?
- A:
- Each
of the Liberty merger and the Topco merger is intended to qualify as a reorganization within the meaning of Section 368(a) of the Code. Assuming that each
of the company mergers qualify as a reorganization, United States holders (as defined in the discussion under the heading "The Mergers—Material United States Federal Income Tax
Consequences of the Company Mergers") of Liberty common shares generally will not recognize gain or loss for United States federal income tax purposes upon the receipt of New Liberty Holdco common
shares in exchange for Liberty common shares in connection with the Liberty merger and United States holders of New Liberty Holdco common shares generally will not recognize gain or loss for United
States federal income tax purposes upon the receipt of Prologis common stock in exchange for New Liberty Holdco common shares in connection with the Topco merger, except with respect to cash received
in lieu of fractional shares of Prologis common stock. Holders of Liberty common shares should read the discussion under the heading "The Mergers—Material United States Federal Income Tax
Consequences of the Company Mergers" beginning on page 104 and consult their tax advisors to determine the tax consequences to them (including the application and effect of any state, local or
non-United States income and other tax laws) of the company mergers.
- Q.
- What happens if the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executed
officers of Liberty in connection with the company mergers is not approved?
- A.
- Approval,
on an advisory (non-binding) basis, of compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the
company mergers is not a condition to completion of the mergers. Because the vote regarding merger-related compensation is advisory only, it will not be binding on either Liberty or Prologis
regardless of whether the mergers are completed. Accordingly, if the mergers are completed, the merger-related compensation will become payable in connection with the mergers and a qualifying
termination of employment, subject only to the conditions applicable thereto, regardless of the outcome of the vote on the non-binding advisory proposal.
- Q:
- Are Liberty shareholders entitled to appraisal rights?
- A:
- No.
Liberty shareholders are not entitled to exercise appraisal rights in connection with the mergers. See "The Merger Agreement—Merger Consideration;
Effects of the Mergers—Dissenters' Rights" beginning on page 117 for more information.
- Q:
- What do I need to do now?
- A:
- After you have carefully read this proxy statement/prospectus, please respond by completing, signing and dating your proxy card or voting instruction card and returning it in the enclosed preaddressed postage-paid envelope or, if available, by submitting your proxy by one of the other methods specified in your proxy card or voting instruction card as promptly as possible so that your Liberty common shares will be represented and voted at the Liberty special meeting. Please
9
refer to your proxy card or voting instruction card forwarded by your broker or other nominee to see which voting options are available to you. The method by which you submit a proxy will in no way limit your right to vote at the Liberty special meeting if you later decide to attend the meeting in person. However, if your Liberty common shares are held in the name of a broker or other nominee, you must obtain a legal proxy, executed in your favor, from your broker or other nominee, to be able to vote in person at the Liberty special meeting.
- Q:
- How will my proxy be voted?
- A:
- All
Liberty common shares entitled to vote and represented by properly completed proxies received prior to the Liberty special meeting, and not revoked, will be voted
at the Liberty special meeting as instructed on the proxies. If you properly sign, date and return a proxy card, but do not indicate how your Liberty common shares should be voted on a matter, the
Liberty common shares represented by your proxy will be voted as the Liberty board recommends and, therefore, FOR the proposal to approve the company
mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be
paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to
approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional
proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. See "The Liberty Special Meeting—Abstentions and Broker
Non-Votes" on page 54.
- Q:
- Can I revoke my proxy or change my vote after I have delivered my proxy?
- A:
- Yes.
You may revoke your proxy or change your vote at any time before your proxy is voted at the Liberty special meeting. If you are a holder of record, you can do
this in any of the three following ways:
- •
- by sending a written notice to the corporate Secretary of Liberty, in time to be received before the Liberty special meeting, stating that you
would like to revoke your proxy;
- •
- by completing, signing and dating another proxy card and returning it by mail in time to be received before the Liberty special meeting, or by
submitting a later-dated proxy by the Internet or telephone in which case your later-submitted proxy will be recorded and your earlier proxy revoked; or
- •
- by attending the Liberty special meeting and voting in person. Simply attending the Liberty special meeting without voting will not revoke your proxy or change your vote.
If your Liberty common shares are held in an account at a broker or other nominee and you desire to change your vote or vote in person, you should contact your broker or other nominee for instructions on how to do so.
- Q:
- What does it mean if I receive more than one set of voting materials for the Liberty special
meeting?
- A:
- You may receive more than one set of voting materials for the Liberty special meeting, including multiple copies of this proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your Liberty common shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold your Liberty common shares. If you are a holder of record and your Liberty common shares are registered in more than one name, you may receive more than one proxy card. Please complete,
10
sign, date and return each proxy card and voting instruction card that you receive or, if available, please submit your proxy by telephone or over the Internet.
- Q:
- Do I need identification to attend the Liberty special meeting in person?
- A:
- Yes.
Please bring proper identification, together with proof that you are a record owner of Liberty common shares. If your shares are held in street name, please
bring acceptable proof of ownership, such as a letter from your broker or an account statement showing that you beneficially owned Liberty common shares on the record date.
- Q:
- Will a proxy solicitor be used?
- A:
- Yes.
Liberty has engaged Innisfree M&A Incorporated, which we refer to as "Innisfree," to assist in the solicitation of proxies for the Liberty special meeting and
Liberty estimates it will pay Innisfree a fee of approximately $25,000. Liberty has also agreed to reimburse Innisfree for reasonable out-of-pocket expenses and disbursements incurred in connection
with the proxy solicitation. In addition to mailing proxy solicitation material, Liberty's trustees, officers and employees may also solicit proxies in person, by telephone or by any other electronic
means of communication deemed appropriate. No additional compensation will be paid to Liberty's trustees, officers or employees for such services.
- Q:
- Who can answer my questions?
- A:
- If you have any questions about the mergers or how to submit your proxy or need additional copies of this proxy statement/prospectus, the enclosed proxy card or voting instructions, you should contact:
Liberty Property Trust
650 East Swedesford Road, Suite 400
Wayne, PA 19087
Attention: Investor Relations
(610) 648-1700
www.libertyproperty.com
Proxy Solicitor:
Innisfree M&A Incorporated
501 Madison Avenue, 20th Floor
New York, NY 10022
Toll-free: (888) 750-5834
Banks and Brokers: (212) 750-5833
11
The following summary highlights some of the information contained in this proxy statement/prospectus. This summary may not contain all of the information that is important to you. For a more complete description of the merger agreement, the mergers and the other transactions contemplated by the merger agreement, Prologis and Liberty encourage you to read carefully this entire proxy statement/prospectus, including the attached Annexes and the other documents to which we have referred you because this section does not provide all the information that might be important to you with respect to the mergers and the Liberty special meeting. See also the section entitled "Where You Can Find More Information and Incorporation by Reference" beginning on page 170. We have included page references to direct you to a more complete description of the topics presented in this summary.
Prologis, Inc. and Prologis, L.P. (See page 50)
Prologis, Inc.
Pier 1, Bay 1
San Francisco, California 94111
(415) 394-9000
Prologis, Inc. was formed in 1997 and is the global leader in logistics real estate with a focus on key markets in 19 countries on four continents. Prologis owns, manages and develops well-located, high-quality logistics facilities. Prologis' local teams actively manage its portfolio, which encompasses leasing and property management, capital deployment and opportunistic dispositions allowing it to recycle capital to self-fund its development and acquisition activities. The majority of Prologis' properties in the U.S. are wholly owned, while its properties outside the U.S. are generally held in co-investment ventures to mitigate Prologis' exposure to foreign currency movements. Prologis common stock is listed on the NYSE, trading under the symbol "PLD."
Prologis, L.P. was formed in 1997 and is the primary operating subsidiary of Prologis. As of September 30, 2019, Prologis owned an approximate 97.22% common general partnership interest in Prologis OP and 100% of the preferred units in Prologis OP. As the sole general partner of Prologis OP, Prologis has complete responsibility and discretion in the day-to-day management and control of Prologis OP. Prologis only holds a de minimis amount of assets outside of Prologis OP.
Lambda REIT Acquisition LLC
Lambda REIT Acquisition LLC, a wholly owned subsidiary of Prologis which we refer to as "Prologis Merger Sub," is a Maryland limited liability company organized on October 25, 2019 for the purpose of effecting the Topco merger. Prologis Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Prologis Merger Sub are located at Pier 1, Bay 1, San Francisco, California 94111.
Lambda OP Acquisition LLC
Lambda OP Acquisition LLC, a wholly owned subsidiary of Prologis OP, which we refer to as "Prologis OP Merger Sub," is a Delaware limited liability company organized on October 24, 2019 for the purpose of effecting the partnership merger. Prologis OP Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Prologis OP Merger Sub are located at Pier 1, Bay 1, San Francisco, California 94111.
12
Liberty Property Trust and Liberty Property Limited Partnership (See page 51)
Liberty
Property Trust
650 East Swedesford Road, Suite 400
Wayne, PA 19087
(610) 648-1700
Liberty Property Trust, a Maryland real estate investment trust, through its controlling interest in Liberty Property Limited Partnership is a leader in commercial real estate, serving customers in the United States and United Kingdom, through the development, acquisition, ownership and management of superior logistics, warehouse, manufacturing, and R&D facilities in key markets. As of September 30, 2019, Liberty owned interests in 580 properties in operation, comprised of approximately 111.7 million square feet, 25 properties under development, which when completed are expected to comprise approximately 5.2 million square feet, and three properties held for redevelopment or as value-added, comprising approximately 140,000 square feet, as well as approximately 1,700 acres of developable land.
Liberty common shares are listed on the NYSE, trading under the symbol "LPT."
Leaf Holdco Property Trust
Leaf Holdco Property Trust, which we refer to as "New Liberty Holdco," is a Maryland real estate investment trust formed on October 25, 2019 for the purpose of effecting the Topco merger. New Liberty Holdco is a wholly owned subsidiary of Liberty. New Liberty Holdco has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of New Liberty Holdco are located at 650 East Swedesford Road, Suite 400, Wayne, PA 19087.
The Combined Company (See page 52)
References to the Combined Company are to Prologis after the effective time of the Topco merger. The Combined Company will continue to be named "Prologis, Inc." and will be a Maryland corporation. The Combined Company after the completion of the mergers is expected to have a total market capitalization of approximately $63 billion (based on the closing price of Prologis common stock on September 30, 2019 of $85.22 per share). The Combined Company will have a footprint in high-demand metropolitan areas throughout the world.
The business of the Combined Company will be operated through Prologis OP. Prologis will have the full, exclusive and complete responsibility for and discretion in the day-to-day management and control of Prologis OP.
The common stock of the Combined Company will continue to be listed on the NYSE, trading under the symbol "PLD."
The Combined Company's principal executive offices will continue to be located at Pier 1, Bay 1, San Francisco, California 94111, and its telephone number will be (415) 394-9000.
The Merger Agreement (See page 112)
The Prologis parties and the Liberty parties have entered into the merger agreement attached as Annex A to this proxy statement/prospectus, which is incorporated herein by reference. Prologis and Liberty encourage you to carefully read the merger agreement in its entirety because it is the principal document governing the mergers and the other transactions contemplated by the merger agreement.
13
The merger agreement provides that the closing of the mergers will take place at the offices of Wachtell, Lipton, Rosen & Katz (referred to herein as "Wachtell Lipton"), 51 West 52nd Street, New York, New York 10019 on the second business day following the date on which the last of the conditions to the closing of the mergers has been satisfied or waived (other than those conditions that by their terms are required to be satisfied at the closing), unless otherwise agreed by the Prologis parties and the Liberty parties.
The Mergers (See page 59)
Upon the terms and subject to the conditions set forth in the merger agreement, Liberty and Prologis will combine through a multi-step process:
- •
- first, in the Liberty merger, Liberty Merger Sub will merge with and into Liberty, with Liberty continuing as the surviving entity and an
indirect wholly owned subsidiary of New Liberty Holdco;
- •
- thereafter, in the Topco merger, New Liberty Holdco will merge with and into Prologis Merger Sub, with Prologis Merger Sub continuing as the
surviving entity and remaining a wholly owned subsidiary of Prologis;
- •
- thereafter, in the contribution and issuance, Prologis, its applicable subsidiaries and Prologis Merger Sub will cause all of the outstanding
equity interests of Liberty to be contributed to Prologis OP in exchange for the issuance by Prologis OP of Prologis OP common units to certain subsidiaries of Prologis; and
- •
- thereafter, in the partnership merger, Prologis OP Merger Sub will merge with and into Liberty OP, with Liberty OP continuing as the surviving entity and a wholly owned subsidiary of Prologis OP.
Upon the consummation of the Liberty merger described above, the separate existence of Liberty Merger Sub will cease. Upon completion of the Topco merger described above, the separate existence of New Liberty Holdco will cease. Upon completion of the partnership merger described above, the separate existence of Prologis OP Merger Sub will cease.
Merger Consideration (See page 113)
In the Liberty merger, each issued and outstanding Liberty common share immediately prior to the Liberty merger effective time will be converted into one newly issued New Liberty Holdco common share. The Liberty common shares and the New Liberty Holdco common shares will be identical in all respects.
In the Topco merger, each issued and outstanding New Liberty Holdco common share immediately prior to the Topco merger effective time (other than (i) New Liberty Holdco common shares owned by any of the Liberty parties or any wholly owned subsidiary of Liberty and (ii) New Liberty Holdco common shares owned by the Prologis parties or any of their respective wholly owned subsidiaries, which New Liberty Holdco common shares will be canceled) will be converted into the right to receive 0.675 validly issued, fully paid and non-assessable shares of Prologis common stock, without interest but subject to any withholding required under applicable tax law, plus the right, if any, to receive cash in lieu of fractional shares of Prologis common stock in to which such New Liberty Holdco common shares would have been converted pursuant to the merger agreement.
In the partnership merger, (i) each Liberty OP common unit that is issued and outstanding immediately prior to the partnership merger effective time will automatically be converted into 0.675 new validly issued Prologis OP common units (such consideration referred to as the "partnership merger common consideration") and (ii) each Liberty OP preferred unit that is issued and outstanding
14
immediately prior to the partnership merger effective time will automatically be converted into one new validly issued new Prologis preferred unit with substantially the same terms and rights as such Liberty OP preferred units immediately prior to the partnership merger. No fractional new Prologis OP common units will be issued in the partnership merger. Any fractional new Prologis OP common unit that would otherwise be issued to any holder of Liberty OP common units will be rounded up to the nearest whole number.
Recommendation of the Liberty Board of Trustees (See page 53)
The Liberty board has unanimously approved the merger agreement, the company mergers and the other transactions contemplated thereby. The Liberty board made its determination after consultation with its legal and financial advisors and consideration of numerous factors.
The Liberty board unanimously recommends that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
The Liberty Special Meeting (See page 53)
Liberty has agreed to hold a special meeting for the purpose of voting upon the approval of the company mergers and other related matters. The Liberty board has agreed to recommend that the Liberty shareholders approve the company mergers and to use its reasonable best efforts to solicit the approval of the company mergers at the Liberty special meeting. The Liberty special meeting will be held at the offices of Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania 19103 on January 30, 2020, commencing at 11:00 am, local time.
At the Liberty special meeting, the Liberty shareholders will be asked to consider and vote upon the following matters:
- 1.
- a
proposal to approve the company mergers on the terms and conditions set forth in the merger agreement;
- 2.
- a
non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with
the company mergers and the other transactions contemplated by the merger agreement; and
- 3.
- a proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
Approval of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of holders of at least two-thirds of the outstanding Liberty common shares outstanding and entitled to vote on such proposal.
Approval of the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement requires the affirmative vote of a majority of all votes cast on such proposal.
Approval of the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to
15
approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of a majority of all votes cast on such proposal.
At the close of business on December 16, 2019, trustees and executive officers of Liberty were entitled to vote 869,462 Liberty common shares, or approximately 0.6% of the Liberty common shares issued and outstanding on that date. Liberty currently expects that all Liberty trustees and executive officers will vote their Liberty common shares in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement as well as the other proposals to be considered at the Liberty special meeting, although none of them is contractually obligated to do so.
Your vote as a Liberty shareholder is very important. Accordingly, please sign and return the enclosed proxy card whether or not you plan to attend the Liberty special meeting in person.
Opinions of Liberty's Financial Advisors (See pages 71 and 80 and Annexes B and C)
Opinion of Goldman Sachs
Goldman Sachs delivered its opinion to the Liberty board that, as of October 27, 2019 and based upon and subject to the factors and assumptions set forth therein, the exchange ratio pursuant to the merger agreement was fair from a financial point of view to the holders (other than Prologis and its affiliates) of Liberty common shares.
The full text of the written opinion of Goldman Sachs, dated October 27, 2019, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B to this proxy statement/prospectus and is incorporated herein by reference in its entirety. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Liberty board in connection with its consideration of the proposed transaction contemplated by the merger agreement, which we refer to as the "transaction." The Goldman Sachs opinion is not a recommendation as to how any holder of Liberty common shares should vote with respect to the transaction or any other matter.
Opinion of Citi
In connection with the transaction, Citi, as Liberty's financial advisor, rendered an oral opinion to the Liberty board at its October 27, 2019 meeting as to the fairness, from a financial point of view, to the holders of Liberty common shares and as of the date of the opinion, of the exchange ratio to be paid to the holders of Liberty common shares pursuant to the merger agreement, which was confirmed by delivery of a written opinion dated October 27, 2019. The full text of Citi's written opinion, which describes, among other things, the assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken, is attached as Annex C to this proxy statement/prospectus and is incorporated herein by reference in its entirety. The description of Citi's opinion set forth in this proxy statement/prospectus is qualified in its entirety by reference to the full text of Citi's opinion.
Citi's opinion was provided for the information of the Liberty board (in its capacity as such) in connection with its evaluation of the transaction and was limited to the fairness, from a financial point of view, as of the date of the opinion, of the exchange ratio to be paid to the holders of outstanding Liberty common shares pursuant to the merger agreement and did not address any other terms, aspects or implications of the transaction. Citi expressed no view as to, and its opinion did not address, the underlying business decision of Liberty to effect the transaction, the relative merits of the transaction as compared to any alternative business strategies that might exist for Liberty or the effect of any other transaction in which Liberty might engage. Citi's opinion is not intended to be and does not constitute a recommendation to any shareholder as to how such shareholder should vote or act on any matters relating to the proposed transaction or any other matter.
16
Treatment of the Liberty Equity Awards (See page 97)
At the Liberty merger effective time, each issued and outstanding Liberty common share as of immediately before the Liberty merger effective time will be automatically converted into the right to receive one New Liberty Holdco common share. Also as of the Liberty merger effective time, each outstanding equity award relating to Liberty common shares will be automatically converted into an equivalent award relating to an equal number of New Liberty Holdco common shares.
At the Topco merger effective time, each New Liberty Holdco common share issued and outstanding immediately prior to the Topco merger effective time (other than New Liberty Holdco common shares owned by New Liberty Holdco or any of New Liberty Holdco's wholly owned subsidiaries and New Liberty Holdco common shares owned by Prologis or any of Prologis' wholly owned subsidiaries) will be automatically converted into the right to receive 0.675 shares of Prologis common stock, together with cash in lieu of fractional shares, without interest, upon the terms and subject to the conditions set forth in the merger agreement.
At the Topco merger effective time, each outstanding restricted stock award, restricted stock unit award, and stock option relating to New Liberty Holdco common shares will vest and be cancelled in exchange for a payment of the merger consideration (or a cash payment equal to the value of the merger consideration, in the case of an award that is payable in cash by its terms) in respect of each underlying New Liberty Holdco common share (reduced by the aggregate exercise price in the case of each stock option). Performance-based restricted stock unit awards will vest based on the actual level of achievement of the applicable performance goals through the day immediately prior to the Topco merger effective time (or, in the case of awards granted in 2017, if the merger occurs on or after January 1, 2020, based on actual performance during the completed performance period).
Directors and Management of the Combined Company Following the Mergers (See page 113)
There will be no change to the members of the Prologis board or executive officers as a result of the mergers. Hamid R. Moghadam will serve as Chief Executive Officer and Chairman of the Combined Company.
See "The Merger Agreement—Directors and Management of the Combined Company Following the Mergers" for more information.
Interests of Liberty's Trustees and Named Executive Officers in the Mergers (See page 97)
The interests of Liberty's trustees and named executive officers in the mergers that are different from, or in addition to, those of Liberty's shareholders generally are described below. The Liberty board was aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement and the mergers, and in making the recommendations set forth in this proxy statement/prospectus, including its recommendation that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. These interests include:
- •
- accelerated vesting and settlement of all outstanding equity awards, with 2018 and 2019 performance-based awards (and 2017 performance-based
awards, if the closing of the mergers occurs in 2019) vesting based on actual performance as of the consummation of the Topco merger;
- •
- payment of 2019 annual cash incentives in December 2019, assuming maximum performance;
- •
- entitlement to severance benefits under the senior officer severance plan covering Liberty's named executive officers upon a qualifying termination of employment (referred to herein as the "Senior Officer Severance Plan"); and
17
- •
- entitlement to continued indemnification, expense advancement and insurance coverage under indemnification agreements and the merger agreement.
Listing of Prologis Common Stock; Delisting and Deregistration of Liberty Common Shares (See page 111)
It is a condition to each party's obligation to complete the mergers that the shares of Prologis common stock to be issued in connection with the Topco merger be approved for listing on the NYSE, subject to official notice of issuance. Prologis has agreed to use its commercially reasonable efforts to have the application for the listing of the Prologis common stock accepted by the NYSE as promptly as is practicable. After the Topco merger is completed, the Liberty common shares currently listed on the NYSE will cease to be listed on the NYSE and will be deregistered under the Exchange Act.
Shareholder Appraisal Rights in the Mergers (See page 117)
No dissenters' or appraisal rights or other similar rights of objecting Liberty shareholders will be available with respect to the mergers or the other transactions contemplated by the merger agreement.
The parties expect the mergers to be completed in the first quarter of 2020. Neither Liberty nor Prologis can predict the actual date on which the mergers will be completed, or if the mergers will be completed at all, because completion of the mergers is subject to conditions and factors outside of the control of both companies, including the approval of the company mergers by the Liberty shareholders and the satisfaction of certain other closing conditions.
Conditions to Completion of the Mergers (See page 138)
The respective obligations of each of the Liberty parties and the Prologis parties to effect the mergers and to consummate the other transactions contemplated by the merger agreement are subject to the satisfaction or waiver of certain customary conditions, including, among others, the approval of the company mergers by the Liberty shareholders, the absence of any legal prohibitions, listing of Prologis common stock, delivery of certain tax opinions, the accuracy of the other parties' representations and warranties (subject to customary materiality qualifiers), and compliance by the other parties with their respective obligations under the merger agreement (subject to customary materiality qualifiers).
Neither Liberty nor Prologis can be certain when, or if, the conditions to the completion of the mergers will be satisfied or waived, or that the mergers will be effected. See "The Merger Agreement—Conditions to Completion of the Mergers" beginning on page 138 for more information.
Regulatory Approvals Required for the Mergers (See page 104)
The consummation of the mergers and the other transactions contemplated by the merger agreement is not subject to the receipt of any governmental approvals or the expiration of any regulatory waiting period.
No Solicitation of Acquisition Proposals (See page 129)
The merger agreement provides that Liberty will not, and will cause its subsidiaries and its and their respective officers, directors and trustees not to, and will instruct and use its reasonable best efforts to cause its and their respective other affiliates, officers, directors, trustees, employees or
18
consultants or investment bankers, financial advisors, attorneys, accountants or other representative retained by such person or entity not to, directly or indirectly:
- •
- solicit, initiate or knowingly encourage or knowingly facilitate (including by way of furnishing non-public information) any inquiries,
indications of interest or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, an acquisition proposal (as defined in "The Merger Agreement—No
Solicitation of Acquisition Proposals");
- •
- engage in, continue or otherwise participate in any negotiations or discussions concerning, or provide any non-public information or data to
any person or entity relating to, an acquisition proposal or any inquiries, proposals, indications of interest or offers that constitute, or would reasonably be expected to lead to an acquisition
proposal;
- •
- approve or execute or enter into any letter of intent, agreement in principle, merger agreement, asset purchase or share exchange agreement,
option agreement or other similar agreement relating to any acquisition proposal; or
- •
- propose or agree to do any of the foregoing.
Notwithstanding these restrictions, under certain circumstances, and to the extent that the Liberty board concludes in good faith, after receiving the advice of its outside legal counsel and its financial advisors, that an acquisition proposal either constitutes or would reasonably be expected to lead to a superior proposal (as defined in "The Merger Agreement—No Solicitation of Acquisition Proposals") and that failure to do so would be inconsistent with their duties as trustees under applicable law, Liberty may, prior to the Liberty special meeting, provide non-public information or data, and engage in discussions and negotiations, with respect to certain unsolicited bona fide written acquisition proposals that did not result from a breach of the merger agreement, subject to certain specified requirements.
See "The Merger Agreement—Covenants and Agreements—No Solicitation of Acquisition Proposals" on page 129 for more information.
No Change of Board Recommendation; No Entry into Alternative Transactions (See page 129)
Prior to obtaining the Liberty shareholder approval, the Liberty board may make a change in company recommendation (as defined in "The Merger Agreement—No Solicitation of Acquisition Proposals" beginning on page 129), if and only if:
- •
- (i) Liberty has received an unsolicited bona fide written acquisition proposal that did not
result from a breach of Liberty's non-solicitation covenant and covenants restricting the sharing of information in the merger agreement (and such proposal is not withdrawn) and the Liberty board
concludes in good faith (after consultation with its outside legal counsel and its financial advisors) that such acquisition proposal constitutes a superior proposal or (ii) an intervening
event (as defined in "The Merger Agreement—No Solicitation of Acquisition Proposals") has occurred, and in the case of either
clause (i) or clause (ii), the Liberty board concludes in good faith (after consultation with its outside counsel) that the failure to take such action would be inconsistent with their
duties as trustees under applicable law;
- •
- Liberty gives Prologis at least four business days' prior written notice of its intention to take such action, which notice (i) in the case of an acquisition proposal, specifies in reasonable detail the reasons for Liberty taking such action, including the material terms and conditions of any such superior proposal that is the basis of the proposed action and (ii) in the case of an intervening event, advising Prologis that Liberty intends to take such action and specifying in reasonable detail the reasons therefor; and
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- •
- during such notice period, the Liberty board considers, and, if requested by Prologis, engages, and causes its representatives to engage, in good faith discussions with Prologis regarding any adjustment or modification of the terms of the merger agreement proposed by Prologis and the Liberty board, following such notice period, again concludes in good faith (after consultation with its outside legal counsel and its financial advisors and taking into account any adjustment or modification of the terms of the merger agreement proposed by Prologis) that (i) in the case of both an acquisition proposal and an intervening event, the failure to do so would be inconsistent with their duties as trustees under applicable law and (ii) in the case of an acquisition proposal, such acquisition proposal continues to constitute a superior proposal.
Unless the merger agreement is terminated with respect to a superior proposal, notwithstanding a change in company recommendation, Liberty must cause the approval of the company mergers to be submitted to a vote of its shareholders. In addition, Liberty may not submit to the vote of its shareholders any acquisition proposal other than the company mergers prior to the termination of the merger agreement.
See "The Merger Agreement—Covenants and Agreements—No Solicitation of Acquisition Proposals" on page 129 for more information.
Termination of the Merger Agreement (See page 141)
The merger agreement may be terminated and the mergers may be abandoned at any time prior to the Topco merger effective time, whether before or after the receipt of the Liberty shareholder approval (unless otherwise specified below), under the following circumstances:
- •
- by mutual written consent of Liberty and Prologis;
- •
- by either Liberty or Prologis if:
- •
- upon the completion of voting at the Liberty special meeting, the Liberty shareholder approval is not obtained (except that
Liberty will not have this right to terminate if the failure to obtain the Liberty shareholder approval was primarily caused by a material breach by any of the Liberty parties of their respective
obligations with respect to the preparation of the Form S-4 and the proxy statement/prospectus, the Liberty special meeting, non-solicitation of acquisition proposals or making any change in
company recommendation);
- •
- a governmental authority of competent jurisdiction has issued an order, decree, judgment, injunction or taken any other action,
which permanently restrains, enjoins or otherwise prohibits or makes illegal the consummation of the mergers, and such order, decree, judgment, injunction or other action has become final and
non-appealable; or
- •
- the mergers have not been consummated on or before 5:00 p.m. (New York time) on June 1, 2020 (except that this
termination right will not be available to a party whose failure to comply with any provision of the merger agreement has been the primary cause of, or resulted in, the failure of the mergers to occur
on or before such date).
- •
- by Liberty if:
- •
- at any time prior to the receipt of the Liberty shareholder approval, in order to enter into an acquisition agreement with respect
to a superior proposal in compliance with the terms of the merger agreement (except that the merger agreement may not be so terminated unless Liberty concurrently pays the termination fee described
below); or
- •
- any of the Prologis parties has breached or failed to perform any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach or
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- •
- by Prologis if:
- •
- prior to obtaining the Liberty shareholder approval, a change in company recommendation has occurred (except that Prologis will no
longer have this right to terminate if and when the Liberty shareholder approval is obtained);
- •
- there is a willful breach of the non-solicitation/change of recommendation covenants; or
- •
- any of the Liberty parties has breached or failed to perform any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the closing date, the related closing conditions not being satisfied on the closing date, and such breach or failure to perform is not cured or curable by the earlier of 30 days after notice of such breach or failure to perform is given or two business days prior to June 1, 2020 (except that Prologis will not have this right to terminate if Prologis or Prologis OP is in breach of any of its own representations, warranties, covenants or agreements set forth in the merger agreement such that the related closing conditions would not be satisfied).
failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the closing date, the related closing conditions not being satisfied on the closing date, unless such breach or failure to perform is not cured or curable by the earlier of 30 days after notice of such breach or failure to perform is given or two business days prior to June 1, 2020 (except that Liberty will not have this right to terminate if Liberty or Liberty OP is in breach of any of its own representations, warranties, covenants or agreements set forth in the merger agreement such that the related closing conditions would not be satisfied).
See "The Merger Agreement—Termination of the Merger Agreement" beginning on page 141 for more information.
Termination Fee and Expenses (See page 142)
Liberty has agreed to pay to Prologis a termination fee of $325 million (except as described below) if the merger agreement is terminated in the following circumstances:
- •
- Liberty terminates the merger agreement, at any time prior to the receipt of the Liberty shareholder approval, to enter into an acquisition
agreement with respect to a superior proposal; or
- •
- Prologis terminates the merger agreement following a change in company recommendation.
Further, Liberty has agreed to pay to Prologis a termination fee of $325 million in the following instances (provided that for purposes of the analysis below, the references to "20%" in the definition of "acquisition proposal" in the merger agreement will instead be deemed to be "50%"):
- •
- In the event that:
- •
- Liberty receives or has received an acquisition proposal with respect to Liberty or any Liberty subsidiary that has been publicly
announced or otherwise communicated to the Liberty board prior to the time of the Liberty special meeting or, in certain circumstances, the date of termination of the merger agreement;
- •
- thereafter (i) Liberty or Prologis terminates the merger agreement as a result of the failure to obtain the Liberty shareholder approval, (ii) Liberty or Prologis terminates the merger agreement as a result of the failure to complete the mergers on or before June 1, 2020 or (iii) Prologis terminates the merger agreement as a result of any of the Liberty parties'
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- •
- before the date that is twelve months after the date of termination of the merger agreement, any transaction or series of related transactions included within the definition of an acquisition proposal is consummated or Liberty or a Liberty subsidiary enters into an acquisition agreement with respect to such a transaction or series of related transactions.
breach or failure to perform any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach or failure to perform, either individually or in the aggregate, would result in, if occurring or continuing on the closing date, the related closing conditions not being satisfied on the closing date, and such breach or failure to perform is not cured or curable by the earlier of 30 days after notice of such breach or failure to perform is given or two business days prior to June 1, 2020; and
However, the termination fee will only be $150 million if each of the following occurs:
- •
- the merger agreement is terminated:
- •
- by Liberty prior to the receipt of the Liberty shareholder approval in order to enter into an acquisition agreement with respect
to a superior proposal from a qualified bidder in compliance with the merger agreement; or
- •
- by Prologis in response to a change in company recommendation with respect to a superior proposal from a qualified bidder; and
- •
- a bidder will be a qualified bidder if such bidder made an unsolicited bona fide written
acquisition proposal (that did not result from a breach of the non-solicitation covenants in the merger agreement) that remains pending at 11:59 p.m. (New York time) on November 26,
2019, and that, on or prior to such date, the Liberty board concluded in good faith (after consultation with its outside legal counsel and its financial advisors) either constituted or would
reasonably be expected to lead to a superior proposal, and subject to certain other requirements set forth in the merger agreement; and
- •
- the termination of the merger agreement occurred prior to the later of the following:
- •
- 11:59 p.m. (New York time) on December 11, 2019; and
- •
- 11:59 p.m. (New York time) on the first business day after the end of any notice period (including any extensions thereof) with respect to a superior proposal by a qualified bidder for which notice period commenced on or prior to December 11, 2019.
Liberty did not receive a bona fide written acquisition proposal from any bidders, including any qualified bidders, on or prior to 11:59 p.m. (New York time) on November 26, 2019.
Liberty has agreed to pay to Prologis all documented reasonable out-of-pocket expenses (including fees and expenses of counsel and other advisors) paid or payable by any of the Prologis parties in connection with the merger agreement and the other transactions contemplated by the merger agreement up to a maximum of $15 million if the merger agreement is terminated by either Liberty or Prologis because the Liberty shareholders fail to approve the company mergers at a duly convened meeting. Any such amount paid by Liberty would be credited against the payment of any termination fee that Liberty subsequently becomes obligated to pay Prologis. See "The Merger Agreement—Termination of the Merger Agreement" beginning on page 141 for more information.
The parties to the merger agreement are entitled to an injunction or injunctions to prevent breaches of the merger agreement by any other party and to specifically enforce the terms and provisions of the merger agreement.
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Litigation Relating to the Mergers (See page 111)
On November 27, 2019, Liberty and the Liberty board were sued in a lawsuit, captioned Shiva Stein v. Liberty Property Trust Inc. et al., Case No. 1:19-cv-03428 (the "Stein Action"), filed in the United States District Court for the District of Maryland, in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Stein Action alleges that Liberty and the Liberty board violated federal securities laws by omitting material information from the Form S-4, rendering the Form S-4 materially deficient. On December 5, 2019, Liberty, Liberty OP, the Liberty board, Prologis, Prologis OP, Prologis Merger Sub, Prologis OP Merger Sub and New Liberty Holdco were sued in a putative class action lawsuit, captioned John Thompson v. Liberty Property Trust, et al., Case No. 1:19-cv-02230 (the "Thompson Action"), filed in the United States District Court for the District of Delaware, and also in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Thompson Action alleges that Liberty, Liberty OP, the Liberty board, Prologis, Prologis OP, Prologis Merger Sub, Prologis OP Merger Sub and New Liberty Holdco violated federal securities laws by omitting from the Form S-4, and/or misrepresenting in the Form S-4, material information, rendering the Form S-4 materially deficient. On December 16, 2019, Liberty and the Liberty board were sued in a lawsuit, captioned Berlinger v. Liberty Property Trust et al., Case No. 1:19-cv-03562 (the "Berlinger Action"), filed in the United States District Court for the District of Maryland, in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Berlinger Action alleges that Liberty and the Liberty board violated federal securities laws by omitting material information in the Form S-4, rendering the Form S-4 materially deficient. On December 16, 2019, Prologis, Liberty and the Liberty board were sued in a putative class action lawsuit, captioned Robert Garfield v. William P. Hankowsky et al., No. 2019-cv-9529-cv (the "Garfield Action"), filed in the Court of Common Pleas of Dauphin County, Pennsylvania. The complaint in the Garfield Action alleges that Prologis and Liberty omitted material information from the Form S-4, rendering the Form S-4 materially deficient, that the Liberty board violated its fiduciary duties to Liberty shareholders in connection with the proposed merger of Liberty and Prologis, and that Prologis aided and abetted those breaches of fiduciary duty. Plaintiffs in the Stein, Thompson, Berlinger and Garfield Actions seek, among other things, (i) to enjoin the transaction, and (ii) attorneys' fees and costs in connection with these lawsuits. If additional similar complaints are filed, absent new or different allegations that are material, neither Liberty nor Prologis will necessarily announce such additional filings.
Although the ultimate outcome of litigation cannot be predicted with certainty, Liberty and Prologis believe that these lawsuits are without merit and intend to defend against these actions vigorously.
Material United States Federal Income Tax Consequences of the Company Mergers (See page 104)
Prologis and Liberty intend that each of the Liberty merger and the Topco merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. It is a condition to the completion of the mergers that Liberty receives a written opinion from its counsel to the effect that the Liberty merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, and that Prologis and Liberty receive written opinions from their respective counsel to the effect that the Topco merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. Assuming that each of the Liberty merger and the Topco merger qualifies as a reorganization, United States holders (as defined in the discussion under the heading "The Mergers—Material United States Federal Income Tax Consequences of the Company Mergers") of Liberty common shares generally will not recognize gain or loss for United States federal income tax purposes upon the receipt of New Liberty Holdco common shares in exchange for Liberty common shares in connection with the Liberty merger and United States holders of New Liberty Holdco common shares are not expected to recognize gain
23
or loss as a result of the Topco merger (except with respect to the receipt of cash in lieu of fractional shares of Prologis common stock, if any).
For further discussion of material United States federal income tax consequences of the company mergers, see "The Mergers—Material United States Federal Income Tax Consequences of the Company Mergers" beginning on page 104.
Holders of Liberty common shares should consult their tax advisors to determine the tax consequences to them (including the application and effect of any state, local or non-United States income and other tax laws) of the company mergers and the ownership and disposition of shares of the Combined Company common stock.
Accounting Treatment of the Mergers (See page 109)
Prologis prepares its financial statements in accordance with United States generally accepted accounting principles, which we refer to as "GAAP." The mergers will be accounted for by using the business combination accounting rules. See "The Merger—Accounting Treatment" beginning on page 109 for more information.
Comparison of Rights of Prologis Stockholders and Liberty Shareholders (See page 153)
The rights of Liberty shareholders are currently governed by and subject to the provisions of Title 8 of the Corporations and Associations Article of the Annotated Code of Maryland, as amended, or "Maryland REIT Law," and the declaration of trust and bylaws of Liberty. Upon consummation of the company mergers, the rights of the former Liberty shareholders who receive shares of Prologis common stock in the Topco merger will be governed by the Maryland General Corporation Law, or the "MGCL," and the Prologis charter and bylaws, rather than the declaration of trust and bylaws of Liberty. See "Comparison of Rights of the Prologis Stockholders and the Liberty Shareholders" beginning on page 153 for more information.
Selected Historical Financial Information of Prologis
The following selected historical financial information for each of the years during the five-year period ended December 31, 2018 and the selected balance sheet data as of December 31 for each of the years in the five-year period ended December 31, 2018 have been derived from Prologis' audited consolidated financial statements. The selected historical financial information for the nine months ended September 30, 2019 and 2018 and the selected balance sheet data as of September 30, 2019 have been derived from Prologis' unaudited interim consolidated financial statements.
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You should read the selected historical financial information presented below together with the consolidated financial statements and the related notes thereto and management's discussion and analysis of financial condition and results of operations of Prologis included in Prologis' Annual Report on Form 10-K for the year ended December 31, 2018 and its Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, which are incorporated herein by reference. See also "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
| |
Nine Months Ended September 30, |
For the Years Ended December 31, | ||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
2019 | 2018 | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
| |
(in millions, except per share amounts) |
|||||||||||||||||||||
Operating Data: |
||||||||||||||||||||||
Total revenues |
$ | 2,504 | $ | 1,997 | $ | 2,804 | $ | 2,618 | $ | 2,533 | $ | 2,197 | $ | 1,761 | ||||||||
Total expenses |
$ | 1,750 | $ | 1,391 | $ | 1,957 | $ | 1,847 | $ | 1,865 | $ | 1,817 | $ | 1,441 | ||||||||
Gains on real estate transactions, net(1) |
$ | 536 | $ | 483 | $ | 841 | $ | 1,183 | $ | 758 | $ | 759 | $ | 726 | ||||||||
Operating income(1) |
$ | 1,290 | $ | 1,089 | $ | 1,688 | $ | 1,954 | $ | 1,426 | $ | 1,139 | $ | 1,046 | ||||||||
Interest expense |
$ | 180 | $ | 167 | $ | 229 | $ | 274 | $ | 303 | $ | 301 | $ | 309 | ||||||||
Consolidated net earnings |
$ | 1,276 | $ | 1,132 | $ | 1,823 | $ | 1,761 | $ | 1,293 | $ | 926 | $ | 739 | ||||||||
Net earnings attributable to common stockholders |
$ | 1,181 | $ | 1,047 | $ | 1,643 | $ | 1,642 | $ | 1,203 | $ | 863 | $ | 622 | ||||||||
Net earnings per share attributable to common stockholders—Basic |
$ | 1.87 | $ | 1.92 | $ | 2.90 | $ | 3.10 | $ | 2.29 | $ | 1.66 | $ | 1.25 | ||||||||
Net earnings per share attributable to common stockholders—Diluted |
$ | 1.86 | $ | 1.90 | $ | 2.87 | $ | 3.06 | $ | 2.27 | $ | 1.64 | $ | 1.24 | ||||||||
Weighted average common shares outstanding: |
||||||||||||||||||||||
Basic |
630 | 547 | 567 | 530 | 526 | 521 | 500 | |||||||||||||||
Diluted |
655 | 569 | 590 | 552 | 547 | 534 | 506 | |||||||||||||||
Core FFO(2): |
$ | 1,613 | $ | 1,262 | $ | 1,788 | $ | 1,551 | $ | 1,400 | $ | 1,181 | $ | 953 | ||||||||
Common Share Dividends: |
||||||||||||||||||||||
Common share dividends paid per share |
$ | 1.59 | $ | 1.44 | $ | 1.92 | $ | 1.76 | $ | 1.68 | $ | 1.52 | $ | 1.32 | ||||||||
- (1)
- In
the fourth quarter of 2018, the SEC guidance for presentation of gains was updated with the adoption of the SEC's Disclosure Simplification. For all quarterly
reports in 2019, Prologis has presented gains on real estate transactions as part of operating income in line with this change and the prevailing guidance in GAAP. All operating income amounts in the
table above have been updated to conform to this presentation.
- (2)
- Core FFO is a non-GAAP financial measure. See the "—Funds From Operations Attributable to Common Stockholders/Unitholders" section below for Prologis' definition of Core FFO and a complete reconciliation to net earnings.
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| |
|
As of December 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
As of September 30, 2019 |
||||||||||||||||||
| |
2018 | 2017 | 2016 | 2015 | 2014 | ||||||||||||||
| |
(in millions) |
||||||||||||||||||
Financial Position: |
|||||||||||||||||||
Investments in real estate properties |
$ | 34,912 | $ | 34,587 | $ | 25,839 | $ | 27,119 | $ | 27,521 | $ | 22,190 | |||||||
Net investments in real estate properties |
$ | 29,624 | $ | 29,930 | $ | 21,779 | $ | 23,361 | $ | 24,247 | $ | 19,399 | |||||||
Investments in and advances to unconsolidated entities |
$ | 5,887 | $ | 5,745 | $ | 5,496 | $ | 4,230 | $ | 4,756 | $ | 4,825 | |||||||
Total assets |
$ | 39,448 | $ | 38,418 | $ | 29,481 | $ | 30,250 | $ | 31,395 | $ | 25,775 | |||||||
Total debt |
$ | 11,459 | $ | 11,090 | $ | 9,413 | $ | 10,608 | $ | 11,627 | $ | 9,337 | |||||||
Total liabilities |
$ | 13,513 | $ | 12,617 | $ | 10,775 | $ | 11,792 | $ | 12,974 | $ | 10,591 | |||||||
Noncontrolling interests |
$ | 3,418 | $ | 3,503 | $ | 3,075 | $ | 3,467 | $ | 3,753 | $ | 1,208 | |||||||
Prologis, Inc. shareholders' equity |
$ | 22,517 | $ | 22,298 | $ | 15,631 | $ | 14,991 | $ | 14,668 | $ | 13,976 | |||||||
Number of common shares outstanding |
632 | 630 | 532 | 529 | 525 | 509 | |||||||||||||
Funds From Operations Attributable to Common Stockholders/Unitholders
Funds From Operations, or "FFO," is a non-GAAP financial measure that is commonly used in the real estate industry. The most directly comparable GAAP measure to FFO is net earnings.
The National Association of Real Estate Investment Trusts, or "NAREIT," defines FFO as earnings computed under GAAP to exclude historical cost depreciation and gains and losses from the sales, along with impairment charges, of previously depreciated properties. Prologis also excludes the gains on revaluation of equity investments upon acquisition of a controlling interest and the gain recognized from a partial sale of its investment, as these are similar to gains from the sales of previously depreciated properties. Prologis excludes similar adjustments from its unconsolidated entities and the third parties' share of its consolidated co-investment ventures.
Prologis' FFO Measures. Prologis' FFO measures begin with NAREIT's definition, and Prologis makes certain adjustments to reflect its business and the way that management plans and executes its business strategy. While not infrequent or unusual, the additional items Prologis adjusts for in calculating FFO, as modified by Prologis and Core FFO (both as defined below), are subject to significant fluctuations from period to period. Although these items may have a material impact on Prologis' operations and are reflected in its financial statements, the removal of the effects of these items allows Prologis to better understand the core operating performance of its properties over the long-term. These items have both positive and negative short-term effects on Prologis' results of operations in inconsistent and unpredictable directions that are not relevant to its long-term outlook.
Prologis calculates its FFO measures, as defined below, based on its proportionate ownership share of both its unconsolidated and consolidated ventures. Prologis reflects its share of its FFO measures for unconsolidated ventures by applying its average ownership percentage for the period to the applicable reconciling items on an entity by entity basis. Prologis reflects its share for consolidated ventures in which it does not own 100% of the equity by adjusting its FFO measures to remove the noncontrolling interests share of the applicable reconciling items based on its average ownership percentage for the applicable periods.
These FFO measures are used by Prologis' management as supplemental financial measures of operating performance and it believes that it is important that stockholders, potential investors and financial analysts understand the measures management uses. Prologis does not use its FFO measures as, nor should they be considered to be, alternatives to net earnings computed under GAAP, as
26
indicators of Prologis' operating performance, as alternatives to cash from operating activities computed under GAAP or as indicators of Prologis' ability to fund its cash needs.
Prologis analyzes its operating performance primarily by the rental revenues of its real estate and the revenues from its strategic capital business, net of operating, administrative and financing expenses. This income stream is not directly impacted by fluctuations in the market value of our investments in real estate or debt securities.
FFO, as modified by Prologis attributable to common stockholders and unitholders, or FFO, as modified by Prologis. To arrive at FFO, as modified by Prologis, Prologis adjusts the NAREIT defined FFO measure to exclude the impact of foreign currency related items and deferred tax, specifically:
- •
- deferred income tax benefits and deferred income tax expenses recognized by its subsidiaries;
- •
- current income tax expense related to acquired tax liabilities that were recorded as deferred tax liabilities in an acquisition, to the extent
the expense is offset with a deferred income tax benefit in earnings that is excluded from its defined FFO measure;
- •
- unhedged foreign currency exchange gains and losses resulting from debt transactions between Prologis and its foreign consolidated subsidiaries
and its foreign unconsolidated entities;
- •
- foreign currency exchange gains and losses from the remeasurement (based on current foreign currency exchange rates) of certain third-party
debt of Prologis' foreign consolidated and unconsolidated entities; and
- •
- mark-to-market adjustments associated with derivative financial instruments.
Prologis uses FFO, as modified by Prologis, so that management, analysts and investors are able to evaluate Prologis' performance against other REITs that do not have similar operations or operations in jurisdictions outside the United States.
Core FFO attributable to common stockholders and unitholders, or "Core FFO." In addition to FFO, as modified by Prologis, Prologis also uses Core FFO. To arrive at Core FFO, Prologis adjusts FFO, as modified by Prologis, to exclude the following recurring and nonrecurring items that Prologis recognized directly in FFO, as modified by Prologis:
- •
- gains or losses from the disposition of land and development properties that were developed with the intent to contribute or sell;
- •
- income tax expense related to the sale of investments in real estate and third-party acquisition costs related to the acquisition of real
estate;
- •
- impairment charges recognized related to Prologis' investments in real estate generally as a result of its change in intent to contribute or
sell these properties;
- •
- gains or losses from the early extinguishment of debt and redemption and repurchase of preferred stock; and
- •
- expenses related to natural disasters.
Prologis uses Core FFO, including by segment and region, to: (i) assess its operating performance as compared to other real estate companies; (ii) evaluate its performance and the performance of its properties in comparison with expected results and results of previous periods; (iii) evaluate the performance of its management; (iv) budget and forecast future results to assist in the allocation of resources; (v) provide guidance to the financial markets to understand its expected operating performance; and (vi) evaluate how a specific potential investment will impact its future results.
27
Limitations on the use of Prologis' FFO measures. While Prologis believes its modified FFO measures are important supplemental measures, neither NAREIT's nor Prologis' measures of FFO should be used alone because they exclude significant economic components of net earnings computed under GAAP and are, therefore, limited as an analytical tool. Accordingly, these are only a few of the many measures Prologis uses when analyzing its business. Some of the limitations are:
- •
- The current income tax expenses and acquisition costs that are excluded from Prologis' modified FFO measures represent the taxes and
transaction costs that are payable.
- •
- Depreciation and amortization of real estate assets are economic costs that are excluded from FFO. FFO is limited, as it does not reflect the
cash requirements that may be necessary for future replacements of the real estate assets. Furthermore, the amortization of capital expenditures and leasing costs necessary to maintain the operating
performance of logistics facilities are not reflected in FFO.
- •
- Gains or losses from non-development property dispositions and impairment charges related to expected dispositions represent changes in value
of the properties. By excluding these gains and losses, FFO does not capture realized changes in the value of disposed properties arising from changes in market conditions.
- •
- The deferred income tax benefits and expenses that are excluded from Prologis' modified FFO measures result from the creation of a deferred
income tax asset or liability that may have to be settled at some future point. Prologis' modified FFO measures do not currently reflect any income or expense that may result from such settlement.
- •
- The foreign currency exchange gains and losses that are excluded from Prologis' modified FFO measures are generally recognized based on
movements in foreign currency exchange rates through a specific point in time. The ultimate settlement of Prologis' foreign currency-denominated net assets is indefinite as to timing and amount.
Prologis' FFO measures are limited in that they do not reflect the current period changes in these net assets that result from periodic foreign currency exchange rate movements.
- •
- The gains and losses on extinguishment of debt or preferred stock that Prologis excludes from its Core FFO, may provide a benefit or cost to
Prologis as it may be settling its debt at less or more than its future obligation.
- •
- The natural disaster expenses that Prologis excludes from Core FFO are costs that Prologis has incurred.
Prologis compensates for these limitations by using its FFO measures only in conjunction with net earnings computed under GAAP when making its decisions. This information should be read with Prologis' complete consolidated financial statements prepared under GAAP. To assist investors in compensating for these limitations, Prologis reconciles its modified FFO measures to its net earnings computed under GAAP below.
28
The following table is a reconciliation of Prologis' FFO measures to net earnings computed under GAAP for the nine months ended September 30, 2019 and 2018 and for each of the years during the five-year period ended December 31, 2018:
| |
Nine Months Ended September 30, |
For the Years Ended December 31, | ||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
2019 | 2018 | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
| |
(in millions, except per share amounts) |
|||||||||||||||||||||
FFO: |
||||||||||||||||||||||
Reconciliation of net earnings attributable to common stockholders/unitholders to FFO measures: |
||||||||||||||||||||||
Net earnings attributable to common stockholders |
$ | 1,181 | $ | 1,047 | $ | 1,643 | $ | 1,642 | $ | 1,203 | $ | 863 | $ | 622 | ||||||||
Add (deduct) NAREIT defined adjustments: |
||||||||||||||||||||||
Real estate related depreciation and amortization |
823 | 635 | 913 | 848 | 900 | 855 | 618 | |||||||||||||||
Gains on real estate transactions, net (excluding development properties and land) |
(233 | ) | (154 | ) | (371 | ) | (855 | ) | (423 | ) | (501 | ) | (553 | ) | ||||||||
Reconciling items related to noncontrolling interests |
(25 | ) | (33 | ) | 23 | (39 | ) | (105 | ) | (78 | ) | 48 | ||||||||||
Our share of reconciling items included in earnings from unconsolidated entities |
182 | 157 | 142 | 147 | 162 | 185 | 186 | |||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
NAREIT defined FFO |
$ | 1,928 | $ | 1,652 | $ | 2,350 | $ | 1,743 | $ | 1,737 | $ | 1,324 | $ | 921 | ||||||||
Add (deduct) our modified adjustments: |
||||||||||||||||||||||
Unrealized foreign currency and derivative losses (gains) and related amortization, net |
$ | (53 | ) | $ | (73 | ) | $ | (120 | ) | $ | 69 | $ | (8 | ) | $ | 1 | $ | 19 | ||||
Deferred income tax expense (benefit), net |
10 | (1 | ) | 1 | (5 | ) | (5 | ) | (5 | ) | (87 | ) | ||||||||||
Current income tax expense related to acquired tax liabilities |
— | 1 | 1 | 2 | — | 4 | 30 | |||||||||||||||
Reconciling items related to noncontrolling interests |
— | — | — | — | 1 | (1 | ) | — | ||||||||||||||
Our share of reconciling items included in earnings from unconsolidated entities |
(2 | ) | 3 | — | (14 | ) | (23 | ) | (14 | ) | 5 | |||||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
FFO, as modified by Prologis |
$ | 1,883 | $ | 1,582 | $ | 2,232 | $ | 1,795 | $ | 1,702 | $ | 1,309 | $ | 888 | ||||||||
Adjustments to arrive at Core FFO: |
||||||||||||||||||||||
Gains on dispositions of development properties and land, net |
$ | (303 | ) | $ | (329 | ) | $ | (470 | ) | $ | (328 | ) | $ | (334 | ) | $ | (258 | ) | $ | (173 | ) | |
Current income tax expense on dispositions |
13 | 14 | 17 | 19 | 24 | — | 15 | |||||||||||||||
Acquisition expenses |
— | — | — | — | 4 | 47 | 4 | |||||||||||||||
Losses (gains) on early extinguishment of debt and repurchase of preferred stock, net |
16 | 3 | 3 | 72 | (2 | ) | 86 | 172 | ||||||||||||||
Reconciling items related to noncontrolling interests |
— | 5 | 6 | — | 4 | (11 | ) | — | ||||||||||||||
Our share of reconciling items included in earnings from unconsolidated entities |
4 | (13 | ) | — | (7 | ) | 2 | 8 | 47 | |||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
Core FFO |
$ | 1,613 | $ | 1,262 | $ | 1,788 | $ | 1,551 | $ | 1,400 | $ | 1,181 | $ | 953 | ||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | |
29
Selected Historical Financial Information of Liberty
The following selected historical financial information for each of the years during the five-year period ended December 31, 2018 and the selected balance sheet data as of December 31 for each of the years in the five-year period ended December 31, 2018 have been derived from Liberty's audited consolidated financial statements. The selected historical financial information for the nine months ended September 30, 2019 and 2018 and the selected balance sheet data as of September 30, 2019 have been derived from Liberty's unaudited interim consolidated financial statements.
You should read the selected historical financial information presented below together with the consolidated financial statements and the related notes thereto and management's discussion and analysis of financial condition and results of operations of Liberty included in Liberty's Current Report on Form 8-K filed with the SEC on November 25, 2019 and its Quarterly Report on Form 10-Q for the quarter ended September 30, 2019, which are incorporated herein by reference. See also "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
| |
Nine Months Ended September 30, |
Year Ended December 31, | ||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Operating Data |
2019 | 2018 | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
| (In millions, except per share data) |
||||||||||||||||||||||
Total revenue |
$ | 482 | $ | 499 | $ | 670 | $ | 636 | $ | 652 | $ | 700 | $ | 689 | ||||||||
Income from continuing operations |
$ | 155 | $ | 94 | $ | 149 | $ | 236 | $ | 329 | $ | 210 | $ | 138 | ||||||||
Income from discontinued operations |
$ | 106 | $ | 225 | $ | 344 | $ | 54 | $ | 37 | $ | 36 | $ | 86 | ||||||||
Net income |
$ | 261 | $ | 319 | $ | 493 | $ | 290 | $ | 366 | $ | 246 | $ | 224 | ||||||||
Net income available to common shareholders |
$ | 254 | $ | 310 | $ | 480 | $ | 282 | $ | 357 | $ | 239 | $ | 218 | ||||||||
Basic income per common share: |
||||||||||||||||||||||
Income from continuing operations |
$ | 1.02 | $ | 0.62 | $ | 0.98 | $ | 1.56 | $ | 2.20 | $ | 1.38 | $ | 0.91 | ||||||||
Income from discontinued operations |
$ | 0.69 | $ | 1.48 | $ | 2.28 | $ | 0.36 | $ | 0.24 | $ | 0.24 | $ | 0.57 | ||||||||
Income available to common shareholders |
$ | 1.71 | $ | 2.10 | $ | 3.26 | $ | 1.92 | $ | 2.44 | $ | 1.62 | $ | 1.48 | ||||||||
Diluted income per common share: |
||||||||||||||||||||||
Income from continuing operations |
$ | 1.01 | $ | 0.61 | $ | 0.97 | $ | 1.55 | $ | 2.19 | $ | 1.37 | $ | 0.91 | ||||||||
Income from discontinued operations |
$ | 0.69 | $ | 1.48 | $ | 2.27 | $ | 0.36 | $ | 0.24 | $ | 0.24 | $ | 0.57 | ||||||||
Income available to common shareholders |
$ | 1.70 | $ | 2.09 | $ | 3.24 | $ | 1.91 | $ | 2.43 | $ | 1.61 | $ | 1.48 | ||||||||
Dividends paid per common share |
$ | 1.22 | $ | 1.20 | $ | 1.60 | $ | 1.68 | $ | 1.90 | $ | 1.90 | $ | 1.90 | ||||||||
Trust—weighted average number of shares outstanding—basic(1) |
149 | 147 | 147 | 147 | 146 | 148 | 147 | |||||||||||||||
Trust—weighted average number of shares outstanding—diluted(2) |
149 | 148 | 148 | 148 | 147 | 149 | 148 | |||||||||||||||
NAREIT FFO available to common shareholders—diluted(3) |
$ | 305 | $ | 221 | $ | 333 | $ | 391 | $ | 357 | $ | 441 | $ | 376 | ||||||||
| |
|
December 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
September 30, 2019 |
||||||||||||||||||
| Balance Sheet Data |
2018 | 2017 | 2016 | 2015 | 2014 | ||||||||||||||
| (In millions) |
|||||||||||||||||||
Net real estate |
$ | 5,766 | $ | 5,451 | $ | 4,701 | $ | 4,365 | $ | 5,005 | $ | 5,081 | |||||||
Total assets |
$ | 7,339 | $ | 6,934 | $ | 6,440 | $ | 5,993 | $ | 6,558 | $ | 6,612 | |||||||
Total indebtedness |
$ | 3,031 | $ | 3,093 | $ | 2,910 | $ | 2,557 | $ | 3,147 | $ | 3,150 | |||||||
Liberty Property Trust shareholders' equity |
$ | 3,843 | $ | 3,330 | $ | 3,087 | $ | 3,003 | $ | 2,973 | $ | 3,047 | |||||||
- (1)
- Basic
weighted average number of shares includes vested Liberty common shares outstanding during the year.
- (2)
- Diluted
weighted average number of shares includes the vested and unvested Liberty common shares outstanding during the year as well as the dilutive effect of
outstanding options.
- (3)
- NAREIT FFO is a non-GAAP financial measure. See "Funds from Operations of Liberty" below for Liberty's definition of NAREIT FFO and a complete reconciliation to net income.
30
Funds From Operations of Liberty
Liberty uses the NAREIT definition of FFO as an operating measure of Liberty's financial performance. Liberty believes that the calculation of FFO is helpful to investors and management as it is a measure of Liberty's operating performance that excludes depreciation and amortization and gains and losses from dispositions of depreciable property. As a result, year over year comparison of FFO reflects the impact on operations from trends in occupancy rates, rental rates, operating costs, development activities, general and administrative expenses, and interest costs, providing perspective not immediately apparent from net income. In addition, Liberty's management believes that FFO provides useful information to the investment community about Liberty's financial performance when compared to other REITs since FFO is generally recognized as the standard for reporting the operating performance of a REIT. FFO is defined by NAREIT as follows: net income (computed in accordance with GAAP), excluding depreciation and amortization related to real estate, gains and losses from the sale of certain real estate assets, gains and losses from change in control, and impairment write-downs of certain real estate assets and investments in entities when the impairment is directly attributable to decreases in the value of depreciable real estate held by the entity. Liberty has opted to include gains and losses from the sale of assets incidental to its main business as a REIT. FFO as defined by NAREIT does not represent net income or cash flows from operations as defined by GAAP and does not necessarily indicate that cash flows will be sufficient to fund cash needs. It should not be considered as an alternative to net income as an indicator of Liberty's operating performance or to cash flows as a measure of liquidity. FFO as defined by NAREIT also does not represent cash flows generated from operating, investing or financing activities as defined by GAAP.
| |
Nine Months Ended September 30, |
Year Ended December 31, | ||||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
2019 | 2018 | 2018 | 2017 | 2016 | 2015 | 2014 | |||||||||||||||
| |
(in millions) |
|||||||||||||||||||||
Reconciliation of net income available to common shareholders to NAREIT FFO available to common shareholders—diluted: |
||||||||||||||||||||||
Net income available to common shareholders |
$ | 254 | $ | 310 | $ | 480 | $ | 282 | $ | 357 | $ | 239 | $ | 218 | ||||||||
Adjustments: |
||||||||||||||||||||||
Depreciation and amortization of unconsolidated joint ventures |
9 | 10 | 13 | 10 | 11 | 12 | 13 | |||||||||||||||
Depreciation and amortization |
131 | 130 | 173 | 180 | 204 | 225 | 230 | |||||||||||||||
(Gain)/loss on property dispositions / impairment—real estate assets of unconsolidated joint ventures |
7 | — | 6 | 3 | (7 | ) | 11 | — | ||||||||||||||
(Gain) on property dispositions / impairment—depreciable real estate assets continuing operations |
(8 | ) | (51 | ) | (54 | ) | (83 | ) | (216 | ) | (82 | ) | (91 | ) | ||||||||
(Gain) on property dispositions / impairment—depreciable real estate assets discontinued operations |
(94 | ) | (185 | ) | (296 | ) | (8 | ) | — | — | — | |||||||||||
Noncontrolling interest less preferred share distributions |
6 | 7 | 11 | 7 | 8 | 6 | 6 | |||||||||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
NAREIT FFO available to common shareholders—diluted |
$ | 305 | $ | 221 | $ | 333 | $ | 391 | $ | 357 | $ | 411 | $ | 376 | ||||||||
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | |
Selected Unaudited Pro Forma Condensed Combined Financial Information (See page F-1)
The following table shows summary unaudited pro forma condensed combined financial information about the financial condition and operating results of the Combined Company after giving effect to the proposed mergers and the completed acquisition of DCT Industrial Trust Inc., referred to herein as "DCT," by Prologis on August 22, 2018.
The unaudited pro forma condensed combined financial information includes the DCT acquisition accounted for as an asset acquisition and assumes the mergers are accounted for as an asset acquisition with Prologis as the acquirer. The selected unaudited pro forma condensed combined balance sheet data gives effect to the mergers as if they had occurred on September 30, 2019. The selected unaudited pro forma condensed combined statement of operations data gives effect to the mergers as if they had
31
become effective at January 1, 2018, based on the most recent valuation data available. On August 22, 2018, Prologis acquired DCT, and therefore the DCT results are included in Prologis results since that date. The selected unaudited pro forma condensed combined statement of operations for the year ended December 31, 2018 includes the historical consolidated statement of operations of DCT for the period from January 1, 2018 through June 30, 2018, with adjustments to include the DCT results from July 1, 2018 through the acquisition date and to give effect to the completion of the acquisition as if it had occurred on January 1, 2018.
The summary unaudited pro forma condensed combined financial information listed below has been derived from and should be read in conjunction with (i) the more detailed unaudited pro forma condensed combined financial information, including the notes thereto, appearing elsewhere in this proxy statement/prospectus (ii) the consolidated financial statements and the related notes of Prologis contained in its Annual Report on Form 10-K for the year ended December 31, 2018 and of Liberty as contained in its Current Report on Form 8-K filed with the SEC on November 25, 2019, (iii) the consolidated financial statements and related notes of DCT for the year ended December 31, 2017 and for the six months ended June 30, 2018 and (iii) the consolidated financial statements and related notes of both Prologis and Liberty contained in their respective Quarterly Reports on Form 10-Q for the nine months ended September 30, 2019, all of which are incorporated by reference into this proxy statement/prospectus. See "Unaudited Pro Forma Condensed Combined Financial Statements" and "Where You Can Find More Information and Incorporation by Reference."
The unaudited pro forma condensed combined financial information is presented for illustrative purposes only and is not necessarily indicative of the combined operating results or financial position that would have occurred if such transactions had been consummated on the dates and in accordance with the assumptions described herein, nor is it necessarily indicative of the future operating results or financial position of the Combined Company.
The unaudited pro forma condensed combined financial information does not give effect to any potential revenue enhancements or cost synergies that management expects to result from the mergers. In addition, as explained in more detail in the accompanying notes to the unaudited pro forma condensed combined financial information, the preliminary allocation of the pro forma purchase price reflected in the unaudited pro forma condensed combined financial information is subject to adjustment and may vary significantly from the definitive allocation of the final purchase price that will be recorded subsequent to completion of the mergers. The determination of the final purchase price will be based on the trading price of Prologis common stock as of the closing date.
| |
For the Nine Months Ended September 30, 2019 |
For the Year Ended December 31, 2018 |
|||||
|---|---|---|---|---|---|---|---|
| |
(in millions, except per share amounts) |
||||||
Operating Data: |
|||||||
Total revenues |
$ | 2,995 | $ | 3,784 | |||
Operating income |
$ | 1,373 | $ | 1,811 | |||
Consolidated net earnings |
$ | 1,330 | $ | 1,890 | |||
Net earnings attributable to common stockholders |
$ | 1,235 | $ | 1,705 | |||
Net earnings per share attributable to common stockholders |
|||||||
Basic |
$ | 1.67 | $ | 2.32 | |||
Diluted |
$ | 1.66 | $ | 2.30 | |||
32
| |
As of September 30, 2019 |
|||
|---|---|---|---|---|
Balance Sheet Data: |
||||
Investments in real estate properties |
$ | 46,376 | ||
Net investments in real estate |
$ | 48,545 | ||
Total assets |
$ | 52,985 | ||
Total debt |
$ | 14,695 | ||
Prologis, Inc. stockholders' equity |
$ | 32,080 | ||
Selected Unaudited Comparative Per Share Information
The following table sets forth selected per share information on an historical basis and for the Combined Company on a pro forma basis after giving effect to the DCT acquisition and to the mergers, for the year ended December 31, 2018 and the nine months ended September 30, 2019, in the case of Prologis common stock and Liberty common shares, and for the period from January 1, 2018 to June 30, 2018 in the case of DCT common stock, par value $0.01 per share. The information in the table is unaudited. You should read the tables below together with the historical consolidated financial statements and related notes of Prologis contained in its Annual Report on Form 10-K for the year ended December 31, 2018 and of Liberty as contained in its Current Report on Form 8-K filed with the SEC on November 25, 2019 and with the consolidated financial statements and related notes of DCT for the year ended December 31, 2017, and each of Prologis' and Liberty's respective Quarterly Reports on Form 10-Q for the quarter ended September 30, 2019, which are incorporated by reference into this proxy statement/prospectus. See "Where You Can Find More Information and Incorporation by Reference" beginning on page 170 for more information.
The pro forma Combined Company net earnings per share for the nine months ended September 30, 2019 and the year ended December 31, 2018 includes the combined net earnings attributable to the common stockholders of Prologis and common shareholders of Liberty on a pro forma basis as if the transaction was consummated on January 1, 2018 and, with respect to net book value per share of common stock or common share, on September 30, 2019.
The Prologis pro forma combined per share data is presented for illustrative purposes only and is not necessarily indicative of the operating results or financial position that would have occurred if the transactions had been consummated at the beginning of the earliest period presented, nor is it necessarily indicative of future operating results or financial position. The pro forma adjustments are estimates based upon information and assumptions available at the time of the filing of this proxy statement/prospectus.
33
The Liberty pro forma equivalent information shows the effect of the mergers from the perspective of an owner of Liberty common shares and the information was computed by multiplying the Prologis pro forma combined information by the exchange ratio of 0.675.
| |
Prologis Historical |
Liberty Historical(1) |
Pro Forma Combined(2) |
Pro Forma Equivalent Liberty Share |
|||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
For the year ended December 31, 2018 for Prologis and Liberty |
|||||||||||||
Net earnings per share attributable to common stockholders, basic |
$ | 2.90 | $ | 0.98 | $ | 2.32 | $ | 1.57 | |||||
Net earnings per share attributable to common stockholders, diluted |
$ | 2.87 | $ | 0.97 | $ | 2.30 | $ | 1.55 | |||||
Cash dividends declared per share of common stock |
$ | 1.92 | $ | 1.60 | $ | 1.92 | $ | 1.30 | |||||
For the nine months ended September 30, 2019 |
|||||||||||||
Net earnings per share attributable to common stockholders, basic |
$ | 1.87 | $ | 1.02 | $ | 1.67 | $ | 1.13 | |||||
Net earnings per share attributable to common stockholders, diluted |
$ | 1.86 | $ | 1.01 | $ | 1.66 | $ | 1.12 | |||||
Cash dividends declared per share of common stock |
$ | 1.59 | $ | 1.23 | $ | 1.59 | $ | 1.07 | |||||
As of September 30, 2019 |
|||||||||||||
Net book value per share of common stock |
$ | 35.53 | $ | 24.36 | $ | 43.33 | $ | 29.25 | |||||
- (1)
- Net
earnings per share attributable to common stockholders (basic and diluted) only includes income from continuing operations.
- (2)
- Pro forma combined information includes the historical consolidated statement of operations of DCT for the period from January 1, 2018 through June 30, 2018, with adjustments to include the DCT results from July 1, 2018 through August 22, 2018 and to give effect to the completion of the acquisition as if it had occurred on January 1, 2018.
Recent Closing Prices
The table below sets forth the closing per share sales prices of Prologis common stock and Liberty common shares as reported by the NYSE on October 25, 2019, the last full trading day before the public announcement of the execution of the merger agreement by Prologis and Liberty. The Liberty pro forma equivalent closing share price is equal to the closing price of a share of Prologis common stock on each such date multiplied by 0.675 (the exchange ratio of shares of Prologis common stock for each Liberty common share).
| |
Prologis Common Stock |
Liberty Common Shares |
Liberty Pro Forma Equivalent |
|||||||
|---|---|---|---|---|---|---|---|---|---|---|
October 25, 2019 |
$ | 90.86 | $ | 50.57 | $ | 61.33 | ||||
The market price of Prologis common stock and Liberty common shares will fluctuate between the date of this proxy statement/prospectus and the effective time of the mergers. Because the number of shares of Prologis common stock to be issued in the Topco merger for each Liberty common share is fixed in the merger agreement, the market value of Prologis common stock to be received by Liberty shareholders at the effective time of the Topco merger may vary significantly from the prices shown in the table above. As a result, you should obtain recent market prices of shares of Prologis common stock and Liberty common shares prior to voting your shares. See "Risk Factors—Risk Factors Relating to the Mergers" beginning on page 35.
Following the mergers, Prologis common stock will continue to be listed on the NYSE and, until the completion of the Topco merger, Liberty common shares will continue to be listed on the NYSE.
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In addition to the other information included in this proxy statement/prospectus, including the matters addressed in the section entitled "Cautionary Statement Concerning Forward-Looking Statements," you should carefully consider the following risks before deciding how to vote your Liberty common shares. In addition, you should read and consider the risks associated with each of the businesses of Prologis and Liberty because these risks will also affect the Combined Company. These risks can be found in the respective Annual Reports on Form 10-K for the year ended December 31, 2018 and subsequent Quarterly Reports on Form 10-Q of Prologis and Liberty, each of which is filed with the SEC and incorporated by reference into this proxy statement/prospectus. You should also read and consider the other information in this proxy statement/prospectus and the other documents incorporated by reference into this proxy statement/prospectus. See "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
The exchange ratio is fixed and will not be adjusted in the event of any change in the stock prices of either Prologis or Liberty.
Upon the closing of the company mergers, each outstanding Liberty common share (other than Liberty common shares owned by any of the Liberty parties or any wholly owned subsidiary of Liberty and each Liberty common share owned by any of the Prologis parties or any of their respective wholly owned subsidiaries) will be converted into the right to receive 0.675 shares of Prologis common stock, with cash paid in lieu of any fractional shares, without interest. The exchange ratio of 0.675 was fixed in the merger agreement and, except for certain adjustments on account of changes in the capitalization of Prologis or Liberty, will not be adjusted for changes in the market prices of either shares of Prologis common stock or Liberty common shares. Changes in the market price of shares of Prologis common stock prior to the closing of the company mergers will affect the market value of the merger consideration that Liberty shareholders will be entitled to receive upon completion of the mergers. Stock price changes may result from a variety of factors (many of which are beyond the control of Prologis and Liberty), including the following factors:
- •
- market reaction to the announcement of the mergers and the prospects of the Combined Company;
- •
- changes in the respective businesses, operations, assets, liabilities and prospects of Prologis, Liberty or the Combined Company;
- •
- changes in market assessments of the business, operations, financial position and prospects of Prologis, Liberty or the Combined Company;
- •
- market assessments of the likelihood that the mergers will close;
- •
- interest rates, general market and economic conditions and other factors generally affecting the market prices of Prologis common stock and
Liberty common shares;
- •
- federal, state and local legislation, governmental regulation and legal developments in the businesses in which Prologis or Liberty operate;
and
- •
- other factors beyond the control of Prologis and Liberty, including those described or referred to elsewhere in this "Risk Factors" section.
The market price of shares of Prologis common stock at the closing of the mergers may vary from its price on the date the merger agreement was executed, on the date of this proxy statement/prospectus, on the date of the Liberty special meeting and on the date of the closing of the mergers. As a result, the market value of the merger consideration represented by the exchange ratio will also
35
vary. For example, based on the range of trading prices of shares of Prologis common stock during the period after October 25, 2019, the last trading day before Liberty and Prologis announced the mergers, through December 16, 2019, the exchange ratio represented a market value ranging from $57.43 to $62.64.
If the market price of shares of Prologis common stock increases between the date the merger agreement was signed, the date of this proxy statement/prospectus, the date of the Liberty special meeting or the date of the closing of the mergers, Liberty shareholders could receive shares of Prologis common stock that have a market value upon completion of the mergers that is greater than the market value of such shares calculated pursuant to the exchange ratio on the date the merger agreement was signed, the date of the proxy statement/prospectus or on the date of the Liberty special meeting, respectively. Conversely, if the market price of shares of Prologis common stock declines between the date the merger agreement was signed or the date of the Liberty special meeting and the closing of the mergers, Liberty shareholders could receive shares of Prologis common stock that have a market value upon the closing of the mergers that is less than the market value of such shares calculated pursuant to the exchange ratio on the date the merger agreement was signed, the date of this proxy statement/prospectus or on the date of the Liberty special meeting, respectively. Furthermore, at the time of the Liberty special meeting, Liberty shareholders will not know with certainty the value of the Prologis common stock that they will receive upon completion of the mergers.
Therefore, while the number of shares of Prologis common stock to be issued per Liberty common share is fixed, Liberty shareholders cannot be sure of the market value of the merger consideration they will receive upon the closing of the mergers.
Liberty shareholders will be diluted by the mergers.
The mergers will result in Liberty shareholders having an ownership stake in the Combined Company that is smaller than their current stake in Liberty. Upon completion of the mergers, based on the number of shares of Prologis common stock and Liberty common shares outstanding on December 16, 2019, we estimate that continuing Prologis stockholders will own approximately 86% of the issued and outstanding common stock of the Combined Company, and former Liberty shareholders will own approximately 14% of the issued and outstanding common stock of the Combined Company. Consequently, Liberty shareholders, as a general matter, will have less influence over the management and policies of the Combined Company after the effective time of the Topco merger than they currently exercise over the management and policies of Liberty.
Completion of the mergers is subject to many conditions and if these conditions are not satisfied or waived, the mergers will not be completed, which could result in a requirement that Liberty pay certain termination fees.
The consummation of the mergers is subject to certain conditions, including (i) the approval of the company mergers by the holders at least two-thirds of the outstanding Liberty common shares entitled to vote on such matter, (ii) the shares of Prologis common stock to be issued in the Topco merger having been approved for listing on the NYSE, (iii) the Form S-4 having been declared effective, (iv) the absence of any temporary restraining order, injunction or other order, decree or judgment being issued by any governmental authority and no law being enacted, which would have the effect of making illegal or otherwise prohibiting the consummation of the mergers or the other transactions contemplated by the merger agreement, (v) the receipt of certain legal opinions by Prologis and Liberty and (vi) other customary conditions specified in the merger agreement. See "The Merger Agreement—Conditions to the Completion of the Mergers."
There can be no assurance that the conditions to the closing of the mergers will be satisfied or waived or that the mergers will be completed. Failure to consummate the mergers may adversely affect
36
Liberty's results of operations and business prospects for the following reasons, among others: (i) Liberty will incur certain transaction costs, regardless of whether the proposed mergers close, which could adversely affect its financial condition, results of operations and ability to make distributions to its shareholders; and (ii) the proposed mergers, whether or not they close, will divert the attention of certain of Liberty's management and other key employees from ongoing business activities, including the pursuit of other opportunities that could be beneficial to Liberty. In addition, Liberty or Prologis may terminate the merger agreement under certain circumstances, including, among other reasons, if the mergers are not completed by June 1, 2020.
If the merger agreement is terminated under certain circumstances specified in the merger agreement, Liberty may be required to pay Prologis a termination fee of $325 million (or $150 million under certain circumstances) and/or reimburse Prologis' transaction expenses up to an amount equal to $15 million. If the mergers are not consummated, the price of Liberty common shares might decline.
Failure to complete the mergers could negatively impact the stock prices and the future business and financial results of Liberty.
If the mergers are not completed, the ongoing business of Liberty could be materially adversely affected and without realizing any of the benefits of having completed the mergers, Liberty will be subject to a variety of risks associated with the failure to complete the mergers, including the following:
- •
- the market price of Liberty common shares could decline;
- •
- Liberty being required, under certain circumstances, to pay to Prologis a termination fee of $325 million (or $150 million under
certain circumstances) depending on the circumstances and/or reimburse Prologis' reasonable expenses up to $15 million;
- •
- if the merger agreement is terminated and the Liberty board seeks another business combination, Liberty shareholders cannot be certain that
Liberty will be able to find a party willing to enter into a transaction on terms equivalent to or more attractive than the terms that Prologis has agreed to in the merger agreement;
- •
- Liberty may experience negative reactions from the financial markets or its tenants, vendors or employees;
- •
- Liberty having to pay certain costs relating to the mergers, such as legal, accounting, financial advisor, filing, printing and mailing fees
whether or not the mergers are completed; and
- •
- diversion of Liberty management focus and resources from operational matters and other strategic opportunities while working to implement the mergers.
If the mergers are not completed, these risks could materially affect the business, financial results and share price of Liberty. In addition, if the mergers are not completed, Liberty could be subject to litigation related to any failure to complete the mergers or related to any enforcement proceeding commenced against Liberty to perform its obligations under the merger agreement. The materialization of any of these risks could adversely impact Liberty's ongoing business.
The pendency of the mergers could adversely affect the business and operations of Liberty.
Prior to the effective time of the mergers, some tenants, prospective tenants or vendors of Liberty may delay or defer decisions, which could negatively affect the revenues, earnings, cash flows and expenses of Liberty, regardless of whether the mergers are completed. Similarly, current and prospective employees of Liberty may experience uncertainty about their future roles with the Combined Company following the mergers, which may materially adversely affect the ability of Liberty to attract and retain key personnel during the pendency of the mergers. In addition, due to operating restrictions in the merger agreement, Liberty may be unable, during the pendency of the mergers, to
37
pursue strategic transactions, undertake significant capital projects, undertake certain significant financing transactions and otherwise pursue other actions, even if such actions would prove beneficial.
The merger agreement contains provisions that could make it difficult for a third party to acquire Liberty prior to the mergers.
Pursuant to the merger agreement, Liberty has agreed not to (i) solicit proposals relating to certain alternative transactions, (ii) engage in discussions or negotiations or provide non-public information in connection with any proposal for an alternative transaction from a third party or (iii) approve or enter into any agreements providing for any such alternative transaction, in each case, subject to certain exceptions to permit members of the Liberty board to comply with their duties as trustees under applicable law. Notwithstanding these "no-shop" restrictions, prior to obtaining the Liberty shareholder approval, under specified circumstances the Liberty board may change its recommendation of the transaction, and Liberty may also terminate the merger agreement to accept a superior proposal upon payment of the termination fee described below.
The merger agreement provides that, in connection with the termination of the merger agreement under specified circumstances, Liberty may be required to pay to Prologis a termination fee of $325 million (or $150 million under certain circumstances) and/or reimburse Prologis' transaction expenses up to an amount equal to $15 million. See "The Merger Agreement—Covenants and Agreements—No Solicitation of Acquisition Proposals" and "The Merger Agreement—Termination of the Merger Agreement—Termination Fee and Expenses Payable by Liberty to Prologis."
These provisions could discourage a potential competing acquirer that might have an interest in acquiring all or a significant part of Liberty from considering or proposing such an acquisition, even if the potential competing acquirer was prepared to pay consideration with a higher per share value than the value proposed to be received or realized in the mergers, or might result in a potential competing acquirer proposing to pay a lower per share value than it might otherwise have proposed to pay because of the added expense of the termination fee that may become payable in certain circumstances under the merger agreement.
If the merger agreement is terminated and Liberty determines to seek another business combination, Liberty may not be able to negotiate a transaction with another party on terms comparable to, or better than, the terms of the mergers contemplated by the merger agreement.
If the mergers are not consummated by June 1, 2020, either Prologis or Liberty may terminate the merger agreement.
Either Prologis or Liberty may terminate the merger agreement if the mergers have not been consummated by June 1, 2020. However, this termination right will not be available to a party if that party failed to comply with the merger agreement and that failure was the primary cause of, or resulted in, the failure to consummate the mergers on or before June 1, 2020. See "The Merger Agreement—Termination of the Merger Agreement."
Some of the trustees and named executive officers of Liberty have interests in the mergers that are different from, or in addition to, those of the other Liberty shareholders.
In considering whether to approve the mergers as contemplated by the merger agreement, Liberty shareholders should recognize that members of management and the Liberty board have interests in the mergers that differ from, or are in addition to, the interests of other Liberty shareholders. Some of the trustees and named executive officers of Liberty have arrangements that provide them with interests in the mergers that are different from, or in addition to, those of the Liberty shareholders, generally. These interests include, among other things, a severance payment if terminated upon, or following, consummation of the mergers. These interests, among other things, may influence or may have
38
influenced the trustees and named executive officers of Liberty to support or approve the company mergers. See "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers."
If the company mergers do not qualify as reorganizations, there may be adverse tax consequences.
Each of the Liberty merger and the Topco merger is intended to qualify as a reorganization within the meaning of Section 368(a) of the Code. It is a condition to the completion of the mergers that Liberty receives a written opinion from its counsel to the effect that the Liberty merger will qualify as a reorganization within the meaning of Section 368(a) of the Code, and that Prologis and Liberty receive written opinions from their respective counsel to the effect that the Topco merger will qualify as a reorganization within the meaning of Section 368(a) of the Code. The foregoing opinions, however, are limited to the factual representations provided by Prologis and Liberty to counsel and the assumptions set forth therein, and are not a guarantee that the company mergers, in fact, will qualify as reorganizations. Moreover, neither Liberty nor Prologis has requested or plans to request a ruling from the IRS that the company mergers qualify as reorganizations. If the Liberty merger were to fail to qualify as a reorganization, then each United States holder (as defined in the discussion under the heading "The Mergers—Material United States Federal Income Tax Consequences of the Company Mergers") of Liberty common shares generally would recognize gain or loss, as applicable, equal to the difference between (i) the sum of the fair market value of the shares of New Liberty Holdco common shares received by such holder in the Liberty merger; and (ii) such holder's adjusted tax basis in its Liberty common shares. If the Topco merger were to fail to qualify as a reorganization, then each United States holder of New Liberty Holdco common shares generally would recognize gain or loss, as applicable, equal to the difference between (i) the sum of the fair market value of the shares of Prologis common stock and cash in lieu of any fractional share of Prologis common stock received by such holder in the Topco merger; and (ii) such holder's adjusted tax basis in its New Liberty Holdco common shares.
In connection with the announcement of the merger agreement, four lawsuits have been filed and are pending as of December 18, 2019, seeking, among other things, to enjoin the mergers. An injunction or other adverse ruling being entered in either lawsuit may prevent the mergers from being effective or from becoming effective within the expected timeframe.
On November 27, 2019, the Stein Action was filed in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Stein Action alleges that Liberty and the Liberty board violated federal securities laws by omitting material information from the Form S-4, rendering the Form S-4 materially deficient. On December 5, 2019, the Thompson Action was filed, also in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Thompson Action alleges that Liberty, Liberty OP, the Liberty board, Prologis, Prologis OP, Prologis Merger Sub, Prologis OP Merger Sub and New Liberty Holdco violated federal securities laws by omitting from the Form S-4, and/or misrepresenting in the Form S-4, material information, rendering the Form S-4 materially deficient. On December 16, 2019, the Berlinger Action was filed in the United States District Court for the District of Maryland, in connection with Liberty's proposed merger with Prologis and the related Form S-4. The complaint in the Berlinger Action alleges that Liberty and the Liberty board violated federal securities laws by omitting material information in the Form S-4, rendering the Form S-4 materially deficient. On December 16, 2019, the Garfield Action was filed. The complaint in the Garfield Action alleges that Prologis and Liberty omitted material information from the Form S-4, rendering the Form S-4 materially deficient, that the Liberty board violated its fiduciary duties to Liberty shareholders in connection with the proposed merger of Liberty and Prologis, and that Prologis aided and abetted those breaches of fiduciary duty. Plaintiffs in the Stein, Thompson, Berlinger and Garfield Actions seek, among other things, (i) to enjoin the transaction, and (ii) attorneys' fees and costs in connection with these lawsuits. If additional similar complaints are
39
filed, absent new or different allegations that are material, neither Liberty nor Prologis will necessarily announce such additional filings.
While Liberty and Prologis management believe that the allegations in these complaints are without merit and intend to defend vigorously against these allegations, we cannot assure you as to the outcome of these, or any similar future lawsuits, including the costs associated with defending these claims or any other liabilities that may be incurred in connection with the litigation or settlement of these claims. For more information about litigation related to the mergers, see "The Mergers—Litigation Relating to the Mergers" beginning on page 111.
Risks Related to the Combined Company Following the Mergers
The Combined Company expects to incur substantial expenses related to the mergers.
The Combined Company expects to incur substantial expenses in connection with completing the mergers and integrating the operations and systems of Liberty with those of Prologis. While Prologis has assumed that a certain level of expenses would be incurred, there are a number of factors beyond its control that could affect the total amount or the timing of the Combined Company's expenses relating to the completion of the mergers and the Combined Company's operations. Many of the expenses that will be incurred, by their nature, are difficult to estimate accurately at the present time. As a result, the expenses associated with the mergers could, particularly in the near term, reduce the savings that the Combined Company expects to achieve from the elimination of duplicative expenses and the realization of economies of scale and cost savings related to the integration of the operations of Liberty following the completion of the mergers.
Following the mergers, the Combined Company may be unable to integrate the operations of Prologis and Liberty successfully and realize the anticipated synergies and other benefits of the mergers or do so within the anticipated timeframe.
The mergers involve the combination of two companies that currently operate as independent public companies and their respective operating partnerships. The Combined Company is expected to benefit from the elimination of duplicative costs associated with supporting a public company platform and the leveraging of state of the art technology and systems. However, the Combined Company will be required to devote significant management attention and resources to integrating the operations of Prologis and Liberty. Potential difficulties the Combined Company may encounter in the integration process include the following:
- •
- the inability to successfully combine the operations of Prologis and Liberty in a manner that permits the Combined Company to achieve the cost
savings anticipated to result from the mergers, which would result in the anticipated benefits of the mergers not being realized in the timeframe currently anticipated or at all;
- •
- the inability to dispose of former Liberty assets or operations that are outside of the Combined Company's area of expertise;
- •
- potential unknown liabilities and unforeseen increased expenses, delays or regulatory conditions associated with the mergers; and
- •
- performance shortfalls as a result of the diversion of management's attention caused by completing the mergers and integrating the companies' operations.
For all these reasons, you should be aware that it is possible that the integration process could result in the distraction of the Combined Company's management, the disruption of the Combined Company's ongoing business or inconsistencies in the Combined Company's operations, services, standards, controls, procedures and policies, any of which could adversely affect the ability of the
40
Combined Company to maintain relationships with tenants, vendors and employees or to achieve the anticipated benefits of the mergers, or could otherwise adversely affect the business and financial results of the Combined Company.
The Combined Company's anticipated level of indebtedness may increase upon completion of the mergers and may increase the related risks Prologis now faces.
In connection with the mergers, the Combined Company may assume and/or refinance certain indebtedness of Liberty and Liberty OP and, as a result, may be subject to increased risks associated with debt financing, including an increased risk that the Combined Company's cash flow could be insufficient to meet required payments on its debt. On September 30, 2019, Prologis had indebtedness of approximately $11.5 billion. After giving effect to the mergers, the Combined Company's total pro forma consolidated indebtedness will increase. Taking into account Prologis' existing indebtedness and the assumption of Liberty's debt in the mergers, the Combined Company's pro forma consolidated indebtedness as of September 30, 2019, after giving effect to the mergers, would be approximately $14.7 billion.
The Combined Company's increased indebtedness could have important consequences to holders of its common stock, including Liberty shareholders who receive Prologis common stock in the Topco merger, including:
- •
- increasing the Combined Company's vulnerability to general adverse economic and industry conditions;
- •
- limiting the Combined Company's ability to obtain additional financing to fund future working capital, capital expenditures and other general
corporate requirements;
- •
- requiring the use of a substantial portion of the Combined Company's cash flow from operations for the payment of principal and interest on its
indebtedness, thereby reducing its ability to use its cash flow to fund working capital, acquisitions, capital expenditures and general corporate requirements;
- •
- limiting the Combined Company's flexibility in planning for, or reacting to, changes in its business and its industry; and
- •
- putting the Combined Company at a disadvantage compared to its competitors with less indebtedness.
If the Combined Company defaults under a mortgage loan, it will automatically be in default under any other loan that has cross-default provisions, and it may lose the properties securing these loans. Although the Combined Company anticipates that it will pay off its mortgage payables as soon as prepayment penalties and other costs make it economically feasible to do so, the Combined Company cannot anticipate when such payment will occur.
The future results of the Combined Company will suffer if the Combined Company does not effectively manage its expanded operations following the mergers.
Following the mergers, the Combined Company expects to continue to expand its operations through additional acquisitions and development of properties, some of which may involve complex challenges. The future success of the Combined Company will depend, in part, upon the ability of the Combined Company to manage its expansion opportunities, which may pose substantial challenges for the Combined Company to integrate new operations into its existing business in an efficient and timely manner, and upon its ability to successfully monitor its operations, costs, regulatory compliance and service quality, and to maintain other necessary internal controls. There is no assurance that the Combined Company's expansion or acquisition opportunities will be successful, or that the Combined
41
Company will realize its expected operating efficiencies, cost savings, revenue enhancements, synergies or other benefits.
Counterparties to certain significant agreements with Liberty may exercise contractual rights under such agreements in connection with the mergers.
Liberty is a party to certain agreements that give the counterparty certain rights following a "change in control," including in some cases the right to terminate the agreement. Under some such agreements, the mergers may constitute a change in control and therefore the counterparty may exercise certain rights under the agreement upon the closing of the mergers. Any such counterparty may request modifications of their respective agreements as a condition to granting a waiver or consent under their agreement. The pursuit of such rights by the counterparties may result in the Combined Company suffering a loss of potential future revenue or incurring liabilities and may result in the loss of rights that are material to the Combined Company's business. There can be no assurances that such counterparties will not exercise their rights under these agreements, including termination rights where available, or that the exercise of any such rights under, or modification of, these agreements will not adversely affect the business or operations of the Combined Company.
Risks Related to an Investment in the Combined Company Common Stock Following the Mergers
The market price and trading volume of the Combined Company common stock may be volatile.
The United States stock markets, including the NYSE, on which the Combined Company common stock will continue to be listed under the symbol "PLD," have experienced significant price and volume fluctuations. As a result, the market price of shares of the Combined Company common stock is likely to be similarly volatile, and investors in shares of the Combined Company common stock may experience a decrease in the value of their shares, including decreases unrelated to the Combined Company's operating performance or prospects. Prologis and Liberty cannot assure you that the market price of the Combined Company common stock will not fluctuate or decline significantly in the future.
In addition to the risks listed in this "Risk Factors" section, a number of factors could negatively affect the Combined Company's share price or result in fluctuations in the price or trading volume of the Combined Company common stock, including:
- •
- the annual yield from distributions on the Combined Company common stock as compared to yields on other financial instruments;
- •
- equity issuances by the Combined Company, or future sales of substantial amounts of the Combined Company common stock by its existing or future
stockholders, or the perception that such issuances or future sales may occur;
- •
- increases in market interest rates or a decrease in the Combined Company's distributions to stockholders that lead purchasers of the Combined
Company common stock to demand a higher yield;
- •
- changes in market valuations of similar companies;
- •
- fluctuations in stock market prices and volumes;
- •
- additions or departures of key management personnel;
- •
- the Combined Company's operating performance and the performance of other similar companies;
- •
- actual or anticipated differences in the Combined Company's quarterly operating results;
42
- •
- changes in expectations of future financial performance or changes in estimates of securities analysts;
- •
- publication of research reports about the Combined Company or its industry by securities analysts;
- •
- failure to qualify as a REIT for federal income tax purposes;
- •
- adverse market reaction to any indebtedness the Combined Company incurs in the future;
- •
- strategic decisions by the Combined Company or its competitors, such as acquisitions, divestments, spin-offs, joint ventures, strategic
investments or changes in business strategy;
- •
- the passage of legislation or other regulatory developments that adversely affect the Combined Company or its industry or any failure by the
Combined Company to comply with regulatory requirements;
- •
- the expiration or loss of local tax abatements, tax credit programs, or other governmental incentives;
- •
- the imposition of a penalty tax as a result of certain property transfers that may generate prohibited transaction income;
- •
- the inability of the Combined Company to sell properties if and when it would be appropriate to do so;
- •
- risks and liabilities in connection with the Combined Company's co-investment ventures and investment in new or existing co-investment
ventures, including the that the Combined Company's property ownership through joint ventures may limit its ability to act exclusively in its interests and may depend on the financial performance of
its co-venturers;
- •
- speculation in the press or investment community;
- •
- changes in the Combined Company's earnings;
- •
- failure to satisfy the listing requirements of the NYSE;
- •
- failure to comply with the requirements of the Sarbanes-Oxley Act;
- •
- actions by institutional stockholders of the Combined Company;
- •
- changes in accounting principles;
- •
- changes in environmental conditions or the potential impact of climate change;
- •
- terrorist attacks or other acts of violence or war in areas in which the Combined Company's properties are located or markets on which the
Combined Company's securities are traded; and
- •
- general economic and/or market conditions, including factors unrelated to the Combined Company's performance.
In the past, securities class action litigation has often been instituted against companies following periods of volatility in the price of their common stock. This type of litigation could result in substantial costs and divert the Combined Company's management's attention and resources, which could have a material adverse effect on the Combined Company's cash flows, its ability to execute its business strategy and the Combined Company's ability to make distributions to its stockholders.
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The market price of shares of the common stock of the Combined Company may be affected by factors different from those affecting the prices of shares of Prologis common stock or Liberty common shares before the mergers.
The results of operations of the Combined Company, as well as the market price of the common stock of the Combined Company, after the mergers may be affected by other factors in addition to those currently affecting Prologis' or Liberty's results of operations and the market prices of Prologis common stock and Liberty common shares. These factors include:
- •
- a greater number of shares of the Combined Company common stock outstanding as compared to the number of currently outstanding shares of
Prologis common stock;
- •
- different stockholders; and
- •
- different assets and capitalizations.
Accordingly, the historical market prices and financial results of Prologis and Liberty may not be indicative for the Combined Company after the mergers. For a discussion of the businesses of Prologis and Liberty and certain risks to consider in connection with investing in those businesses, see the documents incorporated by reference by Prologis and Liberty into this proxy statement/prospectus referred to under "Where You Can Find More Information and Incorporation by Reference."
The market price of the Combined Company common stock may decline as a result of the mergers.
The market price of the Combined Company common stock may decline as a result of the mergers if the Combined Company does not achieve the perceived benefits of the mergers as rapidly or to the extent anticipated by financial or industry analysts, or the effect of the mergers on the Combined Company's financial results is not consistent with the expectations of financial or industry analysts.
In addition, upon consummation of the mergers, Prologis stockholders and Liberty shareholders will own interests in a Combined Company operating an expanded business with a different mix of properties, risks and liabilities. Current Prologis stockholders and Liberty shareholders may not wish to continue to invest in the Combined Company, or for other reasons may wish to dispose of some or all of their shares of the Combined Company common stock. If, following the effective time of the company mergers, large amounts of the Combined Company common stock are sold, the price of the Combined Company common stock could decline.
After the mergers are completed, Liberty shareholders who receive shares of Prologis common stock in the Topco merger will have different rights that may be less favorable than their current rights as Liberty shareholders.
After the closing of the mergers, Liberty shareholders who receive shares of Prologis common stock in the Topco merger will have different rights than they currently have as Liberty shareholders. For a detailed discussion of the similarities and material differences between the current rights you have as a Liberty shareholder and the rights you will have as a stockholder of the Combined Company following the mergers, see "Comparison of Rights of the Prologis Stockholders and the Liberty Shareholders."
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The Combined Company cannot assure you that it will be able to continue paying dividends at or above the rates currently paid by Prologis and Liberty.
The stockholders of the Combined Company may not receive dividends at the same rate they received dividends as Prologis stockholders and as Liberty shareholders following the mergers for various reasons, including the following:
- •
- the Combined Company may not have enough cash to pay such dividends due to changes in the Combined Company's cash requirements, capital
spending plans, cash flow or financial position;
- •
- decisions on whether, when and in which amounts to make any future distributions will remain at all times entirely at the discretion of the
Combined Company's board of directors, which reserves the right to change Prologis' current dividend practices at any time and for any reason;
- •
- the Combined Company may desire to retain cash to maintain or improve its credit ratings; and
- •
- the amount of dividends that the Combined Company's subsidiaries may distribute to the Combined Company may be subject to restrictions imposed by state law and restrictions imposed by the terms of any current or future indebtedness that these subsidiaries may incur.
Stockholders of the Combined Company will have no contractual or other legal right to dividends that have not been declared by the Combined Company's board of directors.
The Combined Company may need to incur additional indebtedness in the future.
In connection with executing the Combined Company's business strategies following the mergers, the Combined Company expects to evaluate the possibility of additional acquisitions and strategic investments, and the Combined Company may elect to finance these endeavors by incurring additional indebtedness. The amount of such indebtedness could have material adverse consequences for the Combined Company, including hindering the Combined Company's ability to adjust to changing market, industry or economic conditions; limiting the Combined Company's ability to access the capital markets to refinance maturing debt or to fund acquisitions or emerging businesses; limiting the amount of free cash flow available for future operations, acquisitions, dividends, stock repurchases or other uses; making the Combined Company more vulnerable to economic or industry downturns, including interest rate increases; and placing the Combined Company at a competitive disadvantage compared to less leveraged competitors.
The historical and unaudited pro forma combined financial information included elsewhere in this proxy statement/prospectus may not be representative of the Combined Company's results following the effective time of the Topco merger, and accordingly, you have limited financial information on which to evaluate the Combined Company.
The unaudited pro forma combined financial information included elsewhere in this proxy statement/prospectus has been presented for informational purposes only and is not necessarily indicative of the financial position or results of operations that actually would have occurred had the mergers been completed as of the date indicated, nor is it indicative of the future operating results or financial position of the Combined Company. The unaudited pro forma combined financial information does not reflect future events that may occur after the effective time of the Topco merger, including the costs related to the planned integration of the two companies and any future nonrecurring charges resulting from the mergers, and does not consider potential impacts of current market conditions on revenues or expense efficiencies. The unaudited pro forma combined financial information presented elsewhere in this proxy statement/prospectus is based in part on certain assumptions regarding the mergers that Prologis and Liberty believe are reasonable under the circumstances. Prologis and Liberty cannot assure you that the assumptions will prove to be accurate over time.
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The Combined Company may incur adverse tax consequences if Prologis or Liberty has failed or fails to qualify as a REIT for United States federal income tax purposes.
Each of Prologis and Liberty has operated in a manner that it believes has allowed it to qualify as a REIT for United States federal income tax purposes under the Code and each intends to continue to do so through the closing date or the moment in time immediately prior to the Topco merger effective time, respectively. The Combined Company intends to continue operating in such a manner following the Topco merger. The closing of the company mergers is conditioned on the receipt by Prologis of an opinion of Liberty's counsel to the effect that Liberty has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and on the receipt by Liberty of an opinion of Prologis' counsel to the effect that Prologis has been organized and operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and Prologis' proposed method of organization and operation will enable it to continue to satisfy the requirements for qualification and taxation as a REIT under the Code. The foregoing REIT opinions, however, are limited to the factual representations provided by Prologis and Liberty to counsel and the assumptions set forth therein, and are not a guarantee that Prologis or Liberty, in fact, has qualified or, in the case of Prologis, will continue to qualify as a REIT. Moreover, neither Liberty nor Prologis has requested or plans to request a ruling from the IRS that it qualifies as a REIT. Qualification as a REIT involves the application of highly technical and complex Code provisions for which there are only limited judicial and administrative interpretations. The complexity of these provisions and of the applicable U.S. Treasury regulations is greater in the case of a REIT, like Prologis, that holds assets through a partnership and that has substantial foreign operations. The determination of various factual matters and circumstances not entirely within Liberty's and Prologis' control may affect their ability to qualify as REITs.
If Prologis or Liberty (or, following the Topco merger, the Combined Company) loses its REIT status, or is determined to have lost its REIT status in a prior year, it will face serious tax consequences that would substantially reduce its cash available for distribution, including cash available to pay dividends to its stockholders or shareholders, because:
- •
- it would be subject to United States federal income tax on its net income at regular corporate rates for the years it did not qualify for
taxation as a REIT (and, for such years, would not be allowed a deduction for dividends paid to stockholders or shareholders in computing its taxable income);
- •
- it could be subject to the federal alternative minimum tax and possibly increased state and local taxes for such periods;
- •
- unless it is entitled to relief under applicable statutory provisions, neither it nor any "successor" company could elect to be taxed as a REIT
until the fifth taxable year following the year during which it was disqualified; and
- •
- for five years following re-election of REIT status, upon a taxable disposition of an asset owned as of such re-election, it could be subject to corporate level tax with respect to any built-in gain inherent in such asset at the time of re-election.
As a result of all these factors, Prologis' or Liberty's (or following the Topco merger, the Combined Company's) failure to qualify as a REIT could impair the Combined Company's ability to expand its business and raise capital, and would materially adversely affect the value of its capital stock or shares of beneficial interest.
46
In certain circumstances, even if the Combined Company qualifies as a REIT, it and its subsidiaries may be subject to certain United States federal, state, and other taxes, which would reduce the Combined Company's cash available for distribution to its stockholders.
Even if the Combined Company has qualified and continues to qualify as a REIT, it may be subject to some federal, state and local taxes on its income or property and, in certain cases, a 100% penalty tax, in the event it sells property as a dealer. In addition, the Combined Company's domestic corporate subsidiaries that are taxable REIT subsidiaries could be subject to federal and state taxes, and its foreign properties and companies are subject to tax in the jurisdictions in which they operate and are located. Any federal, state or other taxes the Combined Company pays will reduce its cash available for distribution to stockholders.
If Prologis OP is classified as a "publicly traded partnership" under the Code, the Combined Company's status as a REIT and its ability to pay distributions to the Combined Company's stockholders could be adversely affected.
Prologis OP is organized as a partnership for United States federal income tax purposes. Even though Prologis OP will not elect to be treated as an association taxable as a corporation, it may be taxed as a corporation if it is deemed to be a "publicly traded partnership." A publicly traded partnership is a partnership whose interests are traded on an established securities market or are considered readily tradable on a secondary market or the substantial equivalent thereof. Prologis believes and currently takes the position that Prologis OP should not be classified as a publicly traded partnership because interests in Prologis OP are not traded on an established securities market, and Prologis OP should satisfy certain safe harbors, which prevent a partnership's interests from being treated as readily tradable on an established securities market or substantial equivalent thereof. No assurance can be given, however, that the IRS would not assert that Prologis OP constitutes a publicly traded partnership or that facts and circumstances will not develop which could result in Prologis OP being treated as a publicly traded partnership. If the IRS were to assert successfully that Prologis OP is a publicly traded partnership, and substantially all of Prologis OP's gross income did not consist of specified types of passive income, Prologis OP would be treated as an association taxable as a corporation and would be subject to corporate tax at the entity level. In such event, the character of the Combined Company's assets and items of gross income would change and would result in a termination of the Combined Company's status as a REIT. In addition, the imposition of a corporate tax on Prologis OP would reduce the amount of cash available for distribution to the Combined Company's stockholders.
The Combined Company depends on key personnel for its future success, and the loss of key personnel or inability to attract and retain personnel could harm the Combined Company's business.
The members of the Prologis board and Prologis' executive officers will continue as the members of the board and executive management of the Combined Company. The future success of the Combined Company depends in large part on its ability to hire and retain a sufficient number of qualified personnel. The future success of the Combined Company also depends upon the service of the Combined Company's executive officers, who have extensive market knowledge and relationships and will exercise substantial influence over the Combined Company's operational, financing, acquisition and disposition activity. Among the reasons that they are important to the Combined Company's success is that each has a national or regional industry reputation that is expected to attract business and investment opportunities and assist the Combined Company in negotiations with lenders, existing and potential tenants and industry personnel.
Many of the Combined Company's other key executive personnel, particularly its senior managers, also have extensive experience and strong reputations in the industry. In particular, the extent and nature of the relationships that these individuals have developed with financial institutions and existing
47
and prospective customers is critically important to the success of the Combined Company's business. The loss of services of one or more members of the Combined Company's senior management team, or the Combined Company's inability to attract and retain highly qualified personnel, could adversely affect the Combined Company's business, diminish the Combined Company's investment opportunities and weaken its relationships with lenders, business partners, existing and prospective customers and industry personnel, which could materially and adversely affect the Combined Company.
Prologis and Liberty face other risks.
The foregoing risks are not exhaustive, and you should be aware that, following the mergers, the Combined Company will face various other risks, including those discussed in reports filed by Prologis and Liberty with the SEC. See "Where You Can Find More Information and Incorporation by Reference."
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
The statements in this document that are not historical facts are forward-looking statements within the meaning of Section 27A of the Securities Act, and Section 21E of the Exchange Act. These forward-looking statements are based on current expectations, estimates and projections about the industry and markets in which Prologis and Liberty operate as well as beliefs and assumptions of management of Prologis and management of Liberty. Such statements involve uncertainties that could significantly impact financial results of Prologis or Liberty. Words such as "expects," "anticipates," "intends," "plans," "believes," "seeks," "estimates," "may," "could," and "will" including variations of such words and similar expressions are intended to identify such forward-looking statements, which generally are not historical in nature. All statements that address operating performance, events or developments that Prologis or Liberty expect or anticipate will occur in the future—including statements relating to the potential benefits of the proposed mergers, the expected timing to complete the proposed mergers, rent and occupancy growth, development activity, contribution and disposition activity, general conditions in the geographic areas where Prologis and Liberty operate, debt, capital structure and financial position, Prologis' ability to form new co-investment ventures and the availability of capital in existing or new co-investment ventures—are forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions that are difficult to predict. Although Prologis and Liberty believe the expectations reflected in any forward-looking statements are based on reasonable assumptions, Prologis and Liberty can give no assurance that these expectations will be attained, and therefore actual outcomes and results may differ materially from what is expressed or forecasted in such forward-looking statements. Some of the factors that may affect outcomes and results include, but are not limited to:
- (i)
- national,
international, regional and local economic and political climates;
- (ii)
- changes
in global financial markets, interest rates and foreign currency exchange rates;
- (iii)
- increased
or unanticipated competition for each of Prologis' and Liberty's properties;
- (iv)
- risks
associated with acquisitions, dispositions and development of properties;
- (v)
- maintenance
of REIT status, tax structuring and changes in income tax laws and rates;
- (vi)
- availability
of financing and capital, the levels of debt that each of Prologis and Liberty maintain and their respective credit ratings;
- (vii)
- risks
related to each of Prologis' and Liberty's investments in their respective co-investment ventures, including their respective abilities to establish new
co-investment ventures;
- (viii)
- risks
of doing business internationally, including currency risks;
- (ix)
- environmental
uncertainties, including risks of natural disasters;
- (x)
- risks
associated with achieving expected revenue synergies or cost savings;
- (xi)
- risks
associated with the expected benefits of the mergers, the ability to consummate the mergers and the timing of the closing of the mergers and the possibility
that the mergers do not close;
- (xii)
- those
additional risks and factors discussed in the reports filed with the SEC by Prologis and Liberty from time to time, including those discussed under the
heading "Risk Factors" in their respective most recently filed reports on Form 10-K and Form 10-Q. Neither Prologis nor Liberty undertakes any duty to update any forward-looking
statements appearing in this document except as may be required by law; and
- (xiii)
- risks and uncertainties set forth in and incorporated by reference into this proxy statement/prospectus in the section entitled "Risk Factors" beginning on page 35.
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Prologis, Inc. and Prologis, L.P.
Pier 1, Bay 1
San Francisco, California 94111
(415) 394-9000
Prologis was formed in 1997 and is the global leader in logistics real estate with a focus on key markets in 19 countries on four continents. Prologis owns, manages and develops well-located, high-quality logistics facilities. Prologis' local teams actively manage its portfolio, which encompasses leasing and property management, capital deployment and opportunistic dispositions allowing it to recycle capital to self-fund its development and acquisition activities. The majority of Prologis' properties in the U.S. are wholly owned, while its properties outside the U.S. are generally held in co-investment ventures to mitigate Prologis' exposure to foreign currency movements.
Prologis commenced operations as a fully integrated real estate company in 1997, elected to be taxed as a REIT under the Code, and believes the current organization and method of operation will enable Prologis to maintain its status as a REIT.
Prologis OP was formed in 1997 and is the primary operating subsidiary of Prologis. As of September 30, 2019, Prologis owned an approximate 97.22% common general partnership interest in Prologis OP and 100% of the preferred units in Prologis OP. As the sole general partner of Prologis OP, Prologis has complete responsibility and discretion in the day-to-day management and control of Prologis OP. Prologis only holds a de minimis amount of assets outside of Prologis OP.
Prologis common stock is listed on the NYSE, trading under the symbol "PLD." Prologis' global headquarters are located at Pier 1, Bay 1, San Francisco, California 94111; its telephone number is (415) 394-9000. Prologis' other principal office locations are in Amsterdam, Denver, Luxembourg, Mexico City, Shanghai, Singapore and Tokyo. Prologis' website address is http://www.prologis.com. Information contained on Prologis' website is not and should not be deemed a part of this prospectus, the accompanying prospectus supplement or any other report or filing filed with the Securities and Exchange Commission.
Additional information about Prologis, Prologis OP and their subsidiaries is included in documents incorporated by reference into this proxy statement/prospectus. See "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
Prologis Merger Sub, a wholly owned subsidiary of Prologis, is a Maryland limited liability company organized on October 25, 2019 for the purpose of effecting the Topco merger. Prologis Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Prologis Merger Sub are located at Pier 1, Bay 1, San Francisco, California 94111.
Prologis OP Merger Sub, a wholly owned subsidiary of Prologis OP, is a Delaware limited liability company organized on October 24, 2019 for the purpose of effecting the partnership merger. Prologis OP Merger Sub has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of Prologis OP Merger Sub are located at Pier 1, Bay 1, San Francisco, California 94111.
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Liberty Property Trust and Liberty Property Limited Partnership
650 East Swedesford Road, Suite 400
Wayne, PA 19087
(610) 648-1700
Liberty, together with its subsidiaries, is a self-administered and self-managed Maryland real estate investment trust that is a leader in commercial real estate, serving customers in the United States and United Kingdom, through the development, acquisition, ownership and management of superior logistics, warehouse, manufacturing, and R&D facilities in key markets. As of September 30, 2019, Liberty owned and operated 499 industrial and 16 non-core properties totaling 96.9 million square feet, 22 properties under development, which when completed are expected to comprise 4.7 million square feet and 1,267 acres of developable land, substantially all of which is zoned for commercial use. As of September 30, 2019, Liberty also owned one property held for redevelopment or as "value-added," which are properties that are neither development nor redevelopment properties, but are properties that are either acquired but not stabilized or can be converted to a higher and better use. This property, when completed, is expected to comprise 55,000 square feet. Additionally, as of September 30, 2019, Liberty had an ownership interest, through unconsolidated joint ventures, in 48 industrial and 17 non-core properties totaling 14.8 million square feet, three properties under development, which when completed are expected to comprise 475,000 square feet, and a 219-room hotel, which is excluded from the square footage total, and 433 acres of developable land, substantially all of which is zoned for commercial use. Liberty also owned through unconsolidated joint ventures two properties held for redevelopment or as "value-added" which, when completed, are expected to comprise 85,000 square feet.
Liberty is structured as an umbrella partnership REIT under which substantially all of Liberty's current and future business is, and will be, conducted through the operating partnership, Liberty OP. As of September 30, 2019, Liberty owned approximately 97.8% of the outstanding equity interests in Liberty OP. As the sole general partner of Liberty OP, Liberty has the full, exclusive and complete responsibility for and discretion in its day-to-day management and control.
Liberty was formed as a Maryland real estate investment trust in 1994 and has elected to be treated as a REIT under the Code, and Liberty OP was formed as a Pennsylvania limited partnership in 1994. Liberty common shares are listed on the NYSE, trading under the symbol "LPT." The primary office of Liberty is located in Wayne, Pennsylvania at the address above. Liberty's website is located at www.libertyproperty.com. The information found on, or otherwise accessible through, Liberty's website is not incorporated into, and does not form a part of, this proxy statement/prospectus or any other report or document Liberty files with or furnishes to the SEC.
Additional information about Liberty, Liberty OP and their subsidiaries is included in documents incorporated by reference into this proxy statement/prospectus. See "Where You Can Find More Information and Incorporation by Reference" beginning on page 170.
New Liberty Holdco is a Maryland real estate investment trust formed on October 25, 2019 for the purpose of effecting the Topco merger. New Liberty Holdco has not conducted any activities other than those incidental to its formation and the matters contemplated by the merger agreement. The principal executive offices of New Liberty Holdco are located at 650 East Swedesford Road, Suite 400, Wayne, PA 19087.
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References to the Combined Company are to Prologis after the effective time of the Topco merger. The Combined Company will be named "Prologis, Inc." and will be a Maryland corporation. At the effective time of the Topco merger, all of the directors of Prologis immediately prior to the effective time of the Topco merger will comprise the board of directors of the Combined Company. The Combined Company is expected to have a pro forma enterprise value of approximately $79.5 billion and a total market capitalization of approximately $63 billion (each based on the closing price of Prologis common stock on September 30, 2019 of $85.22 per share). The Combined Company will have a footprint in high-demand metropolitan areas throughout the world.
The business of the Combined Company will be operated through Prologis OP and its subsidiaries. The Prologis parties will have the full, exclusive and complete responsibility for and discretion in the day-to-day management and control of Prologis OP.
The common stock of the Combined Company will continue to be listed on the NYSE, trading under the symbol "PLD."
The Combined Company's principal executive offices will continue to be located at Pier 1, Bay 1, San Francisco, California 94111, and its telephone number will be (415) 394-9000.
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This proxy statement/prospectus is being furnished in connection with the solicitation of proxies from Liberty shareholders for use at the Liberty special meeting. This proxy statement/prospectus and accompanying form of proxy are first being mailed to Liberty shareholders on or about December 23, 2019.
Date, Time, Place and Purpose of the Liberty Special Meeting
The special meeting of the Liberty shareholders will be held at the offices of Morgan, Lewis & Bockius LLP, 1701 Market Street, Philadelphia, Pennsylvania 19103 on January 30, 2020, commencing at 11:00 am, local time, to consider and vote upon the following matters:
- 1.
- a
proposal to approve the company mergers on the terms and conditions set forth in the merger agreement;
- 2.
- a
non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with
the company mergers and the other transactions contemplated by the merger agreement; and
- 3.
- a proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
Recommendation of the Liberty Board of Trustees
The Liberty board has unanimously approved the merger agreement, the company mergers and the other transactions contemplated thereby and unanimously recommends that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. For the reasons for this recommendation, see "The Mergers—Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers."
Liberty Record Date; Who Can Vote at the Liberty Special Meeting
Only holders of record of Liberty common shares at the close of business on December 20, 2019, the record date for the Liberty special meeting, are entitled to notice of, and to vote at, the Liberty special meeting and any adjournment or postponement of the Liberty special meeting. As of December 16, 2019, there were 157,597,864 Liberty common shares outstanding and entitled to vote at the Liberty special meeting, held by approximately 773 shareholders of record.
Each Liberty common share owned on Liberty's record date is entitled to one vote on each proposal at the Liberty special meeting.
Trustees and Officers of Liberty
At the close of business on December 16, 2019, trustees and executive officers of Liberty were entitled to vote 869,462 Liberty common shares, or approximately 0.6% of the Liberty common shares issued and outstanding on that date. Liberty currently expects that all Liberty trustees and executive officers will vote their Liberty common shares in favor of the proposal to approve the company mergers
53
on the terms and conditions set forth in the merger agreement as well as the other proposals to be considered at the Liberty special meeting, although none of them is contractually obligated to do so.
Approval of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of holders of at least two-thirds of the Liberty common shares outstanding and entitled to vote on such proposal.
Approval of the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement requires the affirmative vote of holders of Liberty common shares constituting a majority of all votes cast on such proposal.
Approval of the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement requires the affirmative vote of holders of Liberty common shares constituting a majority of all votes cast on such proposal.
Regardless of the number of Liberty common shares you own, your vote is important. Please complete, sign, date and promptly return the enclosed proxy card today or authorize a proxy to vote your shares by phone or Internet. If you do not vote, this will have the same effect as a vote AGAINST the proposal to approve the company mergers.
To constitute a quorum for the special meeting, there must be present at the special meeting in person or by proxy Liberty shareholders entitled to cast a majority of all the votes entitled to be cast. If you submit a proxy but fail to provide voting instructions or abstain on any of the proposals listed on the proxy card, your shares will be counted for purpose of determining whether a quorum is present at the Liberty special meeting. If your shares are held in "street name" by your broker or other nominee and you do not tell the nominee how to vote your shares, these shares will not be counted for purposes of determining whether a quorum is present for the transaction of business at the Liberty special meeting.
Abstentions and Broker Non-Votes
An abstention occurs when a shareholder attends a meeting, either in person or by proxy, but abstains from voting.
If your shares are held by a broker or other nominee on your behalf in "street name," your broker or other nominee will send you instructions as to how to provide voting instructions for your shares by proxy. Many brokerage firms and other nominees have a process for their customers to provide voting instructions by telephone or via the Internet, in addition to providing voting instructions by proxy card. In accordance with the rules of the NYSE, brokers and other nominees who hold common shares in "street name" for their customers do not have discretionary authority to vote the shares with respect to the proposal to approve the company mergers. Accordingly, if brokers or other nominees do not receive specific voting instructions from the beneficial owner of such shares, they may not vote such shares with respect to the proposal to approve the company mergers. Under such circumstance, a "broker non-vote" would arise.
Abstentions and broker non-votes will have the same effect as votes AGAINST the proposal to approve the company mergers and the other transactions contemplated by the merger agreement. Abstentions and broker non-votes will have no effect on (i) the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the mergers and the other transactions contemplated by the merger
54
agreement, or (ii) the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers.
Liberty shareholders may vote for or against the proposals submitted at the Liberty special meeting in person or by proxy. Liberty shareholders can authorize a proxy in the following ways:
- •
- Telephone or via the Internet. This proxy statement/prospectus is
accompanied by a proxy card with instructions for submitting voting instructions. Liberty shareholders may authorize a proxy by telephone by calling the toll-free number or via the Internet by
accessing the Internet address as specified on the enclosed proxy card. Shares will be voted as directed by Liberty shareholders in the same manner as if such Liberty shareholder had completed,
signed, dated and returned a proxy card, as described below.
- •
- Mail: Liberty shareholders may submit a proxy by completing, signing, dating and returning their proxy card or voting instruction card in the preaddressed postage-paid envelope provided.
Liberty shareholders should refer to their proxy cards or the information forwarded by their broker or other nominee to see which options are available to them.
The Internet and telephone proxy submission procedures are designed to authenticate shareholders and to allow them to confirm that their instructions have been properly recorded. If you submit a proxy over the Internet or by telephone, then you need not return a written proxy card or voting instruction card by mail. The Internet and telephone facilities available to record holders will close at 11:59 p.m. Eastern Time on January 29, 2020.
The method by which Liberty shareholders submit a proxy will in no way limit their right to vote at the Liberty special meeting if they later decide to attend the meeting and vote in person. If Liberty common shares are held in the name of a broker or other nominee, Liberty shareholders must obtain a proxy, executed in their favor, from the broker or other nominee, to be able to vote in person at the Liberty special meeting.
All Liberty common shares entitled to vote and represented by properly completed proxies received prior to the Liberty special meeting, and not revoked, will be voted at the Liberty special meeting as instructed on the proxies. If Liberty shareholders of record return properly executed proxies but do not indicate how their Liberty common shares should be voted on a proposal, the Liberty common shares represented by their properly executed proxy will be voted as the Liberty board recommends and therefore, FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement, FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement, and FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. If you do not provide voting instructions to your broker or other nominee, your Liberty common shares will be considered broker non-votes.
If Liberty shareholders hold Liberty common shares in an account of a broker or other nominee and they wish to vote such shares, they must return their voting instructions to the broker or other nominee.
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If Liberty shareholders hold Liberty common shares in an account of a broker or other nominee and attend the Liberty special meeting, they should bring a letter from their broker or other nominee identifying them as the beneficial owner of such Liberty common shares and, if they desire to vote in person at the Liberty special meeting, authorizing them to vote.
Revocation of Proxies or Voting Instructions
Liberty shareholders of record may change their vote or revoke their proxy at any time before it is exercised at the Liberty special meeting by:
- •
- submitting notice in writing to Liberty's Secretary at Liberty Property Trust, 650 East Swedesford Road, Suite 400, Wayne, PA 19087,
Attn: Secretary;
- •
- executing and delivering a later-dated proxy card or submitting a later-dated proxy by telephone or on the Internet; or
- •
- attending the special meeting and voting in person at the Liberty special meeting.
Attending the Liberty special meeting without voting will not revoke your proxy.
Liberty shareholders who hold Liberty common shares in an account of a broker or other nominee may revoke their voting instructions by following the instructions provided by their broker or other nominee.
Solicitation of Proxies; Payment of Solicitation Expenses
The solicitation of proxies from Liberty shareholders is made on behalf of the Liberty board. Liberty will pay the cost of soliciting proxies from Liberty shareholders. Liberty has engaged Innisfree to assist in the solicitation of proxies for the special meeting and Liberty estimates it will pay Innisfree a fee of approximately $25,000. Liberty has also agreed to reimburse Innisfree for reasonable expenses incurred in connection with the proxy solicitation. In addition to mailing proxy solicitation materials, Liberty's trustees and officers, and employees of Liberty may also solicit proxies in person, by telephone or by any other electronic means of communication deemed appropriate. No additional compensation will be paid to Liberty's trustees or officers, or to employees of Liberty for such services.
In accordance with the regulations of the SEC and NYSE, Liberty also will reimburse brokerage firms and other custodians, nominees and fiduciaries for their expenses incurred in sending proxies and proxy materials to beneficial owners of Liberty common shares.
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PROPOSALS SUBMITTED TO LIBERTY SHAREHOLDERS
(Proposal 1 on the Proxy Card)
Liberty shareholders are asked to consider and vote on a proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. For a summary and detailed information regarding this proposal, see the information about the company mergers and the merger agreement throughout this proxy statement/prospectus, including the information set forth in sections entitled "The Mergers" beginning on page 59 and "The Merger Agreement" beginning on page 112. A copy of the merger agreement is attached as Annex A to this proxy statement/prospectus.
Pursuant to the merger agreement, approval of this proposal is a condition to the consummation of the mergers. If this proposal is not approved, the mergers will not be completed.
Liberty is requesting that Liberty shareholders approve the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. Approval of this proposal requires the affirmative vote of at least two-thirds of the votes outstanding and entitled to be cast on such proposal.
Recommendation of the Liberty Board of Trustees
The Liberty board unanimously recommends that Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
(Proposal 2 on the Proxy Card)
This section sets forth information relating to the non-binding advisory vote on merger-related compensation that may be paid or become payable to certain Liberty named executive officers. Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Section 14A of the Exchange Act, Liberty is providing its shareholders with the opportunity to cast a non-binding advisory vote on the compensation that may be paid or become payable to Liberty's named executive officers, as determined in accordance with Item 402(t) of Regulation S-K, that is based upon or otherwise relates to the mergers and the other transactions contemplated by the merger agreement and arises from any form of arrangement or understanding, whether written or unwritten, between Liberty or the Combined Company and the named executive officers. Liberty therefore is asking its shareholders to vote on the adoption of the following resolution:
"RESOLVED, that the compensation that may be paid or become payable to Liberty Property Trust's named executive officers in connection with the company mergers and the agreements or understandings pursuant to which such compensation may be paid or become payable, in each case as disclosed pursuant to Item 402(t) of Regulation S-K in "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers—Information for Advisory Vote" is hereby APPROVED."
Vote Required
The vote regarding the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement is a vote separate and apart from the vote on the proposal to approve the company mergers. Because the vote regarding merger-related compensation is advisory only, it will not be binding on either Liberty or Prologis regardless of whether the mergers are completed. Accordingly, if the mergers are completed, the
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merger-related compensation will become payable in connection with the mergers and a qualifying termination of employment, subject only to the conditions applicable thereto, regardless of the outcome of this non-binding advisory vote.
Approval of the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the mergers and the other transactions contemplated by the merger agreement requires the affirmative vote of a majority of all votes cast on such proposal.
Recommendation of the Liberty Board of Trustees
The Liberty board unanimously recommends that Liberty shareholders vote FOR the non-binding advisory proposal to approve certain compensation that may be paid or become payable to certain named executive officers of Liberty in connection with the company mergers and the other transactions contemplated by the merger agreement.
(Proposal 3 on the Proxy Card)
The Liberty shareholders are being asked to approve a proposal that will give the chairman of the Liberty special meeting the authority to adjourn the Liberty special meeting one or more times to another date, time or place, to permit, among other things, further solicitation of proxies, if necessary, to obtain additional votes in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement if there are not sufficient votes at the time of the Liberty special meeting to approve such proposal.
If, at the Liberty special meeting, the number of Liberty common shares present or represented by proxy and voting for the approval of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement is insufficient to approve such proposal, Liberty intends to adjourn the Liberty special meeting to another place, date or time in order to enable the Liberty board to solicit additional proxies for approval of the proposal.
Liberty is asking Liberty shareholders to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. Approval of this proposal requires the affirmative vote of a majority of all votes cast on such proposal.
Recommendation of the Liberty Board of Trustees
The Liberty board unanimously recommends that Liberty shareholders vote FOR the proposal to approve one or more adjournments of the Liberty special meeting to another date, time or place, if necessary, to solicit additional proxies in favor of the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
No business may be brought before the Liberty special meeting except as set forth in this notice.
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The following is a description of the material aspects of the mergers. While Prologis and Liberty believe that the following description covers the material terms of the mergers, the description may not contain all of the information that is important to Prologis stockholders and Liberty shareholders. Prologis and Liberty encourage Prologis stockholders and Liberty shareholders to carefully read this entire proxy statement/prospectus, including the merger agreement and the other documents attached to this proxy statement/prospectus or incorporated herein by reference, for a more complete understanding of the mergers.
The Liberty board has unanimously (i) determined and declared that the company mergers are advisable and in the best interests of Liberty and its shareholders, (ii) approved each of the company mergers, and (iii) approved the merger agreement. Based on, among other factors, the reasons described below in the section "—Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers," the Liberty board believes that the merger consideration to be received by holders of Liberty common shares is fair, from a financial point of view, to such holders. Pursuant to the merger agreement, (i) Liberty Merger Sub will merge with and into Liberty, with Liberty continuing as the surviving entity and an indirect wholly owned subsidiary of New Liberty Holdco, (ii) thereafter, New Liberty Holdco will merge with and into Prologis Merger Sub, with Prologis Merger Sub continuing as the surviving entity and remaining a wholly owned subsidiary of Prologis, (iii) thereafter, Prologis, its applicable subsidiaries and Prologis Merger Sub will cause all of the outstanding equity interests of Liberty to be contributed to Prologis OP in exchange for the issuance by Prologis OP of Prologis OP common units to other subsidiaries of Prologis, and (iv) thereafter, Prologis OP Merger Sub will merge with and into Liberty OP, with Liberty OP continuing as the surviving entity and a wholly owned subsidiary of Prologis OP. Liberty shareholders will receive the merger consideration described below under "The Merger Agreement—Merger Consideration; Effects of the Mergers."
Over the years, in the ordinary course of business, and from time to time, the Liberty board and management team have evaluated and considered a variety of financial and strategic opportunities for Liberty as part of its long-term strategy to enhance value for Liberty shareholders, including potential acquisitions, divestitures, business combinations and other transactions. Among other things, this included a yearly strategy session of the board at which such alternatives were considered.
In the fall of 2017, Hamid R. Moghadam, the Chief Executive Officer of Prologis, and William P. Hankowsky, Liberty's Chairman of the Board, President and Chief Executive Officer, had an informal meeting at which they discussed their respective companies. At the meeting and in an email communication he sent soon thereafter, Mr. Moghadam expressed interest in exploring a potential strategic transaction between the companies. While general price ranges and structure were discussed, the parties did not develop a specific framework of deal terms. Mr. Hankowsky informed the Liberty board of these discussions and the Liberty board thereafter discussed Prologis' interest in exploring a potential transaction at a regularly scheduled meeting in which it also received input and advice from financial and legal advisors. Following these discussions, the consensus was not to pursue a transaction at that time, and Mr. Hankowsky communicated this to Mr. Moghadam. As a result, no further discussions occurred, nor was any non-disclosure agreement or any other transaction-related agreement entered into between the parties.
Over the next two years, Mr. Moghadam and Mr. Hankowsky spoke informally on several occasions, during which conversations Mr. Moghadam reiterated Prologis' interest in exploring a strategic transaction between the companies. The parties did not discuss specific terms. Also during this
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period, the Liberty board received periodic input and advice from its financial advisors, Goldman Sachs and Citi, regarding the current market environment in the industrial REIT sector and Liberty management's strategic plan as it was updated from time to time.
On September 13, 2019, Mr. Moghadam contacted a representative of Goldman Sachs, which was generally known to have an investment banking relationship with Liberty, to discuss Prologis' interest in pursuing a potential strategic transaction between the companies. During this discussion, Mr. Moghadam stated that Prologis would be interested in a stock-for-stock transaction with Liberty, valuing Liberty common shares at $60 per share. Although not discussed specifically, this implied an exchange ratio of 0.71 shares of Prologis common stock for each Liberty common share based on Prologis' closing stock price of $84.04 on September 12, 2019 and an approximately 15% pro forma ownership of the Combined Company for Liberty's shareholders, with an implied premium of 16.8% to Liberty's share price based on the closing price of Liberty common shares of $51.36 on September 12, 2019. Mr. Moghadam indicated that Prologis would be prepared to move forward with pursuing a transaction structured on terms similar to Prologis' August 2018 acquisition of DCT, including among other terms a two-tiered termination fee that would provide for a lower termination fee if, subject to certain other requirements, the merger agreement were to be terminated within a specified number of days after signing.
Following this conversation, the representative of Goldman Sachs informed Mr. Hankowsky of Mr. Moghadam's call, and arrangements were made for Mr. Hankowsky and Mr. Moghadam to speak the following week. Thereafter, Mr. Hankowsky informed the Lead Independent Trustee of the Liberty board that Mr. Moghadam had contacted Goldman Sachs and conveyed to him the general terms that Mr. Moghadam had articulated.
On September 18, 2019, Mr. Hankowsky and Mr. Moghadam spoke directly by telephone. During this discussion, Mr. Moghadam repeated the same offer details he had discussed with representatives of Goldman Sachs, reiterating the proposal of a stock-for-stock transaction valuing Liberty common shares at $60 per share, resulting in an implied exchange ratio of 0.69 shares of Prologis common stock for each Liberty common share based on Prologis' closing stock price of $86.44 on September 17, 2019, which would result in an implied premium of 16.9% to Liberty's share price based on the closing price of Liberty common shares of $51.34 on September 17, 2019. Mr. Moghadam and Mr. Hankowsky also discussed Mr. Moghadam's expectation that the Prologis board and management team would manage the post-closing operations of the Combined Company, with the potential for some Liberty employees to continue working for the Combined Company. Mr. Moghadam also indicated that Prologis would not be offering Liberty representation on the Combined Company's board of directors. Mr. Hankowsky responded that he would report this proposal to the Liberty board.
On September 20, 2019, the Liberty board convened telephonically to discuss Prologis' offer. The Liberty board was conceptually supportive of moving forward with preliminary discussions with Prologis regarding a transaction that valued Liberty common shares at $60 per share, and agreed to consider the matter further at its upcoming, regularly scheduled, in-person meeting on September 26, 2019. In preparation for that meeting, the Liberty board requested that, before engaging further with Prologis, representatives of Goldman Sachs and Citi contact "Party A," an investment firm active in the industrial property sector, to obtain by September 25, 2019 Party A's view on Liberty's valuation and to gauge its interest in a possible acquisition of Liberty. Promptly following the September 20, 2019 meeting, representatives of Goldman Sachs and Citi contacted representatives of Party A by telephone and requested that if Party A was potentially interested in an acquisition of Liberty, it provide a preliminary valuation of Liberty by September 25, 2019. On September 25, 2019, a representative of Party A called a representative from Goldman Sachs and, while not submitting a formal offer, indicated that any offer by Party A would likely be at the low end of a 10-15% premium range over the price of Liberty common shares, which closed at $50.93 on September 24, 2019.
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On September 26, 2019, the Liberty board held its regularly scheduled meeting. Members of Liberty's senior management and representatives from Goldman Sachs, Citi and Morgan Lewis, outside counsel to Liberty, were in attendance and the Liberty board discussed Prologis' offer. At this meeting, representatives of Goldman Sachs and Citi reviewed with the Liberty board, among other things, certain operating and financial characteristics of Prologis' business, a comparison of Liberty's and Prologis' portfolios, and preliminary financial analyses of a proposed combination with Prologis based on Prologis' proposed exchange ratio. The Liberty board also discussed with its advisors other transaction considerations, including governance and management, deal certainty, the proposed two-tiered termination fee and other non-solicitation and fiduciary out mechanisms. Representatives of Goldman Sachs and Citi also discussed their communications with Party A and described Party A's indicated range of a possible valuation. Representatives of Morgan Lewis provided an overview of the Liberty board's duties as trustees under Maryland law. During the meeting, the Liberty board discussed these matters and also discussed and considered the following alternatives to pursuing the potential stock-for-stock transaction with and as proposed by Prologis: (i) continuing to pursue Liberty's existing business strategy as an independent, stand-alone company, (ii) the viability of pursuing another strategic combination and (iii) exploring possible cash sale transactions, including with Party A. Following discussion, the Liberty board authorized senior management and Goldman Sachs and Citi to continue engaging in dialogue with Prologis regarding the potential transaction, and to pursue a transaction in accordance with the structure and terms discussed at the meeting. The Liberty board discussed and agreed that if an agreement in principle on the terms of such a transaction could be reached, an appropriate period of exclusivity would likely be established in which the parties would seek to enter into a definitive agreement.
On September 27, 2019, representatives of Goldman Sachs and Citi discussed the contemplated transaction terms with Mr. Moghadam. In these conversations, Mr. Moghadam indicated on a preliminary, non-binding basis that Prologis was willing to pursue entry into a transaction with Liberty structured as a stock-for-stock merger of the two companies at a 0.7127 exchange ratio, which implied an approximately 19.7% premium to Liberty's share price based on the closing price of Liberty common shares of $51.38 on September 26, 2019, and an approximately 15% pro forma ownership of Liberty's shareholders in the Combined Company. As instructed by the Liberty board, representatives of Goldman Sachs and Citi indicated that their expectation was that the transaction would include, among other things, a no-shop provision with a fiduciary out and a two-tiered termination fee. Mr. Moghadam stated that the other terms of Prologis' proposal were that Liberty would not receive any seats on the Combined Company's board of directors and that the definitive merger agreement would contain customary terms for a public company transaction of this nature, in line with Prologis' recent acquisition of DCT.
To facilitate confidential discussions and the sharing of confidential information between the parties, the parties thereafter negotiated the terms of a non-disclosure agreement, which Prologis requested include an exclusivity provision in consideration of Prologis spending significant resources to complete due diligence and pursue the proposed transaction. On September 30, 2019, Liberty and Prologis entered into a non-disclosure agreement that included an exclusivity provision through October 29, 2019 (during which time Liberty was prohibited from seeking out other strategic/sale transactions), as well as customary mutual standstill and confidentiality restrictions. Subsequently, on the same day, Liberty opened a virtual data room with due diligence information for Prologis, and on October 4, 2019 Prologis opened its virtual data room with due diligence information for Liberty.
On October 1, 2019, representatives of Prologis and Liberty and their respective financial advisors (BofA Securities and Morgan Stanley, financial advisors to Prologis, and Goldman Sachs and Citi, financial advisors to Liberty), participated in several calls during which the parties discussed the due diligence process and the process for negotiating the terms of a definitive merger agreement.
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On October 4 and October 5, 2019, respectively, representatives of Citi and Goldman Sachs provided draft engagement letters to Liberty for the engagement of the advisors specifically as to a strategic transaction such as that proposed by Prologis. They also provided relationship disclosure letters describing certain relationships with Liberty and Prologis. The engagement letters were thereafter executed on October 8 and October 9, 2019, respectively.
On October 8, 2019, Wachtell Lipton, counsel to Prologis, sent to Morgan Lewis a draft merger agreement, which contemplated Liberty and Liberty OP merging directly into Prologis and Prologis OP, respectively, with Prologis and Prologis OP each surviving, and included generally reciprocal representations and warranties and customary interim operating covenants and closing conditions, as well as non-solicitation and fiduciary out provisions and a two-tier termination fee structure, all of which were generally consistent with those contained in the merger agreement between Prologis and DCT. From October 8, 2019 through October 15, 2019, Liberty and its legal and financial advisors reviewed the draft merger agreement and the terms thereof.
On October 15, 2019, Morgan Lewis provided Wachtell Lipton with initial comments on the draft merger agreement on behalf of Liberty. The revised draft merger agreement provided for, among other things, certain qualifications of representations and warranties and exceptions to interim operating covenants and certain changes to the non-solicitation and fiduciary out provisions, closing conditions and the benefits and employment matters and tax matters provisions.
On October 16-17, 2019, numerous telephonic meetings were held between Liberty and Prologis to discuss various due diligence matters, including Liberty's planned acquisitions, dispositions and development pipeline; Liberty's joint ventures; employee compensation; share vesting schedules; and Prologis' projections and the impact of the transaction on the Combined Company. From October 16 through October 25, 2019, there were also several telephonic discussions between Liberty and Prologis regarding employee severance and retention arrangements, management fees, tax matters, and other matters relating to the transaction and due diligence.
On October 17, 2019, representatives of Morgan Lewis and Wachtell Lipton met telephonically to discuss certain open issues with respect to the revised draft of the merger agreement. Also between October 17, 2019 and October 22, 2019, representatives of Morgan Lewis and Wachtell Lipton discussed Prologis' proposed revision to the structure for the transaction that would cause it to be consummated through a series of steps.
On October 18, 2019, Morgan Lewis received a revised draft of the proposed merger agreement from Wachtell Lipton. Also on October 18, 2019, Morgan Lewis sent an initial draft of Liberty's disclosure schedules to the proposed merger agreement to Wachtell Lipton.
On October 22, 2019, Mr. Moghadam contacted Mr. Hankowsky and informed him that, in light of the recent relative trading performance of Prologis common stock and Liberty common shares, Prologis was no longer willing to enter into a transaction at the exchange ratio of 0.7127. Mr. Moghadam indicated that Prologis remained interested in a transaction, but at an exchange ratio of 0.6739, which implied an approximately 21.7% premium to Liberty's share price based on the closing price of Liberty common shares of $50.29 on October 22, 2019 and an approximately 14% pro forma ownership of Liberty shareholders in the Combined Company. Mr. Moghadam also indicated to Mr. Hankowsky that it was important for Prologis to consummate the proposed transaction through a series of steps that were being discussed between the advisors.
On October 23, 2019, following discussions with representatives of Liberty's financial and legal advisors and members of the Liberty board, Mr. Hankowsky contacted Mr. Moghadam to discuss preliminary views on the proposed reduced exchange ratio. Mr. Hankowsky communicated that a deal with an exchange ratio within a range of 0.69 - 0.71 would likely be acceptable to Liberty.
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Mr. Moghadam declined the Liberty counter offer and communicated that Prologis would be willing to proceed at an exchange ratio of 0.674.
On October 23, 2019, the Liberty board met telephonically to discuss the reduced exchange ratio, with representatives of Goldman Sachs, Citi and Morgan Lewis participating. At the meeting, the Liberty board, with the assistance of Liberty's financial and legal advisors, discussed and evaluated the revised offer from Prologis. Among other considerations, the Liberty board discussed and evaluated the stated rationale of the revised offer and the potential underlying reasons for the recent trading performance. The Liberty board considered the prospects of Liberty as a stand-alone entity and the benefits and risks of a combination with Prologis. Following a discussion regarding the revised Prologis offer, the Liberty board authorized the Liberty management team to continue pursuing a transaction with Prologis at an exchange ratio of no lower than 0.674, so long as it received assurances from Prologis that it would move expeditiously towards an agreed transaction without further revision to the proposed material terms.
After the meeting, representatives from Citi and Goldman Sachs called Mr. Moghadam to discuss raising the exchange ratio and the potential for including an exchange ratio collar, which would provide some protection to Liberty's shareholders in the event Prologis' stock price declined. Mr. Moghadam declined the proposal to include a collar structure, but agreed to move forward based on an 0.675 exchange ratio, which implied an approximately 23.4% premium to Liberty's share price based on the closing price of Liberty common shares of $50.26 on October 23, 2019 and an approximately 14% pro forma ownership of Liberty shareholders in the Combined Company. Mr. Moghadam also reiterated Prologis' strong desire to effect the transaction through a revised structure of the proposed mergers, which had to date been discussed by the parties and their advisors, but not accepted by Liberty. Subsequently on that same day, Mr. Hankowsky telephoned Mr. Moghadam to confirm Liberty's willingness to proceed on these proposed terms.
Later on October 23, 2019, Wachtell Lipton and Morgan Lewis continued to discuss the draft merger agreement, including changes necessary to reflect Prologis' proposed revised structure for the transaction. Thereafter, also on October 23, 2019, Morgan Lewis sent Wachtell Lipton a revised draft of the proposed merger agreement.
On October 24, 2019, the Liberty board held a telephonic special meeting. Representatives of Citi and Goldman Sachs and Morgan Lewis were also in attendance. At the meeting, representatives of Morgan Lewis discussed with the Liberty board the duties of a trustee under Maryland law and provided a summary of the current proposed draft merger agreement. As part of the discussions, representatives of Morgan Lewis walked the Liberty board through, among other things, the structure of the transaction, the general nature of the representations and warranties, interim operating covenants, other covenants and closing conditions contained in the merger agreement, the two-tier termination fee structure, the events that would trigger the payment of a termination fee and/or expense reimbursement, the terms of the non-solicitation covenant and related deal protection provisions in the merger agreement. Liberty's management also reported on the due diligence they had conducted into the affairs of Prologis, from a legal, tax and financial standpoint. The Liberty board asked questions of representatives of Morgan Lewis regarding the current proposed draft merger agreement and discussed various terms of the agreement.
Representatives of Goldman Sachs and Citi discussed their preliminary financial analyses of the proposed transaction with the Liberty board, noting that their analyses were based on certain internal financial analyses and forecasts for Liberty and for Prologis on a standalone basis and on a pro forma basis giving effect to the transaction, in each case as prepared by management of Liberty (based in part, in the case of the forecasts for Prologis on a standalone basis and on a pro forma basis giving effect to the transaction, on certain information communicated by the management of Prologis relating to, among other things, Prologis' internal financial analyses, certain potential operating synergies and
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Prologis' expectations as to financing arrangements) and approved by Liberty for use by Goldman Sachs and Citi, including certain operating synergies projected by management of Liberty to result from the transaction, as approved by Liberty for use by Goldman Sachs and Citi.
The Liberty board discussed its financial advisors' preliminary financial analyses in detail and asked questions of representatives of Goldman Sachs and Citi. The Liberty board discussed the relative trading of the two companies since the Liberty board's initial meeting to discuss Prologis' proposal and the price and significant premium implied by the proposed exchange ratio. After also reviewing the legal summary of the current proposed draft merger agreement from Morgan Lewis, the Liberty board determined that Liberty should continue to proceed with working toward finalizing the merger agreement and other aspects of the transaction.
Wachtell Lipton sent Morgan Lewis a revised draft of the proposed merger agreement on October 24, 2019. Subsequently, on the same day, Wachtell Lipton circulated to Morgan Lewis an initial draft of Prologis' disclosure schedules to the merger agreement.
Representatives of Wachtell Lipton and Morgan Lewis had a telephonic discussion regarding the revised merger agreement on October 25, 2019. Subsequently, Morgan Lewis sent Wachtell Lipton a revised draft of the merger agreement on October 25, 2019. Later that night and following a telephonic discussion between representatives of Wachtell Lipton and Morgan Lewis regarding open issues in the merger agreement, Wachtell Lipton circulated a further revised draft of the merger agreement to Morgan Lewis.
On October 26, 2019, representatives of Wachtell Lipton and Morgan Lewis engaged in multiple telephonic discussions and exchanged several drafts to finalize the merger agreement and the disclosure schedules. On the evening of October 26, 2019, the proposed final draft of the merger agreement was then circulated to all parties.
On October 27, 2019, representatives of Wachtell Lipton and Morgan Lewis finalized the terms of Liberty's and Prologis' disclosure schedules and the exhibits to the merger agreement.
Also on October 27, 2019, the Liberty board held a telephonic special meeting with members of senior management of Liberty and representatives of Morgan Lewis, Goldman Sachs and Citi. Representatives of Goldman Sachs and Citi reviewed with the Liberty board their financial analyses of the merger consideration. Goldman Sachs then delivered to the Liberty board an oral opinion, which was confirmed by delivery of a written opinion dated October 27, 2019, to the effect that, as of that date and based upon and subject to the factors and assumptions set forth in such written opinion, the exchange ratio pursuant to the merger agreement was fair, from a financial point of view, to the holders (other than Prologis and its affiliates) of Liberty common shares. Citi delivered to the Liberty board an oral opinion, which was confirmed by delivery of a written opinion dated October 27, 2019, to the effect that, as of such date and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken, the exchange ratio to be paid to the holders of Liberty common shares pursuant to the merger agreement was fair, from a financial point of view, to such holders. Representatives of Morgan Lewis summarized the final terms of the proposed merger agreement. The Liberty board discussed the value and significant premium provided by the exchange ratio. Following these presentations and discussions, and other discussions by the Liberty board concerning, among other things, the matters described below under "The Mergers—Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers," the Liberty board, by a unanimous vote of all trustees (who also constituted the trustees of New Liberty Holdco), then (i) approved, determined and declared advisable the merger agreement and the transactions contemplated thereby, including the mergers, (ii) authorized and approved the execution, delivery and performance of the merger agreement and the mergers and declared that the mergers are advisable and in the best interests of Liberty, New Liberty Holdco and Liberty OP, as applicable, (iii) directed that the company mergers be submitted for consideration at a meeting of the Liberty
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shareholders, (iv) resolved to recommend that the shareholders of Liberty vote in favor of the company mergers and approved the inclusion of such recommendation in the proxy statement to be sent to shareholders in respect of the mergers.
Following the Liberty board meeting, Mr. Hankowsky contacted Mr. Moghadam to advise Mr. Moghadam that the Liberty board had approved the transaction.
Also on October 27, 2019, the Prologis board held a special meeting with members of Prologis' senior management in attendance. Members of Prologis' senior management reviewed with the Prologis board the results of its due diligence investigation of Liberty, the final terms and conditions of the proposed merger agreement, the duties of the Prologis board under Maryland law, required approvals for the transaction and the financial implications to Prologis of the mergers. Following these discussions, the Prologis board, by a unanimous vote of all directors, then approved the merger agreement and the transactions contemplated thereby, including the mergers and the issuances of Prologis common stock and Prologis OP units in connection therewith. The Prologis board declared the merger agreement and the transactions contemplated thereby, including the mergers and the issuance of Prologis common stock and Prologis OP units in connection therewith, to be advisable and in the best interests of Prologis and its stockholders.
On the evening of October 27, 2019, Liberty and Prologis executed and delivered the merger agreement and issued a joint press release publicly announcing the mergers and execution of the merger agreement.
Recommendation of the Liberty Board of Trustees and its Reasons for the Mergers
In evaluating the merger agreement and the transactions contemplated thereby, including the mergers, the Liberty board consulted with Liberty's senior management and its outside legal counsel and financial advisors and unanimously determined and declared that the merger agreement, the mergers and the other transactions contemplated by the merger agreement are advisable and in the best interests of Liberty and its shareholders. The Liberty board has unanimously approved the mergers and the other transactions contemplated by the merger agreement, has unanimously approved the merger agreement and unanimously recommends that the Liberty shareholders vote to approve the company mergers on the terms and conditions set forth in the merger agreement.
In determining that the mergers are advisable and in the best interests of Liberty and its shareholders, in authorizing and approving the mergers on the terms set forth in the merger agreement, in approving the merger agreement and in recommending that Liberty shareholders vote to approve the company mergers on the terms set forth in the merger agreement, the Liberty board considered various factors that it viewed as supporting its decisions, including the following material factors:
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- the receipt of Prologis common stock as merger consideration provides Liberty shareholders with the opportunity to have an ownership stake in
the Combined Company, which is expected to provide a number of significant potential strategic opportunities and benefits, including the following:
- •
- the mergers combine two, complementary portfolios with similar business strategies in top United States markets, allowing the Combined Company to capture immediate and substantial cost synergies in the form of corporate general and administrative cost savings, operating cost savings, leveraging of Prologis' investments in technology, reductions in interest and lease expenses, as well as long-term revenue synergies from operating performance and development value creation, all of which will ultimately drive increases to net operating income;
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- •
- the Combined Company will operate on a platform with deeper market knowledge and relationships, more flexibility and access to
better information, resulting in the ability to serve customers better and generate greater revenue;
- •
- the Combined Company will be among the largest publicly traded United States REITs (and the largest publicly traded industrial
REIT) based on equity market capitalization, and its meaningful scale and investment grade rating are expected to allow it to capitalize on corporate and operating cost efficiencies and to gain more
efficient access to less expensive capital, giving it significant competitive advantages over its smaller, less efficient peers; and
- •
- the Combined Company's portfolio will be balanced from a geographic and customer perspective in strategic markets and submarkets,
which, together with the scale of the combined operations, is expected to result in substantial benefits for the Combined Company and its stakeholders;
- •
- the information with respect to the business, operating results and financial condition of Prologis, on both historical and prospective bases,
including Prologis' stable operating performance, the quality, breadth and experience of Prologis' senior management team, and the complementary markets served by the two companies, as well as the
Liberty board's knowledge of the current and prospective environment in which the two companies operate, including industry, economic and market conditions, taking into account the results of
Liberty's due diligence review of Prologis (including with respect to operational, legal, financial, environmental and tax matters);
- •
- current market and industry trends, Liberty's future prospects as an independent company and the challenges and risks that could affect
Liberty's future performance;
- •
- the merger consideration had an implied value per Liberty common share of $61.33, which represented a premium of approximately 21.3% to
Liberty's share price, based on closing prices on October 25, 2019, the last trading day prior to the public announcement of the merger agreement;
- •
- the exchange ratio is fixed and will not fluctuate as a result of changes in the market price of Liberty common shares or Prologis common
stock, which provides certainty as to the pro forma percentage ownership of the Combined Company that the Liberty shareholders would receive in the company mergers;
- •
- the merger consideration, consisting of Prologis common stock, which will be listed for trading on the NYSE, continues to provide liquidity for
Liberty shareholders desiring to liquidate their investment after the company mergers;
- •
- the opinion of Goldman Sachs and the opinion of Citi, each dated October 27, 2019, to the Liberty board as to the fairness, from a
financial point of view and as of the date of the applicable opinion, to holders of Liberty common shares, of the exchange ratio provided for in the merger agreement, as more fully described below in
the section entitled "The Mergers—Opinions of Liberty's Financial Advisors";
- •
- the expectation that, for Liberty shareholders that are United States holders, the company mergers will generally qualify as a tax-free
transaction for United States federal income tax purposes;
- •
- that the company mergers are subject to approval by holders of at least two-thirds of the outstanding Liberty common shares entitled to vote;
- •
- that the merger agreement permits Liberty to continue to pay its shareholders regular quarterly dividends of up to $0.41 per Liberty common share until consummation of the mergers;
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- •
- that the merger agreement provides Liberty with the ability, under certain specified circumstances, to consider an unsolicited acquisition
proposal if the Liberty board determines such proposal constitutes or would reasonably be expected to lead to a superior proposal and concludes in good faith that failure to take such action would be
inconsistent with their duties as trustees under applicable law, and the merger agreement provides the Liberty board with the ability, under certain specified circumstances, to make a change in
recommendation or to terminate the merger agreement in order to enter into an agreement with respect to a superior proposal upon payment of a termination fee, in an amount equal to either
$150 million or $325 million, depending on, among other things, when the termination occurs and whether the person making the superior proposal is a qualified bidder, which the Liberty
board concluded was reasonable in the context of termination fees payable in comparable transactions and in light of the overall structure of the transaction and terms of the merger agreement;
- •
- that the merger agreement provides Liberty with sufficient operating flexibility between the signing of the merger agreement and the completion
of the company mergers for Liberty to conduct its business in the ordinary course of business consistent with past practice;
- •
- the commitment on the part of each of Liberty and Prologis to complete the company mergers as reflected in their respective obligations under
the terms of the merger agreement and the absence of any material required government consents, and the likelihood that the company mergers will be completed on a timely basis;
- •
- the other terms of the merger agreement, including representations, warranties and covenants of the parties, as well as the conditions to their
respective obligations under the merger agreement;
- •
- that the company mergers would be in the best interests of Liberty shareholders in light of the expected long-term strategic and financial
benefits associated with the combination of Liberty and Prologis, the ability of Liberty shareholders to continue to benefit from the prospects of the Combined Company, the overall terms of the merger
agreement and transactions contemplated thereby and the timing, likelihood and risks of completing alternative transactions, including the business, competition, industry and market risks that would
apply to Liberty and the company mergers, as compared to potential alternatives, including the continued independent operation of Liberty and Liberty's prospects for a merger or sale transaction with
a company other than Prologis and the potential terms for such other transactions as more particularly described in this proxy statement/prospectus under "The Mergers—Background of the
Mergers"; and
- •
- the course of negotiations with Prologis, which were conducted at arm's length and during which the Liberty board was advised by its legal and financial advisors, including the fact that the negotiations resulted in provisions allowing an interested party an opportunity to make an alternative proposal during a specified period, which if accepted by Liberty under specified circumstances, would result in a termination fee of $150 million (instead of $325 million) being paid to Prologis.
The Liberty board also considered a variety of risks and other potentially negative factors in considering the merger agreement, the mergers and the other transactions contemplated by the merger agreement, including the following material factors:
- •
- that, following the completion of the company mergers, Liberty would no longer exist as an independent public company and Liberty shareholders
would be able to participate in any future earnings growth Liberty might have achieved solely through their ownership of Prologis common stock;
- •
- that, because the merger consideration is a fixed exchange ratio of shares of Prologis common stock, Liberty shareholders could be adversely affected by a decline in the market price of Prologis common stock and the fact that the merger agreement does not provide for any
67
- •
- the risk that the cost savings, operational synergies and other benefits to the Liberty shareholders expected to result from the company
mergers might not be fully realized or not realized at all, including as a result of possible changes in the real estate market or the industrial real estate business affecting the markets in which
the Combined Company will operate or as a result of potential difficulties integrating the two companies and their respective operations;
- •
- the risk that a different strategic alternative potentially could be more beneficial to Liberty shareholders than the proposed company mergers;
- •
- that, under the terms of the merger agreement, Liberty must pay to Prologis a termination fee in an amount of either $150 million or
$325 million, depending on, among other things, when the termination occurs and whether a person making a superior proposal is a qualified bidder, if the merger agreement is terminated under
certain circumstances, which might discourage or deter other parties from proposing an alternative transaction that may be more advantageous to Liberty shareholders;
- •
- that, under the terms of the merger agreement, if Liberty shareholders vote on, but do not approve, the company mergers, and the merger
agreement is thereafter terminated, Liberty may be required to reimburse Prologis' transaction expenses up to an amount equal to $15 million, regardless of whether an alternative transaction is
available to Liberty;
- •
- that the terms of the merger agreement place limitations on the ability of Liberty to solicit, initiate, knowingly encourage or knowingly
facilitate any inquiries or the making of any proposal or offer by or with a third party with respect to a competing transaction and to furnish information to, or enter into discussions with, a third
party interested in pursuing an alternative strategic transaction;
- •
- the risk that one or more of the conditions to the parties' obligations to complete the company mergers will not be satisfied or waived;
- •
- the risk of diverting management focus and resources from operational matters and other strategic opportunities as well as causing significant
distractions for Liberty's employees while working to implement the company mergers, which may result in harm to Liberty's business if the mergers do not close;
- •
- the possibility that the mergers may not be completed, or may be unduly delayed, for reasons beyond the control of Liberty or Prologis,
including because Liberty shareholders may not approve the company mergers and the other transactions contemplated by the merger agreement;
- •
- that provisions in the merger agreement placing certain restrictions on the operation of Liberty's business during the period between the
signing of the merger agreement and consummation of the Topco merger may delay or prevent Liberty from undertaking business opportunities that may arise or other actions it would otherwise take with
respect to its operations absent the pending completion of the company mergers;
- •
- that Liberty and Prologis may be obligated to complete the mergers without having obtained appropriate consents, approvals or waivers from the counterparties under certain of Liberty's contracts that require consent or approval to consummate the mergers, and the risk that such consummation could trigger the termination of, or default under, such contracts or the exercise of rights by the counterparties under such contracts;
adjustment of the merger consideration if the market price of Prologis common stock declines and does not provide a price-based termination right or other similar protection in favor of Liberty or Liberty shareholders;
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- •
- that certain of Liberty's trustees and named executive officers have certain interests in the company mergers that might be different from the
interests of Liberty shareholders generally as described under the section entitled "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers";
- •
- the expenses to be incurred in connection with the merger agreement, the company mergers and the other transactions contemplated thereby; and
- •
- the types and nature of the risks described under the section entitled "Risk Factors."
This discussion of the foregoing information and material factors considered by the Liberty board in reaching its conclusions and recommendations is not intended to be exhaustive and is not provided in any specific order or ranking. In view of the wide variety of factors considered by the Liberty board in evaluating the merger agreement and the transactions contemplated by the merger agreement, including the company mergers, and the complexity of these matters, the Liberty board did not find it practicable to, and did not attempt to, quantify, rank or otherwise assign relative weight to those factors. In addition, different members of the Liberty board may have given different weight to different factors. The Liberty board did not reach any specific conclusion with respect to any of the factors considered and instead conducted an overall review of such factors and determined that, in the aggregate, the potential benefits considered outweighed the potential risks or possible negative consequences of approving the merger agreement, the mergers and the other transactions contemplated by the merger agreement.
This explanation of the reasoning of the Liberty board and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed in the section entitled "Cautionary Statement Concerning Forward-Looking Statements."
After careful consideration, for the reasons set forth above, the Liberty board unanimously recommends that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement.
Prologis' Reasons for the Mergers
After careful consideration, the Prologis board, by a unanimous vote of all directors, approved the merger agreement and the mergers. In the course of evaluating the merger agreement and the mergers, the Prologis board consulted with Prologis' management and Prologis' outside legal and financial advisors and considered a number of factors that the Prologis board believed supported its decision to approve the merger agreement, including the following material factors:
- •
- its belief that Liberty's logistics assets are highly complementary to Prologis' U.S. portfolio and that the mergers will increase Prologis'
holdings and growth potential in several key markets, including by deepening Prologis' presence in target markets such as Lehigh Valley, Chicago, Houston, Central PA, New Jersey and Southern
California;
- •
- its expectation that the strategic fit between the Prologis and Liberty portfolios will allow Prologis to capture cost and long-term revenue
synergies, including approximately $120 million from immediate corporate general and administrative cost savings, operating leverage, lower interest expense and lease adjustments;
- •
- its belief that the mergers will result in $60 million of annual revenue synergies and development value creation;
- •
- its expectation that the mergers will strengthen Prologis' customer roster by expanding Prologis' relationship with 180 existing customers
while adding more than 325 new customers;
- •
- its expectation that the execution of the proposed transactions will create significant additional capital for the Combined Company from the future sale of non-core assets, which will help fund future growth;
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- •
- its belief that the businesses of Prologis and Liberty are highly complementary and that the integration of the two companies will be completed
in a timely and efficient manner with minimal disruption to tenants and employees;
- •
- its expectation that upon completion of the mergers, Prologis stockholders will own approximately 86% of the common stock of the Combined
Company;
- •
- that, following the mergers, there will be no changes to the Prologis board or executive management team, with Hamid R. Moghadam serving as
Chief Executive Officer and Chairman of the Combined Company;
- •
- management's knowledge of Prologis' business, financial condition, results of operations, industry and competitors;
- •
- management's knowledge of Liberty's business, financial condition, results of operations, industry and competitors, taking into account the
results of Prologis' due diligence review of Liberty;
- •
- restrictions on Liberty's ability to solicit acquisition proposals, engage in negotiations or discussions concerning, or provide any non-public
information or data to any person or entity relating to, an acquisition proposal and enter into any agreement relating to any acquisition proposal, as further discussed in the section entitled "The
Merger Agreement—Covenants and Agreements—No Solicitation of Acquisition Proposals";
- •
- the merger agreement's provisions requiring Liberty to pay Prologis a termination fee of $325 million (or $150 million under
certain circumstances) and/or reimburse Prologis' transaction expenses up to an amount equal to $15 million if the merger agreement is terminated under specified circumstances;
- •
- the historical and then-current trading prices and volumes of each of the Prologis common stock and the Liberty common shares;
- •
- the fact that the exchange ratio is fixed and will not be adjusted for fluctuations in the market price of Prologis common stock or Liberty
common shares; and
- •
- the other terms and conditions of the merger agreement.
The Prologis board also considered a number of risks and other factors identified in its deliberations as weighing negatively against the merger, including the following:
- •
- the risk of not capturing all of the anticipated estimated cost and long-term revenue synergies and the risk that other anticipated benefits of
the mergers might not be realized on the expected time frame or at all;
- •
- the risk that the mergers might not be completed in a timely manner or at all, and that such failure could negatively affect the price of
Prologis common stock and future business and financial results;
- •
- the risk of diverting management focus and resources from operational matters and other strategic opportunities while working to implement the
mergers;
- •
- the restrictions on the conduct of Prologis' business during the period between the execution of the merger agreement and the consummation of
the mergers (or, if applicable, the termination of the merger agreement);
- •
- the costs to be incurred in connection with the mergers and related transactions;
- •
- the risk that Prologis or Liberty may be unable to retain key employees;
70
- •
- the potential impact on the market price of Prologis common stock as a result of the issuance of the merger consideration to Liberty
shareholders;
- •
- the merger agreement's provisions permitting Liberty to terminate the merger agreement prior to the receipt of the Liberty shareholder approval
to enter into an acquisition agreement with respect to a superior proposal (subject to compliance with the provisions of the merger agreement regarding non-solicitation of acquisition proposals) upon
payment by Liberty to Prologis of a termination fee of $325 million (or $150 million under certain circumstances); and
- •
- the risks described in the section entitled "Risk Factors."
After consideration of these factors, the Prologis board determined that, overall, the potential benefits of the mergers outweighed the potential risks. Accordingly, the Prologis board approved the merger agreement and the transactions contemplated thereby.
The foregoing discussion of factors considered by the Prologis board is not intended to be exhaustive and may not include all the factors considered by the Prologis board. In view of the wide variety of factors considered in connection with its evaluation of the mergers and the complexity of these matters, the Prologis board did not attempt to quantify, rank or otherwise assign any relative or specific weights to the factors that it considered in reaching its determination to approve the mergers and the merger agreement. In addition, individual members of the Prologis board may have given differing weights to different factors. The Prologis board conducted an overall review of the factors described above and other factors, including through discussions with, and inquiry of, Prologis' management and outside legal and financial advisors.
Opinions of Liberty's Financial Advisors
Opinion of Goldman Sachs
Goldman Sachs rendered its opinion to the Liberty board that, as of October 27, 2019 and based upon and subject to the factors and assumptions set forth therein, the exchange ratio pursuant to the merger agreement was fair from a financial point of view to the holders (other than Prologis and its affiliates) of Liberty common shares.
The full text of the written opinion of Goldman Sachs, dated October 27, 2019, which sets forth assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B to this proxy statement/prospectus. Goldman Sachs provided advisory services and its opinion for the information and assistance of the Liberty board in connection with its consideration of the transaction. The Goldman Sachs opinion is not a recommendation as to how any holder of Liberty common shares should vote with respect to the transaction or any other matter.
In connection with rendering the opinion described above, Goldman Sachs reviewed, among other things:
- •
- the merger agreement;
- •
- annual reports to shareholders or stockholders and Annual Reports on Form 10-K of Liberty and Prologis for the five years ended
December 31, 2018;
- •
- certain interim reports to shareholders or stockholders and Quarterly Reports on Form 10-Q of Liberty and Prologis;
- •
- certain other communications from Liberty and Prologis to their respective shareholders or stockholders;
- •
- certain publicly available research analyst reports for Liberty and Prologis;
71
- •
- certain internal financial analyses and forecasts for Prologis on a standalone basis as prepared by the management of Prologis, as well as
certain information regarding Prologis on a pro forma basis giving effect to the transaction, as communicated by the management of Prologis to the management of Liberty; and
- •
- certain internal financial analyses and forecasts for Liberty and certain financial analyses and forecasts for Prologis on a standalone basis and on a pro forma basis giving effect to the transaction, in each case as prepared by the management of Liberty and approved for Goldman Sachs' and Citi's use by Liberty, which we refer to collectively as the "Liberty management forecasts," including certain operating synergies projected by the management of Liberty to result from the transaction, as approved for Goldman Sachs' and Citi's use by Liberty, which we refer to as "Synergies."
Goldman Sachs also held discussions with members of the senior management of Liberty and Prologis regarding their assessments of the strategic rationale for, and the potential benefits of, the transaction and the past and current business operations, financial condition and future prospects of Liberty and Prologis; reviewed the reported price and trading activity for the Liberty common shares and shares of Prologis common stock; compared certain financial and stock market information for Liberty and Prologis with similar information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the U.S. real estate investment trust industry; and performed such other studies and analyses, and considered such other factors, as it deemed appropriate.
For purposes of rendering its opinion, Goldman Sachs, with Liberty's consent, relied upon and assumed the accuracy and completeness of all of the financial, legal, regulatory, tax, accounting and other information provided to, discussed with or reviewed by, it, without assuming any responsibility for independent verification thereof. In that regard, Goldman Sachs assumed with Liberty's consent that the Liberty management forecasts, including the Synergies, were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Liberty. Goldman Sachs did not make an independent evaluation or appraisal of the assets and liabilities (including any contingent, derivative or other off-balance-sheet assets and liabilities) of Liberty or Prologis or any of their respective subsidiaries and it was not furnished with any such evaluation or appraisal. Goldman Sachs assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the transaction will be obtained without any adverse effect on Liberty or Prologis or on the expected benefits of the transaction in any way meaningful to its analysis. Goldman Sachs has also assumed that the transaction will be consummated on the terms set forth in the merger agreement, without the waiver or modification of any term or condition the effect of which would be in any way meaningful to its analysis.
Goldman Sachs' opinion does not address the underlying business decision of Liberty to engage in the transaction or the relative merits of the transaction as compared to any strategic alternatives that may be available to Liberty; nor does it address any legal, regulatory, tax or accounting matters. Goldman Sachs' opinion addresses only the fairness from a financial point of view to the holders (other than Prologis and its affiliates) of Liberty common shares, as of the date of the opinion, of the exchange ratio pursuant to the merger agreement. Goldman Sachs' opinion does not express any view on, and does not address, any other term or aspect of the merger agreement or the transaction or any term or aspect of any other agreement or instrument contemplated by the merger agreement or entered into or amended in connection with the transaction, including the company mergers or the partnership merger or any consideration received in connection therewith, the fairness of the transaction, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of Liberty; nor as to the fairness of the amount or nature of any compensation to be paid or payable to any of the officers, trustees or employees of Liberty, or class of such persons, in connection with the transaction, whether relative to the exchange ratio
72
pursuant to the merger agreement or otherwise. Goldman Sachs does not express any opinion as to the prices at which shares of Prologis common stock will trade at any time or as to the impact of the transaction on the solvency or viability of Liberty or Prologis or the ability of Liberty or Prologis to pay their respective obligations when they come due. Goldman Sachs' opinion was necessarily based on economic, monetary market and other conditions, as in effect on, and the information made available to it as of the date of the opinion and Goldman Sachs assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. Goldman Sachs' opinion was approved by a fairness committee of Goldman Sachs.
The following is a summary of the material financial analyses delivered by Goldman Sachs to the Liberty board in connection with rendering the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Goldman Sachs, nor does the order of analyses described represent relative importance or weight given to those analyses by Goldman Sachs. Some of the summaries of the financial analyses include information presented in tabular format. The tables must be read together with the full text of each summary and are alone not a complete description of Goldman Sachs' financial analyses. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before October 25, 2019, the last trading day before the public announcement of the transaction, and is not necessarily indicative of current market conditions.
Implied Premia and Multiple Analysis
Goldman Sachs calculated an implied value of $61.33 for the exchange ratio of 0.675 shares of Prologis common stock to be paid for each Liberty common share by multiplying the closing price of $90.86 per share of Prologis common stock on October 25, 2019 by the exchange ratio of 0.675.
Goldman Sachs also calculated the premium (or discount) represented by the implied value of $61.33 for the exchange ratio (calculated as described above) in relation to:
- •
- the closing price per Liberty common share as of October 25, 2019;
- •
- the highest closing price per Liberty common share for the 52-week period ended October 25, 2019; and
- •
- the average closing price per Liberty common share for the 30-day and one-year periods ended October 25, 2019.
The results of these calculations are as follows:
Reference Price for the Liberty common shares
|
Implied Premium Represented by Implied Value of $61.33 for the Exchange Ratio |
|||
|---|---|---|---|---|
October 25, 2019 Closing Price of $50.57 |
21.3 | % | ||
52-Week Highest Closing Price of $53.39 |
14.9 | % | ||
30-day Average Closing Price of $50.91 |
20.5 | % | ||
One-Year Average Closing Price of $48.21 |
27.2 | % | ||
Goldman Sachs calculated the premium represented by the exchange ratio pursuant to the merger agreement in relation to the exchange ratios calculated by:
- •
- dividing the closing price per Liberty common share as of October 25, 2019 by the closing price per share of Prologis common stock as of such date,
73
- •
- the average of the exchange ratios calculated by dividing the daily closing price per Liberty common share by the daily closing price per share
of Prologis common stock for the 30-day period ended October 25, 2019; and
- •
- the average of the exchange ratios calculated by dividing the daily closing price per Liberty common share by the daily closing price per share of Prologis common stock for the one-year period ended October 25, 2019.
The result of these calculations were as follows:
Reference Exchange Ratio
|
Implied Premium Represented by the Exchange Ratio Pursuant to the Merger Agreement |
|||
|---|---|---|---|---|
Closing Price as of October 25, 2019 (0.5566x) |
21.3 | % | ||
30-Day Closing Average (0.5824x) |
15.9 | % | ||
One-Year Closing Average (0.6499x) |
3.9 | % | ||
In addition, Goldman Sachs calculated an implied equity value for Liberty by using the implied value of the exchange ratio pursuant to the merger agreement (which we refer to as the "Implied Liberty Transaction Equity Value"), multiplying that value per share by the number of fully diluted outstanding Liberty common shares, as provided by Liberty management. Goldman Sachs also calculated an enterprise value for Liberty by adding to the Implied Liberty Transaction Equity Value, the estimate of Liberty's net debt (defined as debt less cash) and preferred equity and non-controlling interests as of September 30, 2019, as provided by Liberty management. The foregoing calculation of enterprise value is referred to as the Implied Liberty Transaction Enterprise Value.
Using the foregoing, Goldman Sachs calculated the following multiples:
- •
- Implied Liberty Transaction Enterprise Value, as a multiple of the median of estimates of the earnings before interest, taxes, depreciation and
amortization, or "EBITDA," of Liberty for 2019 and 2020, based on Institutional Brokers' Estimate System ("IBES"), which are referred to as "EBITDA Consensus Estimates";
- •
- Implied Liberty Transaction Enterprise Value, as a multiple of Adjusted EBITDA of Liberty for 2019 and 2020, as reflected in the Liberty
management forecasts;
- •
- the implied value of $61.33 for the exchange ratio, as a multiple of the median of estimates of funds from operations, or "FFO," per share of
Liberty for 2019 and 2020, based on IBES, which are referred to as "FFO Consensus Estimates"; and
- •
- the implied value of $61.33 for the exchange ratio, in each case as a multiple of estimated FFO per share of Liberty for 2019 and 2020, as reflected in the Liberty management forecasts.
74
The results of these calculations were as follows:
| |
Implied Multiple using Implied Value of $61.33 for the Exchange Ratio |
|||
|---|---|---|---|---|
Enterprise Value as a multiple of 2019E EBITDA of $447 million (EBITDA Consensus Estimates) |
27.9x | |||
Enterprise Value as a multiple of 2019E Adjusted EBITDA of $493 million (Liberty management forecasts) |
25.3x | |||
Enterprise Value as a multiple of 2020E EBITDA of $476 million (EBITDA Consensus Estimates) |
26.2x | |||
Enterprise Value as a multiple of 2020E Adjusted EBITDA of $508 million (Liberty management forecasts) |
24.6x | |||
Price per share as a multiple of 2019E FFO of $2.53 per Liberty common share (FFO Consensus Estimates) |
24.2x | |||
Price per share as a multiple of 2019E FFO of $2.58 per Liberty common share (Liberty management forecasts) |
23.8x | |||
Price per share as a multiple of 2020E FFO of $2.67 per Liberty common share (FFO Consensus Estimates) |
23.0x | |||
Price per share as a multiple of 2020E FFO of $2.64 per Liberty common share (Liberty management forecasts) |
23.2x | |||
Illustrative Discounted Cash Flow Analyses for Liberty and Prologis
Using the Liberty management forecasts, Goldman Sachs performed illustrative discounted cash flow analyses on each of Liberty and Prologis on a standalone basis.
Liberty
Using discount rates ranging from 4.5% to 5.5%, reflecting estimates of Liberty's weighted average cost of capital, Goldman Sachs discounted to present value as of September 30, 2019 (i) estimates of unlevered free cash flow for Liberty for October 1, 2019 through December 31, 2024 as reflected in the Liberty management forecasts, (ii) a range of illustrative terminal values for Liberty, which were calculated by applying exit terminal year EBITDA multiples ranging from 20.0x to 24.0x to a terminal year estimate of Adjusted EBITDA to be generated by Liberty, as reflected in the Liberty management forecasts (which analysis implied perpetuity growth rates ranging from 0.3% to 1.9%), and (iii) an illustrative terminal value of non-stabilized assets in the terminal year based on the incremental stabilized net operating income, as derived from the Liberty management forecasts, and a risk adjusted nominal capitalization rate of approximately 5.6% derived from information published by Green Street Advisors. Goldman Sachs derived such discount rates by application of the Capital Asset Pricing Model, which we refer to as CAPM, which requires certain company-specific inputs, including the company's target capital structure weightings, the cost of long-term debt, and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The range of exit terminal year EBITDA multiples was estimated by Goldman Sachs utilizing its professional judgment and experience taking into account historical trading multiples of Liberty, Prologis and the following publicly traded corporations in the REIT industry, which we refer to collectively as the "Selected Public Companies":
- •
- Duke Realty Corporation
- •
- EastGroup Properties, Inc.
- •
- First Industrial Realty Trust, Inc.
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Goldman Sachs derived ranges of illustrative enterprise values for Liberty by adding the ranges of present values it derived above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived for Liberty the amount of Liberty's net debt (defined as debt less cash) and preferred equity and non-controlling interests as of September 30, 2019, in each case, as provided by the management of Liberty, to derive a range of illustrative equity values for Liberty. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding shares of Liberty, as provided by the management of Liberty, to derive a range of illustrative present values per share ranging from $55.75 to $71.86.
Prologis
Using discount rates ranging from 4.5% to 5.5%, reflecting estimates of Prologis weighted average cost of capital, Goldman Sachs discounted to present value as of September 30, 2019 (i) estimates of unlevered free cash flow for Prologis for October 1, 2019 through December 31, 2024 as reflected in the Liberty management forecasts, (ii) a range of illustrative terminal values for Prologis, which were calculated by applying exit terminal year EBITDA multiples ranging from 23.0x to 27.0x to a terminal year estimate of the Adjusted EBITDA to be generated by Prologis, as reflected in the Liberty management forecasts (which analysis implied perpetuity growth rates ranging from 1.0% to 2.4%), and (iii) an illustrative terminal value of non-stabilized assets in the terminal year based on the incremental stabilized net operating income, as derived from the Liberty management forecasts, and a risk adjusted nominal capitalization rate of approximately 5.0% derived from information published by Green Street Advisors. Goldman Sachs derived such discount rates by application of CAPM, which requires certain company-specific inputs, including the company's target capital structure weightings, the cost of long-term debt, and a beta for the company, as well as certain financial metrics for the United States financial markets generally. The range of exit terminal year EBITDA multiples was estimated by Goldman Sachs utilizing its professional judgment and experience taking into account historical trading multiples of Prologis, Liberty and the Selected Public Companies. Goldman Sachs derived ranges of illustrative enterprise values of Prologis by adding the ranges of present values it derived above. Goldman Sachs then subtracted from the range of illustrative enterprise values it derived for Prologis the amount of Prologis' net debt (defined as debt less cash) and preferred equity and non-controlling interests as of September 30, 2019, in each case, as provided by the management of Liberty, to derive a range of illustrative equity values for Prologis. Goldman Sachs then divided the range of illustrative equity values it derived by the number of fully diluted outstanding shares of the Prologis, as provided by the management of Liberty, to derive a range of illustrative present values per share ranging from $82.44 to $104.30.
Illustrative Present Value of Future Share Price Analyses for Liberty Standalone, Prologis Standalone and for the Pro Forma Value to be Received per Liberty Common Share
Liberty Standalone
Goldman Sachs performed an illustrative analysis of the implied present value of a future value per Liberty common share, including the present value of accumulated dividends, which is designed to provide an indication of the present value of a theoretical future value of a company's equity as a function of such company's financial multiples.
For this analysis, Goldman Sachs first derived a range of theoretical future values per Liberty common share as of December 31, 2019 to 2022, by applying price to next twelve months ("NTM") FFO multiples ranging from 17.0x to 21.0x to the estimates of Liberty's one-year forward FFO per share as of the end of that fiscal year, respectively, reflected in the Liberty management forecasts. The FFO multiples that were applied were derived by Goldman Sachs utilizing its professional judgment and experience taking into account historical trading multiples of Liberty, Prologis and the Selected Public Companies. Goldman Sachs then discounted to present value as of September 30, 2019 the
76
theoretical future values per Liberty common share it derived and the estimated dividends to be paid per Liberty common share through the end of the applicable year as reflected in the Liberty management forecasts by a discount rate of 5.5%, which reflects an estimate of Liberty's cost of equity, derived by application of CAPM, which requires certain company-specific inputs, including a beta for the company, as well as certain financial metrics for the United States financial markets generally, to yield illustrative present values per Liberty common share ranging from $44.69 to $60.18.
Prologis Standalone
Goldman Sachs performed an illustrative analysis of the implied present value of a future value per share of Prologis common stock, including the present value of accumulated dividends, which is designed to provide an indication of the present value of a theoretical future value of a company's equity as a function of such company's financial multiples.
For this analysis, Goldman Sachs first derived a range of theoretical future values per share for Prologis common stock as of December 31, 2019 to 2022, by applying price to NTM FFO multiples ranging from 22.0x to 26.0x to the estimates of Prologis' one-year forward FFO per share as of the end of that fiscal year, respectively, reflected in the Liberty management forecasts. The FFO multiples that were applied were derived by Goldman Sachs utilizing its professional judgment and experience taking into account historical trading multiples of Prologis, Liberty and the Selected Public Companies. Goldman Sachs then discounted to a present value as of September 30, 2019 the theoretical future values per share of Prologis common stock it derived and the estimated dividends to be paid per share of Prologis common stock through the end of the applicable year as reflected in the Liberty management forecasts by a discount rate of 5.5%, which reflects an estimate of Prologis' cost of equity, derived by application of CAPM, which requires certain company-specific inputs, including a beta for the company, as well as certain financial metrics for the United States financial markets generally, to yield illustrative present values per share of Prologis common stock ranging from $78.02 to $99.93.
Pro Forma Value to be Received per Liberty Common Share
Goldman Sachs performed an illustrative analysis of the implied present value of a future value of the consideration to be received per Liberty common share, including the present value of accumulated dividends, which is designed to provide an indication of the present value of a theoretical future value of the consideration received per Liberty common share as a function of such pro forma company's financial multiples.
For this analysis, Goldman Sachs first derived a range of theoretical future values of the consideration received per Liberty common share as of December 31, 2019 to 2022, by applying price to NTM FFO multiples ranging from 21.5x to 25.5x to the estimates of the pro forma company's one-year forward exchange-ratio-adjusted FFO per share as of the end of that fiscal year, respectively, reflected in the Liberty management forecasts. The FFO multiples that were applied were derived by Goldman Sachs utilizing its professional judgment and experience taking into account historical trading multiples of Liberty, Prologis and the Selected Public Companies. Goldman Sachs then discounted to a present value as of September 30, 2019 the theoretical future values of the consideration received per Liberty common share it derived and the estimated exchange-ratio-adjusted dividends to be paid per consideration received per Liberty common share through the end of the applicable year as reflected in the Liberty management forecasts by a discount rate of 5.5%, which reflects an estimate of the pro forma company's cost of equity, derived by application of CAPM, which requires certain company-specific inputs, including, a beta for the company, as well as certain financial metrics for the United States financial markets generally, to yield illustrative present values received per Liberty common share (including synergies) ranging from $53.36 to $68.28.
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Illustrative Implied Premia of Precedent REIT Transactions
Goldman Sachs reviewed and analyzed, using publicly available information, the acquisition premia for transactions announced since April 25, 2013 involving a U.S. listed REIT target, where the disclosed transaction value exceeded $500 million.
For the entire period, using publicly available information, Goldman Sachs calculated the 25th percentile, median, mean and 75th percentile of the premia of the price paid in the transactions relative to the closing stock prices of the target involved in the transaction on the trading day prior to the date on which such transaction was announced or a news report, management commentary, public filing, or other public disclosure regarding such transaction occurred, which we refer to as the "undisturbed date." The following table presents the results of this analysis:
| |
Premia on Share Price on Undisturbed Date |
|||
|---|---|---|---|---|
75th Percentile |
20.8 | % | ||
Mean |
18.1 | |||
Median |
15.3 | |||
25th Percentile |
12.3 | |||
Goldman Sachs then applied a reference range of illustrative premia of 12.3% to 20.8%, reflecting the 25th percentile and 75th percentile one-day premia, to the closing price per Liberty common share on October 25, 2019, the last trading day before the public announcement of the transaction, of $50.57 to derive a range of illustrative implied values per Liberty common share of $56.78 to $61.10.
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 above, without considering the analyses as a whole, could create an incomplete view of the processes underlying Goldman Sachs' opinion. In arriving at its fairness determination, Goldman Sachs considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Goldman Sachs 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 above analyses as a comparison is directly comparable to Liberty or Prologis or the transaction.
Goldman Sachs prepared these analyses for purposes of Goldman Sachs' providing its opinion to the Liberty board as to the fairness from a financial point of view to the holders (other than Prologis and its affiliates) of Liberty common shares of the exchange ratio pursuant to the merger agreement. These analyses do not purport to be appraisals nor do they necessarily reflect the prices at which businesses or securities actually may be sold. Analyses based upon forecasts of future results are not necessarily indicative of actual future results, which may be significantly more or less favorable than suggested by these analyses. Because these analyses are inherently subject to uncertainty, being based upon numerous factors or events beyond the control of the parties or their respective advisors, none of Liberty, Prologis, Goldman Sachs or any other person assumes responsibility if future results are materially different from those forecast.
The exchange ratio was determined through arm's-length negotiations between Liberty and Prologis and was approved by the Liberty board. Goldman Sachs provided advice to Liberty during these negotiations. Goldman Sachs did not, however, recommend any specific exchange ratio to Liberty or the Liberty board or that any specific exchange ratio constituted the only appropriate exchange ratio for the transaction.
As described above, Goldman Sachs' opinion to the Liberty board was one of many factors taken into consideration by the Liberty board in making its determination to approve the merger agreement.
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The foregoing summary does not purport to be a complete description of the analyses performed by Goldman Sachs in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Goldman Sachs attached as Annex B to this proxy statement/prospectus.
Goldman Sachs and its affiliates are engaged in advisory, underwriting and financing, principal investing, sales and trading, research, investment management and other financial and non-financial activities and services for various persons and entities. Goldman Sachs and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interests or with which they co-invest, may at any time purchase, sell, hold or vote long or short positions and investments in securities, derivatives, loans, commodities, currencies, credit default swaps and other financial instruments of Liberty, Prologis, any of their respective affiliates and third parties, or any currency or commodity that may be involved in the transaction contemplated by the merger agreement. Goldman Sachs acted as financial advisor to Liberty in connection with, and participated in certain of the negotiations leading to, the transaction contemplated by the merger agreement. Goldman Sachs has provided certain financial advisory and/or underwriting services to Liberty and its affiliates from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as joint book-running manager on Liberty's public offering of 4.375% senior unsecured notes due 2029 (aggregate principal amount $350 million) in January 2019; and as joint-bookrunner on Liberty's public offering of 8.0 million Liberty common shares in September 2019. During the two-year period ended October 27, 2019, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division to Liberty and/or its affiliates of approximately $8.6 million. Goldman Sachs also has provided certain financial advisory and/or underwriting services to Prologis and its affiliates from time to time for which the Investment Banking Division of Goldman Sachs has received, and may receive, compensation, including having acted as joint-bookrunner on a public offering of investment units in Nippon Prologis REIT, an affiliate of Prologis (aggregate principal amount ¥29.5 billion) in March 2018; as co-manager on Prologis' public offering of 3.875% notes due 2028, and 4.375% notes due 2048 (aggregate principal amount $700 million) in June 2018; as joint-bookrunner on Prologis' public offering of 1.875% senior notes due 2029 (aggregate principal amount €700 million) in July 2018; as co-manager on a public offering of Prologis' 0.652% Notes due 2025, 0.972% Notes due 2028, 1.077% Notes due 2030, and 1.470% Notes due 2038 (aggregate principal amount ¥55.1 billion) in September 2018; as joint-bookrunner on a public offering of investment units by Nippon Prologis REIT (aggregate principal amount ¥36.6 billion) in June 2019; and as joint-bookrunner on a public offering by Prologis of 1.500% Medium-Term Notes due 2049, 0.625% Medium-Term Notes due 2031 and 0.250% Medium-Term Notes due 2027 (aggregate principal amount €1.8 billion) in August 2019. During the two-year period ended October 27, 2019, Goldman Sachs has recognized compensation for financial advisory and/or underwriting services provided by its Investment Banking Division to Prologis and/or its affiliates of less than $4.5 million. Goldman Sachs may also in the future provide financial advisory and/or underwriting services to Liberty, Prologis and their respective affiliates for which the Investment Banking Division of Goldman Sachs may receive compensation.
The Liberty board selected Goldman Sachs as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the transaction. Pursuant to a letter agreement dated October 9, 2019, Liberty engaged Goldman Sachs to act as its financial advisor in connection with the transaction. The engagement letter between Liberty and Goldman Sachs provides for a transaction fee that is estimated, based on the information available as of the date of announcement, at approximately $30 million, all of which is contingent upon consummation of the transaction. In addition, Liberty has agreed to reimburse Goldman Sachs for certain of its expenses, including attorneys' fees and disbursements, and to indemnify Goldman Sachs and related persons against various liabilities, including certain liabilities under the federal securities laws.
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Opinion of Citi
Liberty has engaged Citi to act as its financial advisor in connection with the transaction. In connection with Citi's engagement, the Liberty board requested that Citi evaluate the fairness, from a financial point of view, to the holders of Liberty common shares, of the exchange ratio to be paid to such holders pursuant to the merger agreement. On October 27, 2019, at a meeting of the Liberty board held to evaluate the proposed transaction, Citi rendered to the Liberty board an oral opinion, confirmed by delivery of a written opinion dated October 27, 2019, to the effect that, as of such date and based on and subject to various assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken, the exchange ratio to be paid to the holders of Liberty common shares pursuant to the merger agreement was fair, from a financial point of view, to such holders.
The full text of Citi's written opinion, dated October 27, 2019, which describes the assumptions made, procedures followed, matters considered and limitations and qualifications on the review undertaken, is attached as Annex C to this proxy statement/prospectus and is incorporated into this proxy statement/prospectus by reference. The description of Citi's opinion set forth below is qualified in its entirety by reference to the full text of Citi's opinion. Citi's opinion was provided for the information of the Liberty board (in its capacity as such) in connection with its evaluation of the transaction and was limited to the fairness, from a financial point of view, as of the date of the opinion, of the exchange ratio to be paid to the holders of outstanding Liberty common shares. Citi expressed no view as to, and its opinion did not address, the underlying business decision of Liberty to effect or enter into the transaction, the relative merits of the transaction as compared to any alternative business strategies that might exist for Liberty or the effect of any other transaction in which Liberty might engage. Citi's opinion is not intended to be and does not constitute a recommendation to any stockholder as to how such stockholder should vote or act on any matters relating to the proposed transaction or any other matter.
In arriving at its opinion, Citi, among other things:
- •
- reviewed a draft of the merger agreement dated October 26, 2019;
- •
- held discussions with certain senior officers, trustees and other representatives and advisors of Liberty and certain senior officers and other
representatives and advisors of Prologis concerning the businesses, operations and prospects of Liberty and Prologis;
- •
- examined certain publicly available business and financial information relating to Liberty and Prologis as well as certain financial forecasts
and other information and data relating to Liberty and Prologis which were provided to or discussed with Citi by the management of Liberty and Prologis, including (i) certain internal financial
analyses and forecasts for Prologis on a standalone basis as prepared by the management of Prologis, (ii) certain information regarding Prologis on a pro forma basis giving effect to the
transaction, as communicated by the management of Prologis to the management of Liberty, and (iii) the Liberty management forecasts, including the Synergies (including the amount, timing and
achievability thereof);
- •
- reviewed the financial terms of the transaction as set forth in the draft merger agreement in relation to, among other things, current and
historical market prices and trading volumes of Liberty common shares and Prologis common stock, the historical and projected earnings and other operating data of Liberty and Prologis, and the
capitalization and financial condition of Liberty and Prologis;
- •
- considered, to the extent publicly available, the financial terms of certain other transactions which Citi considered relevant in evaluating
the transaction;
- •
- analyzed certain financial, stock market and other publicly available information relating to the businesses of other companies whose operations Citi considered relevant in evaluating those of Liberty and Prologis;
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- •
- evaluated certain potential pro forma financial effects of the transaction on Prologis; and
- •
- conducted such other analyses and examinations and considered such other information and financial, economic and market criteria as Citi deemed appropriate in arriving at its opinion.
In rendering its opinion, Citi assumed and relied, without independent verification, upon the accuracy and completeness of all financial and other information and data publicly available or provided to or otherwise reviewed by or discussed with Citi and upon the assurances of the managements of Liberty and Prologis that they were not aware of any relevant information that was omitted or that remained undisclosed to Citi. With respect to the Liberty management forecasts and other information and data relating to Liberty and Prologis provided to or otherwise reviewed by or discussed with Citi, Citi was advised by the management of Liberty that such Liberty management forecasts and other information and data were reasonably prepared on bases reflecting the best currently available estimates and judgments of the management of Liberty as to the future financial performance of Liberty and Prologis, the potential strategic implications and operational benefits anticipated to result from the transaction and the other matters covered thereby, and Citi assumed, with Liberty's consent, that the financial results (including with respect to the potential strategic implications and operational benefits anticipated to result from the transaction) reflected in such Liberty management forecasts and other information and data would be realized in the amounts and at the times projected.
Citi assumed, with Liberty's consent, that the transaction and related transactions (including the partnership merger) would be consummated in accordance with the terms of the merger agreement, without waiver, modification or amendment of any material term, condition or agreement, and that, in the course of obtaining the necessary regulatory or third party approvals, consents and releases for the transaction, no delay, limitation, restriction or condition will be imposed that would have an adverse effect on Liberty, Prologis or the contemplated benefits of the transaction.
Representatives of Liberty advised Citi, who further assumed, that the final terms of the merger agreement would not vary materially from those set forth in the draft dated October 26, 2019 reviewed by Citi. Citi also assumed, with Liberty's consent, that the Liberty merger and the Topco merger will each be treated as a tax-free reorganization for federal income tax purposes. Citi was advised by Liberty, and assumed, with Liberty's consent, that Liberty has operated in conformity with the requirements for qualification as a REIT for U.S. federal income tax purposes commencing with its taxable year ended December 31, 1994 and that Prologis has operated in conformity with the requirements for qualification as a REIT for U.S. federal income tax purposes commencing with its taxable year ended December 31, 1997, and that the transaction and related transactions would not adversely affect such status or operations of Liberty or Prologis. Citi's opinion relates to the relative values of Liberty and Prologis. Citi did not express any opinion as to what the value of the Prologis common stock actually would be when issued pursuant to the Topco merger or the price at which the Prologis common stock would trade at any time. Citi did not make nor was Citi provided with an independent evaluation or appraisal of the assets or liabilities (contingent or otherwise) of Liberty or Prologis nor did Citi make any physical inspection of the properties or assets of Liberty or Prologis.
Citi's opinion did not address the underlying business decision of Liberty to effect the transaction, the relative merits of the transaction as compared to any alternative business strategies that might exist for Liberty or the effect of any other transaction in which Liberty might engage. Citi expressed no view as to, and its opinion did not address, the fairness (financial or otherwise) of (i) the amount or nature or any other aspect of any compensation to any officers, trustees or employees of any parties to the transaction, or any class of such persons, relative to the exchange ratio or (ii) any consideration to be received in connection with the partnership merger by the holders of any class of securities of any party thereto. Citi's opinion was necessarily based upon information available to Citi, and financial, stock
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market and other conditions and circumstances existing as of the date of its opinion. The issuance of Citi's opinion was authorized by Citi's fairness opinion committee.
In preparing its opinion, Citi performed a variety of financial and comparative analyses, including those described below. The summary of the analyses below is not a complete description of Citi's opinion or the analyses underlying, and factors considered in connection with, Citi's opinion. The preparation of a financial opinion is a complex analytical process involving various determinations as to the most appropriate and relevant methods of financial analysis and the application of those methods to the particular circumstances and, therefore, a financial opinion is not readily susceptible to summary description. Citi arrived at its ultimate opinion based on the results of all analyses and factors assessed as a whole, and it did not draw, in isolation, conclusions from or with regard to any one factor or method of analysis. Accordingly, Citi believes that the analyses must be considered as a whole and that selecting portions of its analyses and factors or focusing on information presented in tabular format, without considering all analyses and factors or the narrative description of the analyses, could create a misleading or incomplete view of the processes underlying such analyses and its opinion.
In its analyses, Citi considered industry performance, general business, economic, market and financial conditions and other matters existing as of the date of its opinion, many of which are beyond the control of Liberty and Prologis. No company, business or transaction reviewed is identical or directly comparable to Liberty or Prologis or the transaction and an evaluation of these analyses is not entirely mathematical; rather, the analyses involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the public trading, acquisition or other values of the companies, business segments or transactions reviewed or the results from any particular analysis.
The estimates contained in Citi's analyses and the ranges resulting from any particular analysis are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by such analyses. In addition, analyses relating to the value of businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be sold or acquired. Accordingly, the estimates used in, and the results derived from, Citi's analyses are inherently subject to substantial uncertainty.
Citi was not requested to, and it did not, recommend or determine the specific consideration payable in the transaction. The type and amount of consideration payable in the transaction were determined through negotiations between Liberty and Prologis and the decision to enter into the merger agreement was solely that of the Liberty board. Citi's opinion was only one of many factors considered by the Liberty board in its evaluation of the transaction and should not be viewed as determinative of the views of the Liberty board or Liberty management with respect to the transaction or the exchange ratio.
The following is a summary of the material financial analyses prepared and reviewed with the Liberty board in connection with the rendering of Citi's opinion, dated October 27, 2019. The summary set forth below does not purport to be a complete description of the financial analyses performed by, and underlying the opinion of, Citi, nor does the order of the financial analyses described represent the relative importance or weight given to those financial analyses by Citi. Certain financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses, the tables must be read together with the text of each summary as the tables alone do not constitute a complete description of the financial analyses. Considering the data in the tables below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the financial analyses, could create a misleading or
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incomplete view of such financial analyses. Citi assumes no responsibility if future results are different from those described whether or not any such difference is material.
For purposes of the financial analyses described below, Citi calculated the implied transaction consideration to be $61.33, which was derived by multiplying the closing price per share of Prologis common stock of $90.86 on October 25, 2019, the last trading day prior to delivery of Citi's opinion, by the exchange ratio of 0.675 shares of Prologis common stock for each Liberty common share to be issued pursuant to the Topco merger.
Financial data for Liberty and Prologis utilized in the financial analyses described below were based on the Liberty management forecasts.
Discounted Cash Flow Analyses
Liberty. Citi performed a discounted cash flow analysis of Liberty by calculating the estimated present value of the unlevered, after-tax free cash flows that Liberty was expected to generate during the period from October 1, 2019 through December 31, 2024. For purposes of its analysis, the estimated terminal value of Liberty was calculated by applying a selected range of adjusted earnings before interest, taxes, depreciation and amortization ("Adjusted EBITDA") multiples of 18.8x to 22.8x, selected based on Citi's professional judgment, to Liberty's estimated terminal year Adjusted EBITDA of $650 million and adding to such terminal value an illustrative terminal value of non-stabilized assets in the terminal year based on the incremental stabilized net operating income, as derived from the Liberty management forecasts, and a risk adjusted nominal capitalization rate of approximately 5.6% derived from information published by Green Street Advisors. The forecasted unlevered, after-tax free cash flows for Liberty and the derived terminal values were then discounted to present values, as of September 30, 2019, using discount rates ranging from 5.72% to 6.52% based upon an analysis of Liberty's weighted average cost of capital, which Citi performed utilizing the capital asset pricing model with inputs that Citi determined were relevant based on publicly available data and Citi's professional judgment. Based on the above-described analysis, Citi derived a range of implied values per share for Liberty as of September 30, 2019 of $48.95 to $63.37, as compared to the implied transaction consideration of $61.33.
Prologis. Citi performed a discounted cash flow analysis of Prologis on a standalone basis by calculating the estimated present value of the unlevered, after-tax free cash flows that Prologis was expected to generate during the period from October 1, 2019 through December 31, 2024. For purposes of its analysis, the estimated terminal value of Prologis was calculated by applying a selected range of Adjusted EBITDA multiples of 22.1x to 26.1x, selected based on Citi's professional judgment to Prologis' estimated unlevered, after-tax free cash flows for the terminal year Adjusted EBITDA of $3,457 million and adding to such terminal value an illustrative terminal value of non-stabilized assets in the terminal year based on the incremental stabilized net operating income, as derived from the Liberty management forecasts, and a risk adjusted nominal capitalization rate of approximately 5.0% derived from information published by Green Street Advisors. The forecasted unlevered, after-tax free cash flows for Prologis and the derived terminal values were then discounted to present values, as of September 30, 2019, using discount rates ranging from 6.44% to 7.38% based upon an analysis of Prologis' weighted average cost of capital, which Citi performed utilizing the capital asset pricing model with inputs that Citi determined were relevant based on publicly available data and Citi's professional judgment. Based on the above-described analysis, Citi derived a range of implied values per share for Prologis as of September 30, 2019 of $70.18 to $89.53.
Selected Public Companies Analysis
Using publicly available information, including (a) published estimates of calendar year 2020 EBITDA, (b) published estimates of calendar year 2020 FFO per share, (c) published estimates of
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calendar year 2020 AFFO per share, and (d) published estimates of NAV per share, Citi reviewed and compared certain financial information for Liberty and Prologis to corresponding financial information, ratios and public market multiples, including certain multiple and percentages for EBITDA, FFO, AFFO and NAV per share, for Duke Realty Corporation, EastGroup Properties, Inc., and First Industrial Realty Trust, Inc., which we refer to collectively as the "Selected Public Companies". Citi selected the Selected Public Companies based on its professional judgment and experience. Although none of the Selected Public Companies are directly comparable to Liberty or Prologis, the companies were selected because they are publicly traded companies with operations or businesses that for purposes of analysis may be considered similar to certain operations of Liberty and Prologis.
With respect to each of the Selected Public Companies, Liberty and Prologis, Citi calculated:
- •
- the percentage premium or discount of the company's share price to its estimated NAV per share (which is based on such company's forecast by
Green Street Advisors) (which we refer to collectively as the "NAV Premium/Discount");
- •
- the company's EBITDA multiple for 2020, which is calculated by dividing (i) the equity value (which is calculated as the closing share
price on October 25, 2019 multiplied by the fully diluted number of share outstanding) plus debt and minority interests, less cash and cash equivalents by (ii) the company's estimated
EBITDA for 2020 (which is based on such company's consensus analyst forecast) (which we refer to collectively as the "EBITDA Multiple");
- •
- the company's FFO multiple for 2020, which was calculated by dividing (i) the closing share price on October 25, 2019 by
(ii) the company's estimated FFO per share for 2020 (which is based on such company's consensus analyst forecast) (which we refer to collectively as the "FFO Multiple"); and
- •
- the company's AFFO multiple for 2020, which was calculated by dividing (i) the closing share price on October 25, 2019 by (ii) the company's estimated AFFO for 2020 (which is based on such company's consensus analyst forecast) (which we refer to collectively as the "AFFO Multiple").
Financial data of the Selected Public Companies were based on publicly available Wall Street research analysts' estimates, public filings and other publicly available information. Financial data of Liberty and Prologis was based on the Liberty management forecasts and public filings.
The following table presents the results of this analysis:
| |
2020 EBITDA Multiple |
2020 FFO Multiple |
2020 AFFO Multiple |
Premium / (Discount) to NAV |
|||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
Duke Realty Corporation |
23.8x | 22.7x | 25.3x | 2.9 | % | ||||||||
EastGroup Properties, Inc. |
25.8 | 25.5 | 33.6 | 29.4 | |||||||||
First Industrial Realty Trust, Inc. |
22.3 | 22.5 | 26.7 | 10.8 | |||||||||
Prologis |
29.9 | 25.8 | 29.1 | 25.5 | |||||||||
Liberty |
22.5 | 18.9 | 23.5 | (8.3 | ) | ||||||||
Citi then applied selected ranges of 2020 EBITDA Multiples derived from the Selected Public Companies (which for purposes of the Liberty analysis includes Prologis but not Liberty) of 22.3x to 29.9x to the corresponding management forecast of Liberty's 2020 estimated Adjusted EBITDA, selected ranges of 2020 FFO Multiple derived from the Selected Public Companies of 22.5x to 25.8x to the corresponding management forecast of Liberty's estimated 2020 FFO per share, selected ranges of 2020 AFFO Multiple derived from the Selected Public Companies of 25.3x to 33.6x to the corresponding management forecast of Liberty's estimated 2020 AFFO per share, and selected ranges of NAV Premium/Discount derived from the Selected Public Companies of 2.9% to 29.4% to the
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corresponding range of management estimates of Liberty's NAV per share. This analysis indicated the following implied per share equity value reference ranges for Liberty, as compared to the implied transaction consideration of $61.33 per share:
| |
Implied Per Share Equity Value Reference Range |
|
|---|---|---|
Adjusted EBITDA Multiple: |
$49.86 - $72.10 | |
FFO Multiple: |
$60.10 - $68.92 | |
AFFO Multiple: |
$54.56 - $72.39 | |
NAV Premium/Discount: |
$56.72 - $71.34 |
Citi then applied selected ranges of 2020 EBITDA Multiples derived from the Selected Public Companies (which for purposes of the Prologis analysis includes Liberty but not Prologis) of 22.3x to 25.8x to the corresponding management forecast of Prologis' 2020 estimated Adjusted EBITDA, selected ranges of 2020 FFO Multiple derived from the Selected Public Companies of 18.9x to 25.5x to the corresponding management forecast of Prologis' estimated 2020 FFO per share, selected ranges of 2020 AFFO Multiple derived from the Selected Public Companies of 23.5x to 33.6x to the corresponding management forecast of Prologis' estimated 2020 AFFO per share, and selected ranges of NAV Premium/Discount derived from the Selected Public Companies of (8.3)% to 29.4% to the corresponding range of Liberty's management estimates of Prologis' NAV per share. This analysis indicated the following implied per share equity value reference ranges for Prologis:
| |
Implied Per Share Equity Value Reference Range |
|
|---|---|---|
Adjusted EBITDA Multiple: |
$63.52 - $76.60 | |
FFO Multiple: |
$66.29 - $89.35 | |
AFFO Multiple: |
$72.54 - $103.84 | |
NAV Premium/Discount: |
$66.40 - $93.67 |
Selected Precedent Transactions Analysis
Using public filings and publicly available information, Citi reviewed financial data for the 39 selected transactions set forth in the table below (which we collectively refer to as the "Company Selected Transactions"). The Company Selected Transactions were selected by Citi because they involved publicly traded companies within the REIT industry with, based on Citi's experience with mergers and acquisitions, certain financial, operational or business characteristics that, in Citi's view, made them sufficiently comparable to Liberty, Prologis and the merger or otherwise relevant for purposes of the comparison.
For each of the Company Selected Transactions, Citi reviewed, among other things, the ratio of the target's share premium or discount to the closing stock price on the last day of trading prior to the date on which such Company Selected Transaction was announced or a news report, management commentary, public filing, or other public disclosure regarding such transaction occurred (which we refer to as the "undisturbed date").
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Financial data of the Company Selected Transactions were based on public filings and other publicly available information. Liberty Selected Transactions reviewed and the results of this analysis were as follows:
Date Announced
|
Acquiror | Target | Premium to Price on Undisturbed Date (%) |
|||||
|---|---|---|---|---|---|---|---|---|
7/3/19 |
AXA Investment Managers—Real Assets | NorthStar Realty Europe | 16.4 | % | ||||
5/6/19 |
Park Hotels & Resorts | Chesapeake Lodging Trust | 8.2 | |||||
3/25/19 |
Cousins Properties | Tier REIT, Inc. | 15.6 | |||||
1/2/19 |
Omega Healthcare Investors | MedEquities Realty Trust | 53.1 | |||||
9/6/18 |
Pebblebrook Hotel Trust | LaSalle Hotel Properties | 48.0 | |||||
7/31/18 |
Brookfield Asset Management | Forest City Realty Trust | 26.6 | |||||
6/25/18 |
Greystar Investment Group | Education Realty Trust | 13.6 | |||||
5/7/18 |
Blackstone Group LP | Gramercy Property Trust | 15.4 | |||||
4/29/18 |
Prologis, Inc. | DCT Industrial Trust | 15.6 | |||||
3/26/18 |
Brookfield Property Partners | GGP | 15.2 | |||||
7/3/17 |
Greystar Growth and Income Fund LP | Monogram Residential Trust | 22.4 | |||||
6/30/17 |
Canada Pension Plan Investment Board | Parkway | 13.1 | |||||
6/28/17 |
Government Properties Income Trust | First Potomac Realty Trust | 11.4 | |||||
6/9/17 |
Digital Realty Trust | Dupont Fabros Technology | 14.9 | |||||
5/7/17 |
Sabra Health Care REIT | Care Capital Properties | 11.8 | |||||
4/24/17 |
RLJ Lodging Trust | FelCor Lodging Trust | 16.7 | |||||
2/27/17 |
Tricon Capital Group | Silver Bay Realty Trust | 19.0 | |||||
1/19/17 |
Starwood Capital Group | Milestone Apartments REIT | 9.4 | |||||
11/14/16 |
Regency Centers Corp. | Equity One | 12.8 | |||||
8/15/16 |
Mid-America Apartment Communities | Post Properties | 16.6 | |||||
4/29/16 |
Cousins Properties | Parkway Properties | 13.0 | |||||
1/19/16 |
Brookfield Asset Management | Rouse Properties | 35.3 | |||||
12/15/15 |
DRA Advisors | Inland Real Estate Corporation | 6.6 | |||||
12/3/15 |
American Homes 4 Rent | American Residential Properties | 8.7 | |||||
10/16/15 |
Harrison Street Real Estate Capital | Campus Crest Communities | 23.4 | |||||
10/8/15 |
Blackstone Group LP | Biomed Realty Trust | 23.8 | |||||
9/8/15 |
Blackstone Group LP | Strategic Hotels & Resorts | 3.7 | |||||
6/22/15 |
Lone Star Investment Advisors | Home Properties | 9.2 | |||||
4/22/15 |
Brookfield Asset Management | Associated Estates Realty | 17.4 | |||||
4/10/15 |
Blackstone Group LP | Excel Trust | 14.5 | |||||
10/31/14 |
Omega Healthcare Investors | Aviv REIT | 16.2 | |||||
9/16/14 |
Washington Prime Group | Glimcher Realty Trust | 34.1 | |||||
8/13/14 |
Health Care REIT | HealthLease Properties REIT | 31.1 | |||||
6/2/14 |
Ventas | American Realty Capital Healthcare | 13.9 | |||||
12/9/13 |
Essex Property Trust | BRE Properties | 12.1 | |||||
10/23/13 |
American Realty Capital Properties | Cole Real Estate Investments | 13.8 | |||||
6/3/13 |
Mid-America Apartment Communities, Inc. | Colonial Properties Trust | 10.7 | |||||
5/28/13 |
American Realty Capital | CapLease | 19.7 | |||||
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Date Announced
|
Acquiror | Target | Premium to Price on Undisturbed Date (%) |
|||||
|---|---|---|---|---|---|---|---|---|
4/25/13 |
Brookfield Office | MPG Office Trust | 21.2 | |||||
For the entire period, using publicly available information, Citi calculated, among other things, the 25th percentile, median, mean and 75th percentile of the premia of the price paid in the transactions relative to the closing stock prices of the target involved in the transaction on the undisturbed date. The following table presents the results of this analysis:
| |
Premia on Share Price on Undisturbed Date | |||
|---|---|---|---|---|
75th Percentile |
20.8 | % | ||
Mean |
18.1 | |||
Median |
15.3 | |||
25th Percentile |
12.3 | |||
Citi then applied a reference range of illustrative premia of 12.3% to 20.8%, reflecting the 25th percentile and 75th percentile one-day premia, to the closing price per Liberty common share on October 25, 2019, the last trading day before the public announcement of the transaction, of $50.57 to derive a range of illustrative implied values per Liberty common share of $56.78 to $61.10.
Illustrative Exchange Ratios Analysis
Based upon a comparison of the range of implied equity values for each of Liberty and Prologis calculated pursuant to the discounted cash flow analysis and public companies analysis, Citi calculated a range of implied exchange ratios for the transaction. This analysis indicated the following implied exchange ratios:
| |
Range of Implied Exchange Ratios | |||
|---|---|---|---|---|
Discounted cash flow analysis |
0.547x - 0.903x | |||
Public companies analysis |
||||
Enterprise Value / 2020E Adjusted EBITDA |
0.651x - 1.135x | |||
Price / 2020E FFO |
0.673x - 1.040x | |||
Price / 2020E AFFO |
0.524x - 0.998x | |||
Premium (Discount) to NAV |
0.606x - 1.074x | |||
Citi then compared the range of implied exchange ratios above to the exchange ratio of 0.675x provided for in the transaction.
Certain Additional Information
Combined Company DCF Analysis. Citi performed a discounted cash flow analysis of the Combined Company (including synergies and estimated transaction costs) by calculating the estimated present value of the unlevered, after-tax free cash flows that the Combined Company was expected to generate during the period from October 1, 2019 through December 31, 2024. For purposes of its analysis, the estimated terminal value of the Combined Company was calculated by applying a selected range of Adjusted EBITDA multiples of 22.1x to 26.1x, selected based on Citi's professional judgment to the Combined Company's estimated terminal year Adjusted EBITDA of $4,167 million. The forecasted unlevered, after-tax free cash flows for the Combined Company and the derived terminal values were then discounted to present values, as of September 30, 2019, using discount rates ranging from 6.44% to 7.38% based upon an analysis of the Combined Company's weighted average cost of capital, which Citi performed utilizing the capital asset pricing model with inputs that Citi determined were relevant based on publicly available data and Citi's professional judgment.
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Based on the above-described analysis, Citi derived a range of implied values per share for the Combined Company which, as of September 30, 2019 and assuming a pro forma ownership of approximately 14.3% of the holders of Liberty common shares in the Combined Company, resulted in an implied value per Liberty common share of $49.28 to $62.78 and compared this range with the implied value per Liberty common share for the Company stand-alone analysis of $48.95 to $63.37 referenced above.
Other Financial Factors. Citi also observed certain additional factors regarding Liberty that were not considered part of Citi's financial analyses with respect to its opinion but were referenced for informational purposes, including the following:
- •
- historical trading prices of Liberty common shares and shares of Prologis common stock during the 52-week period ended October 25, 2019,
which indicated low to high closing prices during such period of approximately $40.15 to $53.39 per Liberty common share and $55.21 to $92.49 per share of Prologis common stock;
- •
- undiscounted publicly available Wall Street research analysts' price targets for Liberty common shares, which indicated standalone price
targets of $50.00 to $57.00 per Liberty common share and $82.00 to $105.00 per share of Prologis common stock; and
- •
- the estimated NAV of Liberty's and Prologis' assets based on publicly available Wall Street research analysts' estimates, which when calculated yielded implied per share equity value reference ranges of $49.36 to $55.85 per Liberty common share and $66.72 to $86.73 per share of Prologis common stock.
Miscellaneous
Liberty has agreed to pay Citi for its services in connection with the proposed transaction an aggregate fee of approximately $20 million, of which a part was payable upon delivery of Citi's opinion and the large majority is payable contingent upon consummation of the transaction. In addition, Liberty agreed to reimburse Citi for certain expenses, including reasonable fees and expenses of counsel, and to indemnify Citi and certain related parties against liabilities, including liabilities under federal securities laws, arising from Citi's engagement.
As the Liberty board was aware, Citi and its affiliates in the past have provided, and are currently providing, services to Liberty unrelated to the proposed transaction, for which services Citi and its affiliates have received and expect to receive compensation, including, without limitation, during the two-year period prior to the date of its opinion, having acted as (a) bookrunner on a $465 million follow-on common share issuance completed by Liberty in September 2019, (b) bookrunner in the public offering of $350 million principal amount of Liberty OP's 4.375% Senior Notes due 2029, and (c) lender under Liberty's $800 million credit facility and $100 million delayed drawn term loan facility. Citi and its affiliates received during such two-year period aggregate fees of approximately $8 million from Liberty for investment banking services. Citi and its affiliates in the past have also provided, and are currently providing, services to Prologis and its affiliates unrelated to the proposed transaction, for which services Citi and its affiliates have received and expect to receive compensation, including, without limitation, during the two-year period prior to the date of its opinion, having acted as (a) advisor to Prologis on the sale of a $1.1 billion portfolio of U.S. and European logistics assets to Mapletree Investments Pte Ltd completed in 2018, (b) co-manager on Prologis' offering of three series of notes in an aggregate principal amount of €1.8 billion in August 2019, (c) co-manager on Prologis' issuance of 0.652% Notes due 2025 in an aggregate principal amount of ¥5 billion, 0.972% Notes due 2028 in an aggregate principal amount of ¥40 billion, 1.077% Notes due 2030 in an aggregate principal amount of ¥5.1 billion, and 1.470% Notes due 2038 in an aggregate principal amount of ¥5 billion, in September 2018, (d) co-manager on Prologis' €700 million issuance of senior notes due in January 2029, in July 2018, (e) bookrunner on Prologis' offering of two series of notes in an aggregate principal
88
amount of $700 million, consisting of $400 million aggregate principal amount of 3.875% notes due September 15, 2028, and $300 million aggregate principal amount of 4.375% notes due September 15, 2048, in June 2018, (f) bookrunner on Prologis' £500 million issuance of senior notes with an interest rate of 2.3%, maturing in June 2029, (g) lender under Prologis' $3.5 billion global senior credit facility, and (h) lender under Prologis' $500 million senior term loan facility. Citi and its affiliates received during such two-year period aggregate fees of approximately $16 million from Prologis for investment banking services. In the ordinary course of its business, Citi and its affiliates may actively trade or hold the securities of Liberty and Prologis for its own account or for the account of its customers and, accordingly, may at any time hold a long or short position in such securities. In addition, Citi and its affiliates (including Citigroup Inc. and its affiliates) may maintain relationships with Liberty, Prologis and their respective affiliates.
Liberty selected Citi to act as its financial advisor in connection with the proposed transaction based on Citi's reputation, experience and familiarity with Liberty, Prologis and their respective businesses. Citi is an internationally recognized investment banking firm that regularly engages in the valuation of businesses and their securities in connection with mergers and acquisitions, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes.
Certain Prologis Unaudited Prospective Financial Information
Although Prologis periodically may issue limited financial guidance to investors, Prologis does not as a matter of course make public long-term projections as to future revenues, earnings, EBITDA, funds from operations, funds from operations, as adjusted, or other results due to, among other reasons, the uncertainty of the underlying assumptions and estimates. However, in connection with the mergers and the other transactions contemplated by the merger agreement, Prologis' management provided to management of Liberty in connection with its evaluation of the mergers and the other transactions contemplated by the merger agreement, and to Liberty's financial advisors, Goldman Sachs and Citi, certain unaudited prospective financial information regarding Prologis' operations for fiscal years 2019 through 2022 (the "Prologis management forecasts"). The below summary of the Prologis management forecasts is included for the purpose of providing Liberty shareholders access to certain non-public information that was furnished to certain parties in connection with the mergers and such information may not be appropriate for other purposes, and is not included to influence the voting decision of any Liberty shareholder.
The Prologis management forecasts were not prepared with a view toward public disclosure, 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 financial projections. The inclusion of the Prologis management forecasts should not be regarded as an indication that such information is predictive of actual future events or results and such information should not be relied upon as such, and readers of this proxy statement/prospectus are cautioned not to place undue reliance on the Prologis management forecasts. The Prologis management forecasts included in this proxy statement/prospectus have been prepared by, and are the responsibility of, Prologis' management.
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While presented with numeric specificity, the unaudited prospective financial information set forth below was based on numerous variables and assumptions (including assumptions related to industry performance and general business, economic, market and financial conditions and additional matters specific to Prologis' business) that are inherently subjective and uncertain and are beyond the control of Prologis' management. Important factors that may affect actual results and cause this unaudited prospective financial information not to be achieved include, but are not limited to, risks and uncertainties relating to Prologis' business (including its ability to achieve strategic goals, objectives and targets over applicable periods), industry performance, general business and economic conditions and other factors described in the sections of this proxy statement/prospectus entitled "Cautionary Statement Regarding Forward-Looking Statements" and "Risk Factors." This unaudited prospective financial information also reflects numerous variables, expectations and assumptions available at the time they were prepared as to certain business decisions that are subject to change. As a result, actual results may differ materially from those contained in this unaudited prospective financial information. Accordingly, there can be no assurance that the projected results summarized below will be realized. Liberty shareholders are urged to review the most recent SEC filings of Prologis for a description of the reported and anticipated results of operations and financial condition and capital resources, including in "Management's Discussion and Analysis of Financial Condition and Results of Operations" in Prologis' Annual Report on Form 10-K for the year ended December 31, 2018 and the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, which are incorporated by reference into this proxy statement/prospectus.
None of Liberty, Prologis or their respective officers, trustees, directors, affiliates, advisors or other representatives can give you any assurance that actual results will not differ materially from this unaudited prospective financial information.
PROLOGIS UNDERTAKES NO OBLIGATION TO UPDATE OR OTHERWISE REVISE OR RECONCILE THE BELOW UNAUDITED PROSPECTIVE FINANCIAL INFORMATION TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE THIS UNAUDITED PROSPECTIVE FINANCIAL INFORMATION WAS GENERATED OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS, EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING SUCH INFORMATION ARE SHOWN TO BE IN ERROR. SINCE THE UNAUDITED PROSPECTIVE FINANCIAL INFORMATION COVERS MULTIPLE YEARS, SUCH INFORMATION BY ITS NATURE BECOMES LESS PREDICTIVE WITH EACH SUCCESSIVE YEAR.
Liberty and Prologis may calculate certain non-GAAP financial metrics, including Adjusted EBITDA, FFO, AFFO and unlevered free cash flow ("FCF") using different methodologies. Consequently, the financial metrics presented in each company's prospective financial information disclosures and in the sections of this proxy statement/prospectus with respect to the opinions of Liberty's financial advisors to Liberty may not be directly comparable to one another. Further, these financial metrics are "non-GAAP financial measures" as set forth in Item 10(e) of Regulation S-K and should not be considered as alternatives to net income (determined in accordance with GAAP) or as an indication of Prologis' performance. None of these non-GAAP measures represents cash generated from operating activities determined in accordance with GAAP, and none are a measure of liquidity or an indicator of Prologis' ability to make cash distributions.
Prologis has not made and makes no representation to Liberty or any Liberty shareholder, in the merger agreement or otherwise, concerning the below unaudited prospective financial information or regarding Prologis' ultimate performance compared to the unaudited prospective financial information or that the projected results will be achieved. In light of the foregoing factors and the uncertainties inherent in the unaudited prospective financial information, Prologis urges all Liberty shareholders not to place undue reliance on such information and to review Prologis' most recent SEC filings for a description of Prologis' reported financial results.
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Neither KPMG LLP nor any other registered public accounting firm has compiled, examined or performed any audit or other procedures with respect to the unaudited prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability. The report of KPMG LLP contained in Prologis' Form 10-K for the year ended December 31, 2018, which is incorporated by reference into this prospectus/proxy statement, relates to the historical financial information of Prologis. It does not extend to the unaudited prospective financial information and should not be read to do so. Furthermore, the unaudited prospective financial information does not take into account any circumstances or events occurring after the dates on which it was prepared.
The Prologis management forecasts were based on numerous variables and assumptions, including the following: general and administrative average expense growth of 2.5% per year for the projected period, Prologis share of building acquisitions of approximately $700 million - $900 million per year, approximately $2.0 - $2.4 billion of Prologis share of development starts per year, approximately $1.8 - $2.5 billion of Prologis share of assumed dispositions and contributions combined beginning in calendar year 2020, and no equity issuances in the pro forma period, except for the shares issued in conjunction with the mergers.
The Prologis management forecasts were provided to management of Liberty and Liberty's financial advisors, Goldman Sachs and Citi. The following table presents a summary of the Prologis management forecasts for the calendar years 2019 through 2022 for Prologis on a standalone basis.
| |
Year Ending December 31, | ||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
2019E | 2020E | 2021E | 2022E | |||||||||
| |
(in millions) |
||||||||||||
Consolidated Net Earnings |
$ | 1,884 | $ | 1,461 | $ | 1,530 | $ | 1,672 | |||||
Adjusted EBITDA(1) |
$ | 2,637 | $ | 2,964 | $ | 3,126 | $ | 3,311 | |||||
Core FFO(2) |
$ | 2,166 | $ | 2,345 | $ | 2,494 | $ | 2,672 | |||||
AFFO Excluding Gains(3) |
$ | 1,857 | $ | 2,035 | $ | 2,164 | $ | 2,309 | |||||
- (1)
- Adjusted
EBITDA as used by Prologis is a non-GAAP measure and is calculated beginning with consolidated net earnings attributable to common stockholders and removing
the effect of: interest expense, income taxes, depreciation and amortization, impairment charges, gains or losses from the disposition of investments in real estate, gains from the revaluation of
equity investments upon acquisition of a controlling interest, gains or losses on early extinguishment of debt and derivative contracts (including cash charges), similar adjustments made to Prologis'
FFO measures, and other items, such as, stock based compensation and unrealized gains or losses on foreign currency and derivatives.
- (2)
- For
a definition of Core FFO, see "Selected Historical Financial Information of Prologis—Funds From Operations Attributable to Common
Stockholders/Unitholders."
- (3)
- AFFO Excluding Gains excludes realized gains from the disposition of land and development properties and is derived by adjusting Core FFO to include recurring capital expenditures and exclude the following items that Prologis recognizes directly in Core FFO: (i) straight-line rents; (ii) amortization of above- and below-market lease intangibles; (iii) amortization of management contracts; (iv) amortization of debt premiums and discounts and financing costs, net of amounts capitalized; and (v) stock compensation expense.
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Certain Liberty Unaudited Prospective Financial Information
Although Liberty periodically may issue limited financial guidance to investors, Liberty does not as a matter of course make public long-term projections as to future revenues, earnings, EBITDA, funds from operations, funds from operations, as adjusted, or other results due to, among other reasons, the uncertainty of the underlying assumptions and estimates. However, in connection with the mergers and the other transactions contemplated by the merger agreement, Liberty's management prepared and provided to the Liberty board in connection with its evaluation of the mergers and the other transactions contemplated by the merger agreement, and to its financial advisors, Goldman Sachs and Citi, including in connection with their respective financial analyses described above under the section entitled "—Opinions of Liberty's Financial Advisors," the Liberty management forecasts. In preparing the Liberty management forecasts, Liberty's management considered information communicated by Prologis and certain operating synergies that Liberty's management projected to result from the transaction. The below summary of the Liberty management forecasts is included for the purpose of providing Liberty shareholders access to certain nonpublic information that was furnished to certain parties in connection with the mergers and such information may not be appropriate for other purposes, and is not included to influence the voting decision of any Liberty shareholder.
The Liberty management forecasts were not prepared with a view toward public disclosure, 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 financial projections. The inclusion of the Liberty management forecasts should not be regarded as an indication that such information is predictive of actual future events or results and such information should not be relied upon as such, and readers of this proxy statement/prospectus are cautioned not to place undue reliance on the Liberty management forecasts. The Liberty management forecasts included in this proxy statement/prospectus have been prepared by, and are the responsibility of, Liberty's management.
While presented with numeric specificity, the unaudited prospective financial information set forth below was based on numerous variables and assumptions (including assumptions related to industry performance and general business, economic, market and financial conditions and additional matters specific to Liberty's business, Prologis' business and the business of the Combined Company on a pro forma basis giving effect to the transaction) that are inherently subjective and uncertain and are beyond the control of Liberty's management. Important factors that may affect actual results and cause this unaudited prospective financial information not to be achieved include, but are not limited to, risks and uncertainties relating to Liberty's business, Prologis' business and the business of the Combined Company on a pro forma basis giving effect to the transaction (including its ability to achieve strategic goals, objectives and targets and to achieve operating synergies over applicable periods), industry performance, general business and economic conditions and other factors described in the sections entitled "Cautionary Statement Regarding Forward-Looking Statements" and "Risk Factors." This unaudited prospective financial information also reflects numerous variables, expectations and assumptions available at the time they were prepared as to certain business decisions that are subject to change. As a result, actual results may differ materially from those contained in this unaudited prospective financial information. Accordingly, there can be no assurance that the projected results summarized below will be realized. Liberty shareholders are urged to review the most recent SEC filings of both Liberty and Prologis for descriptions of the reported and anticipated results of operations and financial condition and capital resources, including in (i) "Management's Discussion and Analysis of Financial Condition and Results of Operations" in Liberty's Annual Report on Form 10-K for the year ended December 31, 2018 (and, to the extent revised, in the exhibits to Liberty's Current Report on Form 8-K filed with the SEC on November 25, 2019) and the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, which are incorporated by reference into this proxy statement/prospectus, and (ii) in "Management's Discussion
92
and Analysis of Financial Condition and Results of Operations" in Prologis' Annual Report on Form 10-K for the year ended December 31, 2018 and the Quarterly Reports on Form 10-Q for the quarters ended March 31, 2019, June 30, 2019 and September 30, 2019, which are incorporated by reference into this proxy statement/prospectus.
None of Liberty, Prologis or their respective officers, trustees, directors, affiliates, advisors or other representatives can give you any assurance that actual results will not differ materially from this unaudited prospective financial information.
LIBERTY UNDERTAKES NO OBLIGATION TO UPDATE OR OTHERWISE REVISE OR RECONCILE THE BELOW UNAUDITED PROSPECTIVE FINANCIAL INFORMATION TO REFLECT CIRCUMSTANCES EXISTING AFTER THE DATE THIS UNAUDITED PROSPECTIVE FINANCIAL INFORMATION WAS GENERATED OR TO REFLECT THE OCCURRENCE OF FUTURE EVENTS, EVEN IN THE EVENT THAT ANY OR ALL OF THE ASSUMPTIONS UNDERLYING SUCH INFORMATION ARE SHOWN TO BE IN ERROR. SINCE THE UNAUDITED PROSPECTIVE FINANCIAL INFORMATION COVERS MULTIPLE YEARS, SUCH INFORMATION BY ITS NATURE BECOMES LESS PREDICTIVE WITH EACH SUCCESSIVE YEAR.
Liberty and Prologis may calculate certain non-GAAP financial metrics, including net operating income, Adjusted EBITDA, FFO and AFFO using different methodologies. Consequently, the financial metrics presented in each company's prospective financial information disclosures and in the sections of this proxy statement/prospectus with respect to the opinion of Liberty's financial advisor to Liberty may not be directly comparable to one another. Further, these financial metrics are "non-GAAP financial measures" as set forth in Item 10(e) of Regulation S-K and should not be considered as alternatives to net income (determined in accordance with GAAP) or as an indication of Liberty's or the Combined Company's performance. None of these non-GAAP measures represents cash generated from operating activities determined in accordance with GAAP, and none are a measure of liquidity or an indicator of Liberty's or the Combined Company's ability to make cash distributions.
Liberty has not made and makes no representation to Prologis or any Liberty shareholder, in the merger agreement or otherwise, concerning the below unaudited prospective financial information or regarding the ultimate performance of Liberty, Prologis or the Combined Company on a pro forma basis giving effect to the transaction compared to the unaudited prospective financial information or that the projected results will be achieved. In light of the foregoing factors and the uncertainties inherent in the unaudited prospective financial information, Liberty urges all Liberty shareholders not to place undue reliance on such information and to review Liberty's and Prologis' most recent SEC filings for descriptions of their respective reported financial results.
Neither Ernst & Young LLP nor any other independent registered public accounting firm has compiled, examined or performed any audit or other procedures with respect to the unaudited prospective financial information contained herein, nor have they expressed any opinion or any other form of assurance on such information or its achievability. The report of Ernst & Young LLP contained in Liberty's Current Report on Form 8-K filed with the SEC on November 25, 2019, which is incorporated by reference into this prospectus/proxy statement, relates to the historical financial information of Liberty. It does not extend to the unaudited prospective financial information and should not be read to do so. Furthermore, the unaudited prospective financial information does not take into account any circumstances or events occurring after the dates on which it was prepared.
The portion of the Liberty management forecasts relating to Liberty (on a standalone basis) were based on numerous variables and assumptions made by Liberty management, including the following: net operating income growth rate of 3% per year for stabilized same-store industrial properties and non-stabilized industrial properties, and 1% for stabilized same-store office properties; acquisitions of approximately $50 million per year, at a capitalization rate of 4.5%, which stabilizes in the quarter after
93
the acquisition; dispositions of approximately $200 million per year, with a capitalization rate of 5.5%; $375 million of developments per year, with a yield of 6.0% and properties delivered six quarters after development is commenced and stabilizing in the seventh quarter thereafter; the issuance of senior notes at an annual interest rate of 4.375% after the balance on the Liberty revolving credit facility reaches $400 million; no equity issuances beyond calendar year 2019; a 75% AFFO payout ratio; and general and administrative expense growth of 2.0% per year for the projected period.
The portion of the Liberty management forecasts relating to Prologis (on a standalone basis) were, for the period from October 1, 2019 through December 31, 2022, prepared by Liberty management based on forecasts provided by Prologis management, as adapted by Liberty management to present certain measures in accordance with Liberty's methodology for determining such measures, and for the period from January 1, 2023 through December 31, 2024, prepared by Liberty management based on guidance provided by Prologis management, as developed by Liberty management for the purpose of evaluating the transaction. Additionally, the portion of the Liberty management forecasts relating to Prologis (on a standalone basis) were based on numerous variables and assumptions made by Liberty management (based in part on information communicated by Prologis), including the following: total net operating income growth rate of 10.7% for 2020, 8.8% for 2021 and 6.0% for 2022, with same-store net operating income growth at 4.75% to 5% per year for such period and 4.0% per year for 2023 and 2024; acquisitions of $2.4 billion for 2020, $1.1 billion for 2021 and $860 million for 2022, at capitalization rates for stabilized assets from 4.5% to 5.1%, and of $850 million for each of 2023 and 2024, at a 5.1% capitalization rate; developments of $2.0 billion for 2020 and 2021 and $1.8 billion for 2022, with stabilized yields of 5.6% to 5.8%, and of $1.7 billion for each of 2023 and 2024, at a 5.8% yield and properties delivered 14 months after development is commenced and stabilizing in the 20th month thereafter; the issuance of $4.7 billion in senior notes during the period from 2020 through 2022, and $1.0 billion in each of 2023 and 2024, all at an annual interest rate of 3.0%; a 75% AFFO (excluding gains on sale) payout ratio; fee and promote revenue from the management of assets for third parties that was approximately $380 million for 2019, growing at a combined annual growth rate of 9.0% for the period from 2020 through 2022 and of 5.1% per year for 2023 and 2024; and general and administrative expense growth of 2.5% per year for the projected period.
The portion of the Liberty management forecasts relating to the Combined Company (on a pro forma basis giving effect to the transaction) were based on numerous variables and assumptions made by Liberty management (based in part on information communicated by Prologis), including the following: an assumed closing date for the company mergers of September 30, 2019; the issuance by Prologis of 109.3 million shares of Prologis common stock as merger consideration; the assumption by Prologis of $400 million of Liberty OP's 3.250% Senior Notes due 2026 and of $350 million of Liberty OP's 4.375% Senior Notes due 2029, marked to market at Prologis' cost of capital; the refinancing by Prologis of all other Liberty debt, at a 3.0% blended interest rate, resulting in an interest saving of $12-$18 million per year; $320 million of transaction costs funded with new indebtedness; pro forma FFO and AFFO based on the sum of Liberty and Prologis standalone FFO and AFFO adjusted to include projected general and administrative expense synergies of $60 million per year and financing synergies reflected in the above assumptions (excluding amortization of debt premiums in the case of AFFO), less interest of debt raised to fund transaction costs; pro forma adjusted EBITDA based on the sum of Liberty and Prologis standalone adjusted EBITDA amounts and adjusted to include projected synergies of $60 million per year; pro forma unlevered FCF based on the sum of Liberty and Prologis standalone unlevered FCF and adjusted to include projected synergies of $60 million per year; and a 75% AFFO payout ratio. The Liberty management forecasts were provided to the Liberty board and Liberty's financial advisors, Goldman Sachs and Citi.
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Liberty on a Standalone Basis
The following table presents a summary of the Liberty management forecasts relating to Liberty (on a standalone basis) for the calendar years 2019 through 2024.
| |
Year Ending December 31, | ||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (in millions, except per share data) |
2019E | 2020E | 2021E | 2022E | 2023E | 2024E | |||||||||||||
Total Net Operating Income(1) |
$ | 528 | $ | 539 | $ | 574 | $ | 614 | $ | 650 | $ | 684 | |||||||
Adjusted EBITDA(2) |
$ | 493 | $ | 508 | $ | 541 | $ | 574 | $ | 604 | $ | 637 | |||||||
FFO(3) |
$ | 399 | $ | 425 | $ | 457 | $ | 484 | $ | 502 | $ | 525 | |||||||
FFO/Share(4) |
$ | 2.58 | $ | 2.64 | $ | 2.83 | $ | 3.00 | $ | 3.11 | $ | 3.25 | |||||||
AFFO(5) |
$ | 327 | $ | 360 | $ | 388 | $ | 411 | $ | 424 | $ | 444 | |||||||
Dividend/Share |
$ | 1.64 | $ | 1.67 | $ | 1.80 | $ | 1.91 | $ | 1.97 | $ | 2.06 | |||||||
- (1)
- Net
operating income as used by Liberty is a non-GAAP measure and is defined as rental and operating expense reimbursements less property and real estate tax
expenses from real estate operations.
- (2)
- Adjusted
EBITDA as used by Liberty is a non-GAAP measure and is defined as net income, after adjusting for depreciation and amortization expense, interest expense,
impairment charges and the effect of other non-cash items, debt extinguishment gains (losses), gains (losses) on property dispositions and income tax expense (benefit), as applicable.
- (3)
- For
a definition of FFO, or Funds from Operations, see "Selected Historical Financial Information of Liberty—Funds from Operations of Liberty."
- (4)
- Based
on projected weighted average diluted shares of stock.
- (5)
- AFFO, or FFO, as adjusted, as used by Liberty is a non-GAAP measure and is defined as FFO less Capital Expenditures—Turnover Costs and Capital Expenditures—Property Improvements, and after adjusting for the impact of straight-line rents adjustments, share-based compensation expense, impairment charges and the effect of other non-cash items, gains (losses) on sales of non-depreciable assets, and debt extinguishment gains (losses), as applicable.
The following table presents a summary of the unlevered FCF for Liberty (on a standalone basis) for the quarter ending December 31, 2019 and the calender years 2020 through 2024.
Unlevered FCF for Liberty was arithmetically derived from the Liberty management forecasts relating to Liberty in the above table prepared and provided by Liberty management to Goldman Sachs and Citi and approved by Liberty for use by Goldman Sachs and Citi.
| |
|
Year Ending December 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
Q4 2019E |
||||||||||||||||||
| |
2020E | 2021E | 2022E | 2023E | 2024E | ||||||||||||||
| |
(in millions) |
||||||||||||||||||
Unlevered FCF(1) |
$ | 236 | $ | 201 | $ | 231 | $ | 259 | $ | 285 | $ | 314 | |||||||
- (1)
- Unlevered FCF was determined by making adjustments (including straight-line rent adjustments, income taxes, capital expenditures, dispositions, acquisitions and development) to Adjusted EBITDA.
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Prologis on a Standalone Basis
The following table presents a summary of the Liberty management forecasts relating to Prologis (on a standalone basis) for the calendar years 2019 through 2024.
| |
Year Ending December 31, | ||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (in millions, except per share data) |
2019E | 2020E | 2021E | 2022E | 2023E | 2024E | |||||||||||||
Total Net Operating Income(1) |
$ | 2,103 | $ | 2,350 | $ | 2,540 | $ | 2,664 | $ | 2,763 | $ | 2,895 | |||||||
Adjusted EBITDA(1) |
$ | 2,353 | $ | 2,623 | $ | 2,796 | $ | 2,985 | $ | 3,131 | $ | 3,316 | |||||||
FFO(1) |
$ | 2,166 | $ | 2,345 | $ | 2,494 | $ | 2,672 | $ | 2,805 | $ | 2,969 | |||||||
FFO/Share(1) |
$ | 3.31 | $ | 3.57 | $ | 3.78 | $ | 4.04 | $ | 4.24 | $ | 4.49 | |||||||
AFFO(1) |
$ | 1,857 | $ | 2,035 | $ | 2,164 | $ | 2,309 | $ | 2,405 | $ | 2,528 | |||||||
Dividend/Share |
$ | 2.12 | $ | 2.32 | $ | 2.48 | $ | 2.64 | $ | 2.73 | $ | 2.86 | |||||||
- (1)
- See definitions of terms in the footnotes to the above table regarding the Liberty management forecasts relating to Liberty (on a standalone basis) for the calendar years 2019 through 2024.
The following table presents a summary of the unlevered FCF for Prologis (on a standalone basis) for the quarter ending December 31, 2019 and the calendar years 2020 through 2024.
Unlevered FCF for Prologis was arithmetically derived from the Liberty management forecasts relating to Prologis in the above table prepared and provided by Liberty management to Goldman Sachs and Citi and approved by Liberty for use by Goldman Sachs and Citi.
| |
|
Year Ending December 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
Q4 2019E |
||||||||||||||||||
| |
2020E | 2021E | 2022E | 2023E | 2024E | ||||||||||||||
| |
(in millions) |
||||||||||||||||||
Unlevered FCF(1) |
$ | 143 | $ | (509 | ) | $ | 1,382 | $ | 1,687 | $ | 1,853 | $ | 1,995 | ||||||
- (1)
- See definition of term in the footnote to the above table regarding Liberty's estimated unlevered FCF.
Combined Company on a Pro Forma Basis Giving Effect to the Transaction
The following table presents a summary of the Liberty management forecasts relating to the Combined Company (on a pro forma basis giving effect to the transaction) for the calendar years 2019 through 2024.
| |
Year Ending December 31, | ||||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| (in millions, except per share data) |
2019E | 2020E | 2021E | 2022E | 2023E | 2024E | |||||||||||||
Total Net Operating Income(1) |
$ | 2,631 | $ | 2,889 | $ | 3,114 | $ | 3,277 | $ | 3,413 | $ | 3,579 | |||||||
Adjusted EBITDA(1) |
$ | 2,862 | $ | 3,190 | $ | 3,398 | $ | 3,619 | $ | 3,796 | $ | 4,013 | |||||||
FFO(1) |
$ | 2,585 | $ | 2,846 | $ | 3,024 | $ | 3,229 | $ | 3,385 | $ | 3,573 | |||||||
FFO/Share(1) |
$ | 3.37 | $ | 3.70 | $ | 3.92 | $ | 4.18 | $ | 4.37 | $ | 4.62 | |||||||
AFFO(1) |
$ | 2,202 | $ | 2,461 | $ | 2,615 | $ | 2,782 | $ | 2,898 | $ | 3,040 | |||||||
Dividend/Share |
$ | 1.95 | $ | 2.40 | $ | 2.55 | $ | 2.70 | $ | 2.81 | $ | 2.95 | |||||||
- (1)
- See definitions of terms in the footnotes to the above table regarding the Liberty management forecasts relating to Liberty (on a standalone basis) for the calendar years 2019 through 2024.
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The following table presents a summary of the unlevered FCF for the Combined Company (on a pro forma basis giving effect to the transaction) for the quarter ending December 31, 2019 and the calendar years 2020 through 2024.
Unlevered FCF for the Combined Company was arithmetically derived from the Liberty management forecasts relating to the Combined Company in the above table prepared and provided by Liberty's management to Goldman Sachs and Citi and approved by Liberty for use by Goldman Sachs and Citi.
| |
|
Year Ending December 31, | |||||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| |
Q4 2019E |
||||||||||||||||||
| |
2020E | 2021E | 2022E | 2023E | 2024E | ||||||||||||||
| |
(in millions) |
||||||||||||||||||
Unlevered FCF(1) |
$ | 394 | $ | (248 | ) | $ | 1,673 | $ | 2,006 | $ | 2,198 | $ | 2,369 | ||||||
- (1)
- See definition of term in the footnote to the above table regarding Liberty's estimated unlevered FCF.
Interests of Liberty's Trustees and Named Executive Officers in the Mergers
The interests of Liberty's trustees and named executive officers in the mergers that are different from, or in addition to, those of Liberty's shareholders generally are described below. The Liberty board was aware of and considered these interests, among other matters, in evaluating and negotiating the merger agreement and the mergers, and in making the recommendations set forth in this proxy statement/prospectus, including its recommendation that the Liberty shareholders vote FOR the proposal to approve the company mergers on the terms and conditions set forth in the merger agreement. These interests include:
- •
- accelerated vesting and settlement of all outstanding equity awards, with 2018 and 2019 performance-based awards (and 2017 performance-based
awards, if the closing of the mergers occurs in 2019) vesting based on actual performance as of the consummation of the Topco merger;
- •
- payment of 2019 annual cash incentives in December 2019, assuming maximum performance;
- •
- entitlement to severance benefits under the Senior Officer Severance Plan covering Liberty's named executive officers upon a qualifying
termination of employment; and
- •
- entitlement to continued indemnification, expense advancement and insurance coverage under indemnification agreements and the merger agreement.
Treatment of the Liberty Equity Awards
Conversion into New Liberty Holdco Equity Awards. As of the Liberty merger effective time, each Liberty equity award outstanding immediately prior to the Liberty merger effective time shall automatically be converted into an equivalent equity award relating to an equal number of New Liberty Holdco common shares and will otherwise be subject to all of the same terms and conditions (including per share exercise price, if applicable) that applied to such Liberty equity award immediately prior to the Liberty merger effective time.
Liberty Restricted Stock Awards. Immediately prior to the Topco merger effective time, any and all outstanding issuance and forfeiture conditions on any New Liberty Holdco common shares subject to Liberty restricted stock awards shall be deemed satisfied in full, contingent upon the consummation of the Topco merger, and the holders of such New Liberty Holdco common shares will be entitled to receive promptly after the Topco merger effective time the merger consideration in respect of each
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such New Liberty Holdco common share, plus any fractional share consideration that such holder has the right to receive pursuant to the merger agreement, less applicable taxes and withholdings.
Liberty Restricted Stock Unit Awards. Each Liberty restricted stock unit award that is outstanding immediately prior to the Topco merger effective time shall vest in full and shall, as of the Topco merger effective time, be canceled in exchange for the right of the holder thereof to receive promptly after the Topco merger effective time a number of shares of Prologis common stock (or, in the case of a restricted stock unit award that is payable solely in cash by its terms, an amount in cash equal to the Prologis VWAP multiplied by a number of shares of Liberty common shares) equal to the product, rounded down to the nearest whole number of shares, of (i) the number of New Liberty Holdco common shares subject to such Liberty restricted stock unit award immediately prior to the Topco merger effective time multiplied by (ii) the exchange ratio, plus any fractional share consideration that such holder has the right to receive pursuant to the merger agreement, less applicable taxes and withholdings. For this purpose, the number of shares shall be determined, in the case of a Liberty restricted stock unit award that is subject to performance-based vesting conditions immediately prior to the Topco merger effective time, by deeming the applicable performance conditions to be achieved based upon the actual level of achievement of the applicable performance conditions through the date that is the day immediately prior to the Topco merger effective time (except that, in the case of an award granted in 2017, if the Topco merger effective time occurs on or after January 1, 2020, then the applicable performance conditions shall be deemed achieved at the actual level of achievement during the completed performance period).
Liberty Stock Options. At the Topco merger effective time, each outstanding and unexercised Liberty stock option will terminate and will be converted into the right of the holder thereof to receive promptly after the Topco merger effective time a number of shares of Prologis common stock, determined as of the Topco merger effective time, equal to the quotient, rounded down to the nearest whole number of shares, of (i)(A) the number of New Liberty Holdco common shares that were subject to such option immediately prior to the Topco merger effective time, multiplied by (B) the excess, if any, of the value of the merger consideration (which, for this purpose, equals the product of the exchange ratio, multiplied by the Prologis VWAP) over the per share exercise price of the Liberty stock option, divided by (ii) the Prologis VWAP, plus any fractional share consideration that such holder has the right to receive pursuant to the merger agreement, less applicable taxes and withholdings.
For more information on the equity holdings of Liberty's trustees and named executive officers, see the table entitled "The Mergers—Security Ownership of Liberty's Trustees and Executive Officers and Current Beneficial Owners" beginning on page 102.
2019 Annual Cash Incentives
Liberty will pay an annual cash incentive to each of its named executive officers for 2019, based on maximum performance, assuming their continued employment through the payment date. The annual cash incentives will be paid to Liberty's named executive officers in December 2019.
The table below sets forth the annual cash incentive payment for each Liberty named executive officer, assuming continued employment through the payment date:
Name
|
Cash Incentive Payment |
|||
|---|---|---|---|---|
William P. Hankowsky |
$ | 2,226,564 | ||
Christopher J. Papa |
$ | 850,408 | ||
Michael T. Hagan |
$ | 833,000 | ||
Herman C. Fala |
$ | 716,040 | ||
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The amount of the annual cash incentive payable to each Liberty named executive officer for 2019 may be more than the amount of the annual cash incentive that the named executive officer otherwise would have earned for such period in the absence of the company mergers.
Liberty Named Executive Officer Post-Termination and Change in Control Arrangements
Liberty maintains the Senior Officer Severance Plan for a group of senior officers of Liberty, including the named executive officers. The severance plan applies in the event of termination in connection with a change of control. The consummation of the mergers constitutes a change of control for purposes of the Senior Officer Severance Plan.
Pursuant to the Senior Officer Severance Plan, if within six months prior to a change of control or two years following a change of control an executive's employment is terminated by Liberty or its successor (other than termination for cause) or the executive terminates his employment in certain circumstances defined in the agreement which constitute "good reason" the executive will receive:
- •
- a lump sum severance payment equal to a multiple times the executive's current annual base salary and target bonus (the multiple is 3X for
Mr. Hankowsky and 2X for the other named executive officers);
- •
- a lump sum amount representing a pro rata portion, through the date of termination, of unpaid performance bonus for the year in which the
termination occurs, based on the average of prior years' bonuses or, for recent hires, target bonus;
- •
- a lump sum payment in the sum of $10,000 in lieu of continued coverage under Liberty's term life insurance policies, plus 1.5x an amount
calculated to approximate the additional cost of medical and dental premiums incurred by the officer over an 18-month period as the result of being ineligible to participate as an employee in
Liberty's health insurance plans; and
- •
- automatic vesting of all options, restricted shares and restricted stock units held by the executive, with vesting of as-yet-unearned performance-based restricted stock units based on actual performance.
If any payments and benefits to be paid or provided to a named executive officer, whether pursuant to the terms of Senior Officer Severance Plan or otherwise, would be subject to "golden parachute" excise taxes under the Code, the named executive officer's payments and benefits will be reduced to the extent necessary to avoid such excise taxes, but only if such a reduction of pay or benefits would result in a greater after-tax benefit to the named executive officer.
In connection with the mergers, the Senior Officer Severance Plan was amended and restated. Among other things, the amendments to the Senior Officer Severance Plan:
- •
- expand the definition of good reason such that the participant will have "good reason" to terminate employment in connection with a change in
control, and will receive severance, if the participant's annual total target compensation (including base salary, annual incentive and long-term incentive, rather than only base salary, as provided
by the Senior Officer Severance Plan prior to the amendment and restatement) is materially reduced; and
- •
- provide that upon a qualifying termination under the Senior Officer Severance Plan, the participant's performance-based restricted stock units will vest based on actual performance as of the date of the change of control, rather than based on target performance, as provided by the Senior Officer Severance Plan prior to the amendment and restatement.
For an estimate of the value of the payments and benefits described above that would become payable to Liberty's named executive officers in the event of a qualifying termination of employment without cause or for good reason in connection with the mergers, see "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers—Information for Advisory Vote" and the assumptions set forth under that subheading, below.
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Entitlement to Continued Indemnification, Expense Advancement and Insurance Coverage
From and after the Topco merger effective time, pursuant to the terms of the merger agreement and subject to certain limitations, Prologis is required to, for a period of six years from the Topco merger effective time, indemnify and hold harmless each person who is, or was, on the date of the merger agreement or at any time prior thereto or any time between the date of the merger agreement and the Topco merger effective time, serving as, among others, manager, director, officer, trustee or fiduciary of Liberty or any of its subsidiaries (including New Liberty Holdco), in connection with any claim with respect to matters occurring on or before the Topco merger effective time and any losses, claims, damages, liabilities, costs, claim expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of any thereof) relating to or resulting from such claim, to the fullest extent that a Maryland corporation is permitted to indemnify and hold harmless its own such persons or entities under the applicable laws of the State of Maryland, as in effect on the date of the merger agreement or thereafter in effect. Prologis is also required to promptly pay on behalf of or advance to each of the indemnified parties, to the fullest extent that a Maryland corporation is permitted to indemnify and hold harmless its own such persons or entities under the applicable laws of the State of Maryland, as now or hereafter in effect, any claim expenses incurred in defending, serving as a witness with respect to or otherwise participating with respect to any claim in advance of the final disposition of such claim, including payment on behalf of or advancement to the indemnified party of any claim expenses incurred by such indemnified party in connection with enforcing any rights with respect to such indemnification and/or advancement, in each case without the requirement of any bond or other security, but subject to Prologis' receipt of an undertaking by or on behalf of such indemnified party to repay such claim expenses if it is ultimately determined under applicable laws or any of the Liberty governing documents that such indemnified party is not entitled to be indemnified.
Prior to the Topco merger effective time, Liberty is required to obtain and fully pay the premium for, and Prologis is required to maintain in full force and effect (and the obligations thereunder to be honored), during the six-year period beginning on the date of the Topco merger, a "tail" prepaid directors' and officers' liability insurance policy or policies (which policy or policies by their respective express terms shall survive the mergers) from Liberty's current insurance carrier or an insurance carrier with the same or better credit rating as Liberty's current insurance carrier, of at least the same coverage and amounts and containing terms and conditions, retentions and limits of liability that are no less favorable than Liberty's and its subsidiaries' existing directors' and officers' liability policy or policies for the benefit of the indemnified parties with respect to directors' and officers' liability insurance for claims arising from facts or events that occurred on or prior to the Topco merger effective time.
Notwithstanding the foregoing, (i) in no event will the aggregate premium for such "tail" insurance policy exceed 250% of the current annual premium paid by Liberty for such insurance, and (ii) if the aggregate premium exceeds 250%, Liberty shall be entitled to obtain comparable "tail" insurance as reasonably available for an aggregate cost equal to 250% of the current annual premium.
Information for Advisory Vote
This section sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation that is based on or otherwise relates to the mergers and that is payable or may become payable to Liberty's named executive officers, who are Messrs. Hankowsky, Papa, Hagan and Fala. This compensation is referred to as "golden parachute compensation" by the applicable SEC disclosure rules.
Please note that the amounts indicated below are estimates based on the material assumptions described in this proxy statement/prospectus and the notes to the table below, which may or may not
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actually occur, and do not reflect compensation actions that could occur after the date of this proxy statement/prospectus and before the closing of the mergers. As a result, the actual amounts, if any, which may become payable to a named executive officer may differ in material respects from the amounts set forth below. Furthermore, for purposes of calculating such amounts and in accordance with the requirements of the applicable SEC disclosure rules, Liberty has assumed:
- •
- An assumed closing date for the Topco merger of February 3, 2020;
- •
- A qualifying termination of the named executive officer's employment (i.e., a termination by Liberty without cause or by the named
executive officer for good reason in accordance with the terms of the Senior Officer Severance Plan, as applicable) immediately following the occurrence of the company mergers; and
- •
- A price per Liberty common share of $58.60, which equals the average closing price of Liberty common shares over the first five business days following October 27, 2019, which was the date of the first public announcement of the signing of the merger agreement.
Name
|
Cash(1) | Equity(2)(3) | Perquisites/ Benefits(4) |
Total | |||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
William P. Hankowsky |
$ | 5,146,137 | $ | 10,894,231 | $ | 53,502 | $ | 16,093,870 | |||||
Christopher J. Papa |
$ | 1,918,297 | $ | 3,343,121 | $ | 52,476 | $ | 5,313,894 | |||||
Michael T. Hagan |
$ | 1,877,039 | $ | 3,168,430 | $ | 53,471 | $ | 5,098,940 | |||||
Herman C. Fala |
$ | 1,615,407 | $ | 2,814,075 | $ | 43,491 | $ | 4,472,973 | |||||
- (1)
- Represents
the sum of (a) the lump sum of the named executive officer's base salary and target bonus, multiplied by three for Mr. Hankowsky and by two
for all other named executive officers and (b) a lump sum pro rata annual cash incentive payment from January 1, 2020 through an assumed February 3, 2020 date of termination, both
of which each named executive officer would be entitled to receive pursuant to the terms of Senior Officer Severance Plan on a "double-trigger" basis (i.e., in the event that the named
executive officer's employment is terminated by Liberty or its successor without cause or by the named executive officer for good reason during the period commencing six (6) months prior to and
ending two (2) years after the company mergers). Excludes the 2019 annual cash incentive that will be paid to the officer in December 2019.
- (2)
- Includes
the accelerated vesting and settlement of performance-based restricted stock units for the 2018-2020 and 2019-2021 performance award periods assuming
payouts of 250% and 170.5%, respectively, of the target value for Mr. Hankowsky and 200% and 145.5% respectively, of the target value for Messrs. Papa, Hagan and Fala. These payouts are
estimated based on relative total shareholder return ("TSR") performance for the award period. The relative TSR calculations were performed using the average of the closing share prices for the 30
calendar days at the beginning of each period for Liberty and each member of the peer group, and for the end of the period, using the average of the closing prices of the common shares of Liberty and
each member of the peer group for the 30 calendar days ended November 30, 2019. Actual payouts will not be determined until the date that the change in control occurs, and may result in
an actual payout ranging from zero shares to 200% (250% for Mr. Hankowsky) of the target value. The amounts will be payable at the effective time of the company mergers on a "single-trigger"
basis (i.e., upon the occurrence of the company mergers regardless of whether the employment of the named executive officer is terminated).
- (3)
- Excludes performance-based restricted stock units for the 2017-2019 performance award period, which are expected to be determinable and vest prior to the change in control in January 2020 and to result in payouts of 272% of the target amount for Mr. Hankowsky and of 200% of the target
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amount for Messrs. Papa, Hagan and Fala. The estimated value of such restricted stock units, based on the relative TSR performance for the award period (calculated pursuant to the methodology described in note (2) above), are as follows:
William P. Hankowsky |
$ | 5,384,207 | ||
Christopher Papa |
$ | 1,490,915 | ||
Michael T. Hagan |
$ | 1,346,599 | ||
Herman C. Fala |
$ | 1,251,649 |
- Actual
payouts will not be determined until the earlier of the end of the award period (December 31, 2019) and the date that the change in control
occurs, and may result in an actual payout ranging from zero shares to 200% (272% for Mr. Hankowsky) of the target value.
- (4)
- Represents the sum of (a) a lump sum payment of $10,000 in lieu of continued coverage under Liberty's term life insurance, AD&D and disability policies and (b) an amount equal to one and one-half times the applicable COBRA premiums for the named executive officer and his applicable dependents for continued medical and dental coverage over an 18-month period. These amounts are payable on a double-trigger basis.
For a description of the arrangements pursuant to which the foregoing payments and benefits are to be made, see the descriptions set forth in "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers—Treatment of the Liberty Equity Awards," "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Merger—2019 Annual Cash Incentives," and "The Mergers—Interests of Liberty's Trustees and Named Executive Officers in the Mergers—Liberty Named Executive Officer Post-Termination and Change in Control Arrangements" above, which are incorporated herein by reference.
Trustees' and Officers' Insurance and Indemnification
In connection with the mergers, Liberty's trustees and officers will receive certain insurance and indem