December 30, 2015: CNB Financial Corporation announced it has entered into a definitive agreement to acquire Lake National Bank of Mentor, Ohio, for $22.50 per share in cash, or approximately $24.75 million in the aggregate. Lake National Bank, which was founded in 2005 by the late Lake County businessman and philanthropist Jerome T. Osborne, Sr., had approximately $152.2 million in total assets and $14.1 million in shareholders equity as of September 30, 2015.Following completion of the merger, the business of Lake National Bank will operate as part of the ERIEBANK division of CNB.
CNB Financial Corporation (CCNE Updated Trend Analysis) offers various banking products and services for individual, business, governmental, and institutional customers. ERIEBANK is a division of CNB and was developed locally by the people and business leaders of Erie, PA. Its principal products and services comprise checking, savings, and time deposit accounts; and real estate, commercial, industrial, residential, and consumer loans. As of December 30, 2015, the company operated 31 offices in 16 communities throughout northwestern Pennsylvania.
December 30, 2015: El Pollo Loco opens newest restaurant in Lodi, California. The new Lodi El Pollo Loco restaurant brings roughly 35 jobs to area residents. The 2,747 square-foot restaurant incorporates the brand’s hacienda design which features an open kitchen layout designed for customers to view the signature chicken as it is being grilled. The restaurant is open seven days a week from 9 a.m. to 11 p.m., with dine in service closing one hour earlier.
El Pollo Loco News
November 11, 2015: El Pollo Loco Holdings (LOCO Updated Trend Analysis) El Pollo Loco today opened its newest location in Chatsworth, CA. The new restaurant, located at 20780 Nordhoff Street, adds to the 270 plus locations in the greater Los Angeles area. The restaurant is open seven days a week from 10 a.m. to 11 p.m.
October 9, 2015: El Pollo Loco Holdings hearing vague takeover rumors. Rumor is that Panera is interested in acquiring the company.
October 7, 2015: Suntrust initiates initiates Buy rating on LOCO, price target $17.
August 28, 2015: Stifel Nicolaus Raised LOCO to Buy from Hold, price target $17.
August 18, 2015: LOCO Price Target lowered to $19 from $27 at Jefferies, but reiterates Buy rating.
El Pollo Loco Holdings (LOCO Updated Trend Analysis) through its subsidiary, El Pollo Loco, Inc., develops, franchises, licenses, and operates quick-service restaurants under the El Pollo Loco name in the United States.
December 29, 2015: Bridgestone will not counter latest bid for Pep Boys. Bridgestone will not present a counter offer to acquire The Pep Boys Manny, Moe & Jack in response to the most recent proposal from Icahn Enterprises L.P. of $18.50 per share. That’s it folks, let’s sell and book our profits. That’s a 20% win for us in the last few weeks that we perfectly played this bidding war between Bridgestone and Icahn. Congratulations if you were able to profit off this trade. I will discontinue following this stock and remove it from the private members area at the end of the week.
More Pep Boys News
December 28, 2015: Pep Boys-Manny Moe & Jack Inc Icahn raises offer to $18.50 per share versus $17 per share offer from Bridgestone as the bidding war continues. On December 28, 2015, Icahn Enterprises delivered to the Issuer a proposal (the “Proposal”) to acquire all of the outstanding Shares for $18.50 per Share in cash in a negotiated transaction that would not be subject to any due diligence, financing or antitrust conditions.
In the Proposal, Icahn Enterprises stated that, as one of the Issuer’s largest shareholders, Icahn Enterprises believes it is contrary to the best interests of all of the Issuer’s shareholders for the Issuer to agree to any increase of the termination fee payable to Bridgestone Retail Operations, LLC (“Bridgestone”) pursuant to the Agreement and Plan of Merger, dated as of October 26, 2015, by and among the Issuer, Bridgestone and TAJ Acquisition Co. (as amended through December 24, 2015, the “Bridgestone Agreement”), because it would prevent a truly robust auction. Icahn Enterprises also indicated in the Proposal that it could be willing to bid in excess of $18.50 per Share for the Issuer. However, Icahn Enterprises also stated in the Proposal that it does not intend to bid any higher than $18.50 per Share if the Issuer agrees to any increase of Bridgestone’s termination fee.
December 24, 2015: Bridgestone raises offer for Pep Boys to $17 per share in a bidding war with Icahn Enterprises. Bridgestone has amended their Agreement and Plan of Merger dated October 26, 2015. Pursuant to the amendment, Bridgestone increased the offer price to acquire all the outstanding shares of common stock of Pep Boys from $15.50 per share to $17.00 per share in cash, or approximately $947 million in aggregate equity value. The revised offer price of $17 per share provides approximately $84 million in additional cash consideration to Pep Boys shareholders.
The Pep Boys board of directors continues to unanimously recommend that Pep Boys shareholders accept BSRO’s offer and tender their shares pursuant to that offer. Pep Boys also announced that its board of directors no longer deems the proposal received from Icahn Enterprises L.P. to acquire Pep Boys to be a “Superior Proposal” as defined in the Agreement and Plan of Merger. Pursuant to the amendment, the termination fee payable by Pep Boys to Bridgestone under certain circumstances, including a termination in order to enter into a superior proposal by a third party, increased from $35 million to $39.5 million.
December 23, 2015: Rumors are circulating that Bridgestone plans to raise its bid for Pep Boys again. This is exactly the catalyst I speculated about. We positioned in Pep Boys early and are holding through the bidding war. As soon as the bidding war is done and a buyer is announced, we will sell and book our profits. The rumor does not specify the new offer price.
December 21, 2015: Pep Boys-Manny Moe & Jack Inc sees Icahn offer of $16.50 per share as superior and terminates Bridgestone transaction. The Board of Directors, after consultation with its independent legal and financial advisors, determined that a proposal, received on the evening of December 18, 2015, from Icahn Enterprises L.P. to acquire Pep Boys for $16.50 per share in cash, constitutes a “Superior Proposal” as defined in the Company’s agreement and plan of merger with Bridgestone Retail Operations, LLC.
The Company delivered notice to Bridgestone of the Pep Boys Board’s determination and intention to effect a change of recommendation and to terminate the Bridgestone agreement. Such notice commenced a three business day period that will expire at 5:00pmNew York City time on Wednesday, December 23, 2015, during which the Company may not change the recommendation nor terminate the Bridgestone agreement, and Bridgestone has the right to make proposals to the Company.
As previously announced on October 26, 2015, the Company entered into the Bridgestone agreement pursuant to which Bridgestone commenced, on November 16, 2015, a tender offer for all outstanding shares of Pep Boys at $15.00 per share in cash. On December 11, 2015, the parties announced that the price per share had been increased to $15.50.
December 11, 2015: Bridgestone Americas, Inc. (Bridgestone) and The Pep Boys Manny, Moe & Jack (PBY Updated Trend Analysis) today announced that Pep Boys and Bridgestone Retail Operations, LLC (BSRO), a wholly owned subsidiary of Bridgestone, have amended their Agreement and Plan of Merger dated October 26, 2015. Pursuant to the amendment, BSRO increased the offer price to acquire all the outstanding shares of common stock of Pep Boys from $15.00 per share to $15.50 per share in cash, or approximately $863 million in aggregate equity value. The revised offer price of $15.50 per share provides approximately $28 million in additional cash consideration to Pep Boys shareholders.
The Pep Boys board of directors continues to unanimously recommend that Pep Boys shareholders accept BSRO’s offer and tender their shares pursuant to that offer. Pep Boys also announced that its board of directors no longer deems the proposal received on December 8, 2015 from Icahn Enterprises L.P. to acquire Pep Boys for $15.50 per share in cash to be a “Superior Proposal” as defined in the Agreement and Plan of Merger.
December 9, 2015: Hearing rumors that Bridgestone is planning a higher offer to counter Icahn offer and that this new offer could be made as soon as this week.
December 9, 2015: Pep Boys-Manny Moe & Jack Inc Icahn disclose that they have entered into a confidentiality agreement and standstill provisions related to deal in a recent filing. On December 8, 2015, Icahn Enterprises:
(i) entered into a confidentiality agreement with the Issuer, pursuant to which the Reporting Persons have agreed to certain customary standstill provisions through January 31, 2017 and certain customary confidentiality provisions through July 31, 2017; (ii) delivered to the Issuer a merger agreement executed by Icahn Enterprises Holdings (the “Icahn Agreement”), in substantially the same form as the Agreement and Plan of Merger, dated as of October 26, 2015, by and among the Issuer, Bridgestone Retail Operations, LLC (“Bridgestone”) and TAJ Acquisition Co. (the “Bridgestone Agreement”), pursuant to which, if executed by the Issuer, an affiliate of the Reporting Persons will, subject to the terms and conditions thereof, acquire 100% of the Issuer’s outstanding Shares for $15.50 per share (the “Icahn Proposal”); and (iii) was informed by the Issuer that, in accordance with Section 8.3 of the Bridgestone Agreement, (A) the Issuer’s board of directors had determined that the Icahn Proposal constitutes a Superior Proposal (as defined in the Bridgestone Agreement) and (y) the Issuer had provided a Company Notice (as defined in the Bridgestone Agreement) to Bridgestone of the Issuer’s intention to effect a Change of Recommendation (as defined in the Bridgestone Agreement) in response to the Icahn Proposal and terminate the Bridgestone Agreement to enter into the Icahn Agreement.
It looks like that unless Bridgestone agrees to a transaction prior to 5:00 p.m., New York City time, on December 11, 2015 that is superior to the transaction contemplated by the Icahn Agreement, Pep Boys will terminate the Bridgestone Agreement and execute the Icahn Agreement.
December 07, 2015: Icahn makes offer to purchase Pep Boys at $15.50 per share. Icahn letter reads:
I am writing on behalf of the Board of Directors of Icahn Enterprises L.P. to make a proposal for a negotiated transaction whereby Icahn Enterprises would acquire all of the outstanding shares of common stock of The Pep Boys Manny, Moe & Jack for $15.50 per share in cash.
This proposal is NOT subject to any due diligence, financing or antitrust conditions and we are prepared to enter immediately into the exact same merger agreement that Pep Boys executed with Bridgestone Retail Operations, LLC. In addition, we will enter into any reasonable further agreements that you may require in order to provide greater certainty of closing.
We believe our proposal is clearly superior to the $15.00 per share Bridgestone transaction and that our financial wherewithal to close expeditiously is indisputable.
We are prepared to meet with you immediately to negotiate and document this transaction. We look forward to a prompt and favorable reply.
As a reminder, on 12/04/15 Icahn disclosed a new 12.1% stake in Pep Boys; plans to talk to management about possible synergies between PBY’s retail segment and Icahn’s Auto Plus.
On October 26th, 2015, PBY agrees to be acquired by Bridgestone for $15 a share in cash; deal valued at $835 million.
December 4, 2015: Icahn discloses a new 12.1% stake in the Pep Boys and that he plans to talk to management about possible synergies between PBY’s retail segment and Icahn’s Auto Plus, a recent 13D filing reveals. Icahn believes that the Issuer’s retail automotive parts segment presents an excellent synergistic acquisition opportunity for Auto Plus, a leading automotive aftermarket company wholly owned by Icahn Enterprises. To that end, representatives of Icahn have had, and intend to continue to have, discussions with the Issuer and various parties that participated in the Issuer’s strategic alternatives review process regarding potential transactions involving the Issuer’s retail segment. Reminder, on 10/2615, PBY agreed to be acquired by Bridgestone for $15 per share in cash for a deal valued at $835 million. The stock immediately shot up to $15 a share and continues to consolidate at this level.
The Pep Boys (PBY Updated Trend Analysis) operates in the automotive aftermarket service and retail business. The company’s service locations offer a range of automotive maintenance and repair services.
Pep Boys Auto published this commercial about their company:
December 27, 2015: Piper Jaffray reiterates their Overweight rating on Xerox, and set a price target of $15. Furthermore, Piper Jaffray named Xerox as a 2016 top pick in business services. Piper Jaffray thinks that the company’s transformation from a document technology provider to an outsourcing services leader serves as a powerful catalyst for the shares. Piper Jaffray also thinks that Carl Icahn’s involvement has the potential to unlock substantial value for the company. Piper Jaffray sees upside potential of more than 40 percent over the next 12-18 months.
More Xerox News
December 14, 2015: Carl Icahn increases his stake in Xerox Corporation to 8.1% from 7.1% according to a recent 13D/A filing. Icahn Enterprises acquired their shares in the belief that the shares were undervalued. Icahn intends to have discussions with representatives of Xerox and the Board of Directors relating to improving operational performance and pursuing strategic alternatives, as well as the possibility of board representation.
October 26, 2015: Xerox says not considering sale of the company at this point in conference call comments. The company also today announced that its Board of Directors has authorized a review of the company’s business portfolio and capital allocation options, with the goal of enhancing shareholder value.
Xerox (XRX Updated Trend Analysis) is a global business services, technology and document management company helping organizations transform the way they manage their business processes and information. The company sells desktop monochrome and color printers, multifunction printers, copiers, digital printing presses, and light production devices; and production printing and publishing systems for the graphic communications marketplace and large enterprises.
December 26, 2015: TheStreet gave Siliconware Precision Industries a Hot Stock rating, citing the stocks excellent valuation and high dividend. TheStreet article also mentions the possibility of a merger with Advanced Semiconductor Engineering as Advanced Semiconductor owns about 25% of Siliconware and possesses solid cash reserves. Back in October, I posted the letter that Advanced Semiconductor sent Siliconware Precision Industries regarding a closer relationship and/or merger (see below). You can read TheStreet article here: http://www.thestreet.com/story/13404084/2/2-hot-stocks-in-taiwan-s-booming-tech-sector-that-deliver-both-value-and-growth.html
More Siliconware Precision Industries News
November 04, 2015: Siliconware Precision Industries ASX (25% stake) Chaiman sends letter to Board – filing. “As we have communicated to you on several previous occasions, the intention of our companys investment in your company through a tender offer was to establish the basis and opportunity for exploration of possible avenues of cooperation with your company, in order to face the challenge of intensifying global competition and the growing trend for consolidation of the semiconductor industry.
We have not yet received a response for the letter we delivered to you recently, on October 22. We would like to once again express our sincere hope of engaging in discussion and planning with your company as soon as possible for specific plans of cooperation. We sincerely hope that our ideal of seeking positive cooperation between both companies will be acknowledged by your company, so that we may work together for the development of the overall Taiwanese economy and the sustained improvement of the competitive advantage of the Taiwanese semiconductor packaging industry.
Once again, we look forward to hearing from you regarding a possible method and date for a meeting in which both parties can discuss the related matters. We can fully accommodate your availability for any travel and meeting arrangements.”
October 25, 2015: Note: A trend towards consolidation in the Taiwanese semiconductor market. Advanced Semiconductor Engineering and Hon Hai pulling at Siliconware Precision Industries as its profits continue to climb.
October 22, 2015: Siliconware Precision Industries (SPIL Updated Trend Analysis) Advanced Semiconductor Engineering, Inc. discloses amended stake. In a filing on October 22, 2015, ASE sent a letter to the chairman of SPIL, a copy of which is below:
“This Company lawfully purchased 779,000,000 common shares of your company during the period from August 24, 2015 to September 22, 2015, and completed the closing and transfer of the equity interest on October 1, 2015. This Company has lawfully become a shareholder of your company. The intention of this Companys investment in your company was to establish the basis and opportunity for exploration of possible avenues of cooperation with your company, in order to face the challenge of intensifying global competition and the growing trend for consolidation of the semiconductor industry. This Company sincerely hopes that your company can acknowledge our ideal of initiating cooperation between both parties and jointly discuss the feasibility of future cooperation, so that under the precondition of full compliance with the law and maintaining shareholder and employee rights and benefits, we may establish specific plans for cooperation and work together for the development of the overall Taiwanese economy and the sustained improvement of the competitive advantage of the Taiwanese semiconductor packaging industry. We look forward to hearing from you regarding a possible method and date for a meeting in which both parties can discuss the related matters, and hereby sincerely wish you the best of health.”
October 17, 2015: Siliconware Precision Industries Chairman to continue to pursue strategic partnership with Hon Hai according to the Taiwan press.
October 14, 2015: Siliconware Precision Industries reaches Quorum at EGM, Meeting Proceeds; turnout passed 90% to vote on 2 resolutions SPIL shareholders to vote on resolutions to increase share issuance, relax restrictions on asset sales and purchases Passage would allow SPIL to proceed with plans to swap shares with Hon Hai.
October 6, 2015: Advanced Semiconductor Engineering discloses 24.9% stake i a 13D filing. On October 6, 2015, ASE sent emails to SPIL shareholders:
“We would like to highlight for you that under the Deposit Agreement between SPIL and JP Morgan as the depositary of the SPIL ADSs, there are no pass through voting rights for ADS holders.
The SPIL Deposit Agreement adopts a split voting mechanism, which means that if holders of at least 51% of the ADSs outstanding at the relevant record date instruct JP Morgan to vote in a certain manner regarding a proposal, including the October 15 EGM proposals, JP Morgan will vote all outstanding ADSs in the manner so instructed.
If by the relevant record date JP Morgan has not received instructions from holders of at least 51% of the ADSs to vote in the same manner, then JP Morgan will appoint SPILs Chairman, or his designee, as proxy to vote all the shares represented by ADSs at his sole discretion, which may not be in your interest.
The SPIL EGM proposals relating to the Hon Hai deal are ill-advised and value destructive which, if approved by shareholders, will be extremely dilutive and detrimental to shareholders rights.
We are not the only one that thinks the SPIL EGM proposals are bad for shareholders. ISS and Glass Lewis, the worlds foremost proxy advisors have recommended that you REJECT the EGM proposals. Given the nature of the ADS split voting and the severity of the damage that shareholders may suffer if the EGM goes through, we respectfully urge you to contact JP Morgan as soon as possible, and also pass this information to other fellow SPIL ADS holders that you know of, so that you and the other fellow SPIL ADS holders can timely instruct JP Morgan to vote AGAINST the SPIL EGM proposals.
Please note that as a matter of market practice, custodian banks usually impose a voting cutoff date prior to shareholders meetings.”
Siliconware Precision Industries (SPIL Updated Trend Analysis) is a provider of semiconductor assembly and test services. SPIL is dedicated to meeting all of its customers’ integrated circuit packaging and testing requirements, with turnkey solutions that range from design consultations, modeling and simulations, wafer bumping, wafer probe and sort, package assembly, final test, burn-in, to shipment. Products include advanced leadframe, substrate packages, wafer bumping and FCBGA, which are widely used in personal computers, communications, Internet appliances, cellular phones, digital cameras, cable modems, personal digital assistants and LCD monitors. SPIL supplies services and support to fabless design houses, integrated device manufacturers and wafer foundries globally. The company was founded in 1984 and is headquartered in Taichung, Taiwan.
December 25, 2015: BB&T receives approval for National Penn Bancshares acquisition. BB&T has received regulatory approval from the Federal Reserve, the FDIC and all required state banking regulators to acquire National Penn Bancshares, Inc. The transaction is expected to close in the next few months.
More BB&T Corporation News
December 15, 2015: Credit Suisse has given BB&T Corporation (BBT Updated Trend Analysis) a Top Pick rating. Analyst Jill Shea sees continuing fundamental outperformance from BB&T and praises the company’s “willingness to optimize its balance sheet and capital deployment.”
December 7, 2015: Raymond James Raised BBT to Strong Buy from Outperform, and set a price target of $45.
November 24, 2015: Piper Jaffray initiates coverage of BB&T Corporation with a positive bias, citing that many super regional US banks are inexpensive compared to long-term risk-premiums and book value multiples, capital levels are at multi-decade highs, credit losses are running well below long-term averages and the possibility of higher rates presents significant upside opportunity.
BB&T Corporation (BBT Updated Trend Analysis) operates as a financial holding company that provides various banking and trust services for retail and commercial clients. BB&T is one of the largest financial services holding companies in the U.S. with $191 billion in assets and market capitalization of $29.6 billion.
On October 16, 2015, Jim Cramer interviewer BB&T’s Chairman Kelly S. King:
December 22, 2015: Gray Television reached an agreement with the U.S. Department of Justice (DOJ) that should enable the parties to complete Gray’s acquisition of the broadcast stations owned by Schurz and to complete the related divestures previously announced by Gray. Gray and Schurz have entered into a proposed consent decree with the DOJ that requires the divestiture of television stations in the Wichita, Kansas, and South Bend, Indiana, markets. When Gray announced its acquisition of the Schurz broadcast stations on September 14, 2015, and shortly thereafter when Gray and Schurz filed the requisite applications for consent to their transaction with the DOJ and the FCC, Gray expressly pledged to divest KAKE-TV, its ABC affiliate in the Wichita, Kansas, market, and Schurz’s WSBT-TV, the CBS affiliate in the South Bend, Indiana, market, to facilitate prompt regulatory approvals for the Gray/Schurz transaction.Thereafter, on October 1, 2015, Gray announced that it had reached an agreement with Lockwood Broadcast Group, Inc. (“Lockwood”) to sell all of KAKE-TV’s assets in exchange for the assets of Lockwood’s WBXX-TV and $11.2 million in cash. WBXX-TV is the CW affiliate for the Knoxville, Tennessee, market (DMA 62), where Gray owns CBS affiliate WVLT-TV. At the same time, Gray announced that it had reached agreements with Sinclair Broadcast Group, Inc. (“Sinclair”) to sell all of WSBT-TV’s assets in exchange for the assets of Sinclair’s WLUC-TV in Marquette, Michigan, whose channels serve as the NBC and Fox affiliates for the Marquette market (DMA 180). On November 2, 2015, Gray announced that it would transfer the Schurz radio stations in South Bend, Indiana, to Mid-West Family Broadcast Group; its radio stations in Lafayette, Indiana, to Neuhoff Communications; and its radio stations in Rapid City, South Dakota, to The HomeSlice Group. Reminder, on 09/14 Gray Television announced that they would acquire Schurz Communications’ TV and radio stations for $442.5 million.
More Gray Television News
December 15, 2015: Gray Television, Inc. (GTN Updated Trend Analysis) expands its partnership with The CW Network. Gray Television announced a multi-year extension of their affiliation agreements, covering 23 markets around the country. The agreements include four new Gray stations to carry The CW in Madison, Wis.; Fargo, N. D.; Alexandria, La.; and Laredo, Texas. – Gray will own and operate CW affiliates serving 23 markets, making it the owner of the second-largest number of CW stations in the country.
December 14, 2015: Stephens makes Gray Television their new Best Idea; Reiterates Overweight rating, sets price target at $22.
Gray Television (GTN Updated Trend Analysis) owns television stations and digital assets in the United States. The company owns and operates television stations in 44 television markets broadcasting 140 program streams comprising 76 affiliates of the Big Four networks, such as ABC, CBS, NBC, and FOX.
December 22, 2015: Bernstein reiterates its Outperform rating on Union Pacific and sets a price target of $96.
Union Pacific Corporation (UNP Updated Trend Analysis) operates railroads in the United States. Union Pacific Railroad connects 23 states in the western two-thirds of the country by rail, providing a critical link in the global supply chain. From 2005-2014, Union Pacific invested more than $31 billion in its network and operations to support America’s transportation infrastructure.
Union Pacific published this video about their company:
December 22, 2015: TerraForm Power Appaloosa Investment (9.5% stake) sends letter demanding inspection of books and records according to a new 13D/A filing. The letter reads:
Dear Corporate Secretary:
Appaloosa Management L.P., a Delaware limited partnership (AMLP), is the investment adviser to the following funds:
(i)Appaloosa Investment Limited Partnership I, a Delaware limited partnership (AILP);
(ii)Palomino Fund Ltd., a British Virgin Islands company (Palomino);
(iii)Thoroughbred Fund L.P., a Delaware limited partnership (TFLP); and
(iv)Thoroughbred Master Ltd., a British Virgin Islands company (TML and collectively with AILP, Palomino and TFLP, the Funds).
As publicly disclosed, the Funds collectively own 7,600,000 shares, or 9.5%, of the outstanding Class A common stock, par value $0.01 per share (the Common Stock) of TerraForm Power, Inc. (the Company), in the applicable amounts set forth on Schedule A, annexed hereto and made part hereof. Enclosed with this letter as Exhibit A is a true and correct copy of documentary evidence of the Funds respective ownership of the Common Stock set forth on Schedule A.
Pursuant to Section 220 of the General Corporation Law of the State of Delaware (the DGCL), on behalf of the Funds, AMLP hereby demands that it and its attorneys, representatives and agents be given, during usual business hours, the opportunity to inspect the following books and records of the Company:
1.All minutes of meetings and written consents of the Companys board of directors (the Board) or any committee thereof relating to the Companys and/or its controlled subsidiaries transactions with SunEdison Inc. (SUNE) regarding Vivint Solar Inc. (Vivint), and any modifications thereto, announced on or after June 1, 2015 (the Subject Transactions), and all documents or other materials presented to the Board or any committee at such meetings. This shall include any minutes or written consents related to the financing of the Subject Transactions, including any purported warehouse facilities or the assumption of debt at the acquired companies.
2.Fully executed copies of all transaction documents, including any related financings, related to the Subject Transactions, which have not been publicly filed.
3.All records reflecting the analysis, if any, conducted by the Board and/or the Corporate Governance and Conflicts Committee of the Board (the Committee) related to the Subject Transactions, including, but not limited to, any valuation of the renewable assets constituting Vivints rooftop solar portfolio (the Rooftop Assets) to be acquired by TerraForm Power, LLC, a controlled subsidiary of the Company (Terra LLC).
4.All records reflecting the Boards and/or the Committees consideration, discussion and acceptance of the terms of that certain agreement, dated as of July 20, 2015 and amended as of December 9, 2015, by and among SUNE, SEV Merger Sub Inc., a wholly-owned subsidiary of SUNE, and Terra LLC (the Interim Agreement), particularly as it relates to the decision to enter into the take/pay arrangement with SUNE and its subsidiaries for the sale of residential solar systems (the Solar Residential Systems), rather than a right of first refusal (ROFR) pursuant to standard industry custom and practice.
5.All bids, term sheets, letters of intent or other offers received by or on behalf of the Company or any of the Companys subsidiaries regarding the purchase of Rooftop Assets or Solar Residential Systems (collectively, the Asset Bids).
6.All minutes of meetings of the Board or any committee thereof at which the Asset Bids were discussed and all documents or other materials presented to the Board or any committee thereof (including without limitation, the Committee) at such meetings.
7.All records reflecting the Companys efforts to date, if any, to seek competitive offers for the purchase of the Rooftop Assets and Solar Residential Systems.
8.All minutes of meetings and written consents of the Board or any committee thereof at which Cleary Gottlieb Steen & Hamilton LLP (Cleary) was present and relating in any way to transactions with SUNE or Vivint.
9.All minutes from the meeting of the Board held on November 20, 2015 and any and all documents or other materials relating thereto, including any correspondence prior to or after such meeting.
10.All minutes of meetings and written consents of the Board or any committee thereof relating to the departure of Cleary as counsel to the Committee and its replacement with Greenberg Traurig LLP and all documents or other materials presented to the Board or any committee at such meetings.
11.Complete copies of all of the Companys current directors and officers liability (or equivalent) insurance policies, binders, supplements and agreements.
12.Complete copies of the executed indemnification agreements between the Company and each of the members of the Board and the Companys officers.
13.Copies of the engagement letters and retention agreements between the Committee and each of Cleary and Greenberg Traurig LLP, and between the Company and each of the advisors who rendered services to the Company, the Board and the Committee in connection with the Subject Transactions.
AMLP also demands the right to make copies or extracts from the foregoing.
AMLP further demands the right to inspect all information referred to in this letter that is within the legal possession, custody or control of the Company, including, but not limited to, such information that is within the possession, custody or control of the Companys subsidiaries or the Companys outside legal counsel, accountants, auditors, financial advisors and other agents, representatives and advisors.
AMLP demands that all modifications, additions or deletions to any and all information referred to above be immediately furnished to AMLP as such modifications, additions or deletions become available to the Company or its agents, representatives or advisors.
All of the foregoing requested items constitute part of the Companys books and records as set forth in Section 220(b)(1) of the DGCL.
Upon presentment of appropriate documentation therefor, AMLP will bear the reasonable costs incurred by the Company, in connection with the production of the information demanded.
The purpose of this demand is to enable AMLP and certain of its affiliates and other parties to, among other things, investigate breaches of Delaware common and statutory law and breaches of fiduciary duties perpetrated on the Funds and other stockholders of the Company by the Company, the Board and certain of its officers arising out of recent business decisions and corporate actions.
AMLP hereby designates Lowenstein Sandler LLP, its counsel, or any other person designated from time to time by AMLP, singly or in any combination, or their designees, to conduct, as its agents, the inspection and copying requested herein.
More TerraForm Power News
December 08, 2015: David Tepper of Appaloosa raises TerraForm Power stake to 9.5% from 9.25% prior; sent letter to management as disclosed in a 13D/A filing.
On December 7, 2015, Appaloosa delivered the letter to the Issuers chief executive officer raising certain governance concerns and citing the impending Vivint transaction to illustrate those concerns.
As noted in the meeting (and in our previous letter), Appaloosa has a considerable investment in TerraForm Power, which surely demonstrates our commitment and belief that the Company can regain its balance. Such normalization can only occur, however, with independent leadership that is determined to honor the Companys mandate (as again stated in its most recent 10-Q) to acquire, operate and own renewable energy generation assets serving utility and commercial customers that generate high-quality contracted cash flows. Once again, this will require an arms length relationship with SunEdison and adherence to proper (and lawful) governance procedures and principles.
As discussed, we view the proposed Vivint transaction as just one (albeit the most egregious) breach of these governance standards. Notwithstanding the assurances you say you have received from the Sellers (i.e., SUNEs) attorneys, we do not believe that the Purchase Agreement between TERP and SUNE reflects a valid, arms length commercial arrangement.
December 6, 2015: David Tepper of Appaloosa discloses a 9.25% stake in TerraForm Power in a recent 13D filing. Appaloosa also sent a letter to TerraForm’s Board in which it disclosed it had acquired a stake and demanded more transparency on details of the relationship with SUNE. The letter from Appaloosa reads:
We write in respect of Appaloosa Management LP’s (AMLP) holdings of TerraForm Power, Inc. common equity and senior notes. We note with interest this week’s announced changes to the TERP management team and Board of Directors. Notwithstanding your explanation in the release, we find that “aligning the company’s strategic focus around acquiring projects from its Sponsor” offers little apparent benefit for TERP stakeholders and raises concern for obvious conflicts between the interests of TERP and its sponsor, SunEdison.
Until recently, TERP’s business purpose was to act as a vehicle to hold and finance a high quality portfolio of fully-developed wind and solar power assets that were supported by long-term power purchase agreements with large, investment-grade corporate counterparties. Isolating these projects within a ring-fenced vehicle made sense for both TERP and SUNE, as the most efficient cost of capital could be obtained by segregating them from the operational, developmental and construction risks of SUNE’s main operating businesses.
The July announcement of the acquisition of the Vivint Solar (VSLR) portfolio of residential rooftop assets marks an unfortunate departure from this business model and appears to serve the sole purpose of promoting SUNE’s desire to acquire VSLR’s development and operating assets, rather than enhancing the quality and value of TERP’s holdings. Indeed, the shift to weaker counterparties (homeowners) and the higher risk profile inherent in these assets (small rooftop panels) also appears to disproportionately benefit the sponsor’s incentive distribution right (IOR) at the expense of significant downside financial risk to TERP. Worse yet, is SUNE’s stated intention (revealed through the release of an Interim Agreement between SUNE and TERP) to place 500MW per year of these inferior assets in TERP for the next 5 years.
Disclosure of the precise details of this acquisition plan is long overdue, as well. So too, are the details surrounding the distinct possibility that TERP will be forced to accept a note from SUNE (which is of dubious credit quality and market value) due to a shortfall in the market value of the assets to be delivered in the first leg of the VSLR portfolio transaction relative to the $922 million purchase price (i.e., the “Advanced Amount” mandated under the Summary of the Note Terms in Exhibit E to the Purchase Agreement between SUNE and TERP). Given the erosion in the market value of comparable rooftop operators to VSLR (SunRun and Solar City, for example) the face value of that note will likely need to be considerable (but of suspect worth given the obligor).
The reconfiguration of the lnvenergy transaction announced November 9th is no better for TERP stakeholders and is obviously intended for the sole benefit of SUNE. These modifications will handoff SUNE’s responsibility for a $388 million equity warehouse commitment to TERP — yet another departure from TERP’s traditional role of owning permanently-financed, income-producing assets. The investment also strains TERP’S resources and significantly raises its leverage and financial risk profile. In downgrading TERP’s debt to a highly-speculative rating of B2, Moody’s cited the change in operating arrangement brought about from both the Vivint and lnvenergy transactions, and the inherent financial strain thereof. Greater linkage to the “Sponsor” also figured significantly in Moody’s analysis.
Thus, it is obvious that the deterioration in TERP’s security prices and credit profile this month results from (among other things): (1) the transmission of financial stress related to its “Sponsor’s” ambitious growth objectives and over-extended financial commitments; and (2) TERP’s incomplete and selective disclosures. TERP’s “reliance on third party acquisitions” has little bearing on either of those factors. We note the advertised increase in the number of independent directors on TERP’s board and trust that the Corporate Governance and Conflicts Committee (the “Conflicts Committee”) will appropriately investigate these and any other related-party transactions to ensure that they are conducted for the benefit of TERP stakeholders. Recent rumors of discussions between SUNE and VSLR regarding “strategic options” for the proposed merger transaction, if true, may represent an opportunity for the Committee to exercise its independence and relieve the financial pressures on both TERP and its “Sponsor” from this harmful transaction. Such efforts would be strongly supported by Appaloosa.
As previously suggested, substantial further disclosures are incumbent on TERP so that investors can assess the full impact of the pending transactions, the relationship between TERP and its “Sponsor”, and the circumstances surrounding the changes in TERP’s management and Board. We look forward to such disclosures and stand ready to meet and discuss any of the issues raised by this letter. In the meantime, we expect the Board and the Conflicts Committee to respect and defend the integrity of TERP’s corporate identity and the interests of its stakeholders. We reserve all rights accordingly.
December 4, 2015: BlueMountain Capital (TERP Updated Trend Analysis) according to a recent 13D filing, BlueMountain Capital has further increased its stake to 11.5% as of December 3, 2015. This is up from 10.1% as of November 20, 2015.
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