Item 1.01.
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Entry into a Material Definitive Agreement.
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On July 1, 2019, Genesee & Wyoming Inc. (G&W) entered into an Agreement and Plan of Merger (the Merger Agreement), by
and among G&W, DJP XX, LLC, a Delaware limited liability company (Parent), and MKM XXII Corp., a Delaware corporation and a wholly owned subsidiary of Parent (Merger Sub), pursuant to which Merger Sub will be merged with
and into G&W (the Merger) with G&W surviving the Merger as a wholly owned subsidiary of Parent.
The Board of Directors of G&W
(the Board of Directors) unanimously determined that the transactions contemplated by the Merger Agreement, including the Merger, are in the best interests of G&W and its stockholders, and approved the Merger Agreement and the
transactions contemplated thereby, and unanimously resolved to recommend that G&Ws stockholders vote to adopt and approve the Merger Agreement and the Merger.
At the effective time of the Merger (the Effective Time), each share of G&Ws common stock (other than shares held by G&W (including
shares held in treasury), Parent or any of their wholly-owned subsidiaries and shares owned by stockholders who have properly made and not withdrawn or lost a demand for appraisal rights) will be converted into the right to receive $112.00 in cash
(the Merger Consideration). Pursuant to the Merger Agreement, at the Effective Time, each outstanding G&W equity award, whether vested or unvested, will be cancelled in exchange for cash based on the Merger Consideration less, in the
case of a stock option, the per share exercise price.
The closing of the Merger is subject to the adoption of the Merger Agreement by the holders of 66
2/3% of the voting power of the outstanding shares of G&Ws common stock (the Company Stockholder Approval). Consummation of the Merger is also subject to (i) the absence of any law, injunction or other order that prohibits
the consummation of the Merger, (ii) the approval or authorization of, or exemption by, the Surface Transportation Board, (iii) receipt of other antitrust and regulatory approvals and (iv) other customary closing conditions, including
the accuracy of each partys representations and warranties, and each partys compliance with its covenants and agreements contained in the Merger Agreement (subject in the case of this clause (iv) to certain materiality qualifiers).
Parent has obtained equity financing and debt financing commitments to finance the transactions contemplated by the Merger Agreement and pay related fees
and expenses. Brookfield Infrastructure Fund
IV-A,
L.P., Brookfield Infrastructure Fund
IV-B,
L.P., Brookfield Infrastructure Fund
IV-C,
L.P. and Brookfield Infrastructure Fund IV (ER) SCSp (collectively, Brookfield) and Lisson Grove Investment Pte. Ltd. (GIC Investor) have committed to provide capital to Parent
with separate equity contributions of $4,027,235,093 and $1,500,000,000, respectively, subject to the terms and conditions set forth in the equity commitment letters. Credit Suisse, Wells Fargo, Citigroup Global Markets Inc. and RBC Capital Markets
have agreed to provide committed acquisition debt financing of $3.15 billion, consisting of a $600 million senior secured revolving credit facility and $2.55 billion of senior secured term loans. The obligations of the lenders to
provide debt financing under the debt commitment letter are subject to a number of customary conditions.
The Merger Agreement contains representations
and warranties customary for transactions of this type. G&W has agreed to various customary covenants and agreements, including, among others, (i) agreements to conduct its and its subsidiaries and affiliated entities businesses
in the ordinary and usual course of business during the period between the execution of the Merger Agreement and the Effective Time and not to engage in certain kinds of transactions during this period, and (ii) to call a special meeting of the
stockholders to adopt the Merger Agreement (the Stockholder Meeting).