Item 1.02 Termination of a Material Definitive Agreement.
In connection with the consummation of the Merger, on September 21, 2021, New
Senior prepaid in full, resulting in the termination of, mortgage financing
comprised of 14 loans in the original aggregate principal amount of $270,015,000
issued February 10, 2020 (collectively, referred to as, the "2020 Financing"),
by and between subsidiaries of New Senior, as borrowers, and KeyBank National
Association, as lender. New Senior incurred prepayment fees of approximately
$2.7 million related to the termination of the 2020 Financing.
In connection with the consummation of the Merger, on September 21, 2021, New
Senior prepaid in full, resulting in the termination of, that certain Master
Multifamily Loan and Security Agreement - Senior Housing, dated as of
October 10, 2018 in respect of the loans in the original aggregate principal
amount of $720,000,000 (the "2018 Financing"), by and among subsidiaries of New
Senior, as borrowers, and KeyBank National Association, as lender. New Senior
incurred prepayment fees of approximately $6.5 million related to the
termination of the 2018 Financing.
In connection with the consummation of the Merger, on September 21, 2021, New
Senior terminated the Credit Agreement, dated as of December 13, 2018 (as
amended, restated, supplemented or otherwise modified from time to time, the
"Credit Agreement"), by and among New Senior, KeyBank National Association, as
agent, the lenders from time to time party thereto, and KeyBanc Capital Markets
Inc., as lead arranger. In connection with the termination of the Credit
Agreement, all outstanding borrowings and all unpaid fees thereunder were paid
in full and all commitments thereunder were terminated.
Item 2.01 Completion of Acquisition or Disposition of Assets.
On September 21, 2021, pursuant to and in accordance with the Merger Agreement,
Merger Sub merged with and into New Senior, with New Senior surviving the merger
as a subsidiary of Ventas. At the effective time of the Merger (the "Effective
Time"), subject to the terms and conditions set forth in the Merger Agreement,
each share of common stock, par value $0.01 per share of New Senior (the "New
Senior Common Stock") issued and outstanding immediately prior to the Effective
Time (other than shares of New Senior Common Stock owned directly by Ventas,
Merger Sub or New Senior) was converted into the right to receive 0.1561 (the
"Exchange Ratio") of a newly issued share of common stock, par value $0.25 per
share, of Ventas (such common stock, the "Ventas Common Stock" and, such
consideration, together with cash in lieu of fractional shares, the "Merger
Consideration").
In addition, at the Effective Time, (i) each option to purchase shares of New
Senior Common Stock vested and was canceled and converted into the right to
receive an amount in cash equal to the product of (1) the excess, if any, of the
value of the Exchange Ratio multiplied by the closing price on the New York
Stock Exchange ("NYSE") for a share of Ventas Common Stock on September 20,
2021, the last trading day before completion of the Merger, over the per share
exercise price of such option times (2) the number of shares covered by such
option, less applicable tax withholdings, and (ii) each restricted stock award
and restricted stock unit award vested and was canceled and became entitled to
receive the Merger Consideration in respect of each share of New Senior Common
Stock covered by such award, less applicable tax withholdings, with the number
of shares of New Senior Common Stock covered by any performance-based restricted
stock unit award determined based on maximum performance.
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Based on the closing price of $56.50 per share of Ventas Common Stock on the
NYSE on September 20, 2021, the aggregate implied value of the Merger
Consideration paid to former holders of New Senior Common Stock in connection
with the Merger was approximately $740 million.
The foregoing description of the Merger Agreement contained in this Item 2.01
does not purport to be complete and is subject to, and qualified in its entirety
by, the full text of the Merger Agreement. A copy of the Merger Agreement was
filed as Exhibit 2.1 to the Current Report on Form 8-K filed by New Senior with
the SEC on June 29, 2021, and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or
Standard; Transfer of Listing.
In connection with the consummation of the Merger, New Senior requested that
NYSE suspend trading of New Senior Common Stock prior to market open on the
September 21, 2021 and file with the SEC a Notification of Removal from Listing
and/or Registration on Form 25 to delist and deregister the New Senior Common
Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). In addition, New Senior intends to file with the SEC a
certification on Form 15 requesting that its reporting obligations under
Sections 13 and 15(d) of the Exchange Act be suspended.
The information set forth in Item 2.01 of this report is incorporated by
reference in this Item 3.01.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 2.01, Item 3.01, Item 5.01 and Item 5.03 of
this report is incorporated by reference in this Item 3.03.
Item 5.01 Changes in Control of Registrant.
As a result of the consummation of the Merger, a change of control of the
registrant occurred and New Senior became a subsidiary of Ventas.
The information set forth in Item 2.01 of this report is incorporated in this
Item 5.01 by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
Letter Agreements
On September 20, 2021, New Senior entered into a letter agreement (a "Letter
Agreement") with each of Susan Givens, President and Chief Executive Officer,
Bhairav Patel, Executive Vice President of Finance and Accounting, and Lori
Marino, Executive Vice President, General Counsel and Corporate Secretary (each,
a "Covered Executive"), pursuant to which the employment of the Covered
Executive was terminated immediately after the closing of the Merger.
Each Letter Agreement amends the "Change in Control Benefits" set forth in each
Covered Executive's existing employment letter agreement such that, in
connection with a qualifying termination, such Covered Executive will be
entitled to the "Maximum Bonus" rather than the "Prorated Bonus" (each, as
defined in such Covered Executive's existing employment letter agreement), and
provides that upon the closing of the Merger, such Covered Executive will have
the right to receive such bonus amount and the other Change in Control Benefits,
contingent on such Covered Executive's execution and non-revocation of a release
of claims in favor of New Senior and its affiliates.
Each Letter Agreement also provides that, as consideration for each Covered
Executive agreeing to extend and expand the non-competition restrictions to
which they are currently subject, in the event that such Covered Executive
receives any payments or benefits that would be subject to the excise tax under
Section 4999 of the Internal Revenue Code of 1986, as amended ("Section 4999"),
such Covered Executive will be entitled to receive from New Senior a payment
such that such Covered Executive will retain, on an after-tax basis, 100% of the
amount
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that such Covered Executive would have received in connection with the Merger if
Section 4999 did not apply. As of the date of this report, New Senior expects
that none of the Covered Executives will be subject to the excise tax under
Section 4999.
Director and Officer Resignations
Pursuant to the Merger Agreement, as of the Effective Time, each of the
directors of New Senior (Frances Aldrich Sevilla-Sacasa, Norman K. Jenkins,
Michael D. Malone, David Milner, Robert F. Savage, Cassia van der Hoof Holstein
and Ms. Givens) resigned from the board of directors of New Senior. At the
Effective Time, Christian N. Cummings, Dana J. Baker, James E. Mendelson,
Michael A. Smith, and Brian K. Wood, each an officer of Merger Sub immediately
prior to the Effective Time, became directors of New Senior.
Pursuant to the Merger Agreement, as of the Effective Time, each of the officers
of New Senior (Ms. Givens, Mr. Patel and Ms. Marino) resigned as officers of New
Senior. At the Effective Time, Christian N. Cummings, Dana J. Baker, James E.
Mendelson, Michael A. Smith, and Brian K. Wood, each an officer of Merger Sub
immediately prior to the Effective Time, became officers of New Senior.
The information set forth in Item 2.01 of this report is incorporated by
reference in this Item 5.02.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On September 21, 2021, following consummation of the Merger, the certificate of
incorporation and bylaws of New Senior were each amended and restated in their
entirety. A copy of the Third Amended and Restated Certificate of Incorporation
of New Senior is filed herewith as Exhibit 3.1 and is incorporated herein by
reference. A copy of the Second Amended and Restated Bylaws of New Senior is
filed herewith as Exhibit 3.2 and is incorporated herein by reference.
The information set forth in Item 2.01 of this report is incorporated by
reference in this Item 5.03.
Item 8.01 Other Events.
On September 21, 2021, New Senior and Ventas issued a joint press release
announcing the completion of the Merger. A copy of the joint press release is
attached hereto as Exhibit 99.1 to this report and is incorporated by reference
in this Item 8.01.
Former New Senior stockholders will be entitled to receive a dividend of $0.45
per share of Ventas Common Stock on October 14, 2021 if they are Ventas
stockholders as of the close of business on October 1, 2021, and will not
receive the dividend previously announced by New Senior on August 4, 2021.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
The exhibits listed in the following Exhibit Index are filed as part of this
report.
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