On January 3, 2017, Ares Capital Corporation (NASDAQ: ARCC) completed the acquisition of American Capital, Ltd. (NASDAQ:ACAS) through a series of mergers. We believe this strategic acquisition enhances ARCC’s position as the largest business development company in the United States(1) and a leading direct lender to U.S. middle market companies. The combined company remains externally managed by Ares Capital Management LLC.
On May 23, 2016, Ares Capital Corporation (“ARCC”), American Capital, Ltd. (“ACAS”), Orion Acquisition Sub, Inc. (“Acquisition Sub”), a wholly owned subsidiary of ARCC, Ivy Hill Asset Management, L.P. (“IHAM”), a wholly owned portfolio company of ARCC, Ivy Hill Asset Management, GP, the general partner of IHAM, American Capital Asset Management, LLC (“ACAM”), a wholly owned portfolio company of ACAS and solely for the limited purposes set forth therein, Ares Capital Management LLC (“ACM”) entered into a definitive merger agreement, providing for the acquisition of ACAS by ARCC through a series of mergers.
Two mergers occurred:
1. Acquisition Sub merged with and into ACAS, with ACAS remaining as the surviving entity in the merger as a wholly owned subsidiary of ARCC.
2. ACAM merged with and into IHAM, with IHAM remaining as the surviving entity in the merger as a wholly owned portfolio company of ARCC.
Immediately following the mergers, ACAS converted into a Delaware limited liability company and withdrew its election as a “business development company” (as defined in the Investment Company Act of 1940, as amended).
Subject to the terms and conditions of the merger agreement, each share of ACAS common stock issued and outstanding immediately prior to the effective time was converted into the right to receive a combination of cash and ARCC common stock which can be approximately summarized as follows:
Under the terms of the agreement, ACAS shareholders received total consideration of approximately $18.06 per share comprised of: (i) $14.41 per share from ARCC consisting of approximately $6.48 per share of cash (including a make-up dividend in the amount of $0.07 per share) and 0.483 ARCC shares for each ACAS share at a value of $7.93 per ACAS share (based on the closing price per share of ARCC common stock on January 3, 2017), (ii) $2.45 per share of cash from ACAS’s sale of American Capital Mortgage Management, LLC, and (iii) approximately $1.20 per share of cash as transaction support provided by Ares Capital Management, LLC, a subsidiary of Ares Management, L.P. (NYSE: ARES) and the investment adviser to ARCC, acting solely on its own behalf. In connection with the stock consideration, approximately 112.0 million ARCC shares were issued to ACAS shareholders, resulting in ACAS shareholders owning 26.3% and ARCC shareholders owning 73.7% of the combined company as of January 3, 2017. On January 3, 2017, the official close price of ARCC’s common stock on The NASDAQ Global Select Market was $16.42 per share. ACAS shares were delisted from the NASDAQ and trading ceased at the close of trading on January 3, 2017.
ARCC is an externally managed closed-end fund. The current directors and officers of ARCC are continuing in their current positions and ARCC’s investment adviser, ACM, continues to externally manage the combined company. The former directors or officers of ACAS are not continuing as directors or officers of the combined company.
Holders of ACAS common stock should consult with their own tax advisors to determine the tax consequences of the merger to them. For U.S. federal income tax purposes, ACAS and ARCC treated the merger as a taxable acquisition of all of the ACAS common stock by ARCC. ACAS stockholders should generally recognize taxable gain or loss (depending on their respective tax basis in their shares) upon the receipt of the ARCC consideration, the make-up dividend amount and the Mortgage Manager consideration. With respect to the Ares Capital Management consideration, there is limited authority addressing the tax consequences of the receipt of merger consideration from a party other than the acquiror and, as a result, the tax consequences of the receipt of the Ares Capital Management consideration are not entirely clear.
• U.S. Stockholders: ARCC, Ares Capital Management and Computershare Inc. ("Computershare") (as ARCC’s transfer agent) intend to take the position that the Ares Capital Management consideration received by a U.S. stockholder (as defined in our registration statement and amendments thereto) is treated as additional merger consideration, and, assuming such position is respected, should generally result in additional taxable gain or a smaller loss to such U.S. stockholder. Accordingly, assuming that the Ares Capital Management consideration is treated as additional merger consideration, U.S. stockholders should recognize taxable gain or loss on 100% of the total amount realized in the transactions for U.S. federal income tax purposes.
• Non-U.S. Stockholders: Except as otherwise described in our registration statement and amendments thereto, non-U.S. stockholders (as defined therein) generally should not be subject to U.S. tax on the receipt of the ARCC consideration, the make-up dividend amount and the Mortgage Manager consideration. Because of the uncertainty regarding the tax consequences of the receipt of the Ares Capital Management consideration, ARCC, Ares Capital Management and Computershare (as ARCC’s transfer agent), and any other applicable withholding agent, intend to withhold U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty, provided the non-U.S. stockholder furnishes the applicable forms or documents certifying qualification for the lower treaty rate) from the Ares Capital Management consideration received by a non-U.S. stockholder.
At the effective time, each share of ACAS common stock issued and outstanding immediately prior to the effective time was converted into the right to receive the merger consideration (excluding dissenting shares, treasury stock and shares held by ARCC). Each such share of ACAS common stock is no longer outstanding and has automatically canceled and ceased to exist, with the holders of such shares ceasing to have any rights with respect to any ACAS common stock other than the right to receive the merger consideration upon the surrender of such shares of ACAS common stock in accordance with such stockholder’s letter of transmittal:
• The exchange agent mailed to each record holder of ACAS common stock a letter of transmittal and instructions for use in effecting the surrender of certificate(s) or book-entry shares in exchange for the merger consideration and, without interest, cash instead of fractional shares and any dividends or other distributions declared after the effective time with respect to shares of ARCC common stock. Delivery was effected, and risk of loss and title to certificate(s) and book-entry shares only passed, upon delivery of such certificate(s) (or affidavits of loss in lieu of such certificate(s)) or book-entry shares to the exchange agent in the manner set forth in such letter of transmittal and instructions.
• If a certificate for ACAS common stock had been lost, stolen or destroyed, upon the making of an affidavit by such holder and, if required by ARCC, the posting of a bond in such amount as ARCC may determine is reasonably necessary as indemnity, the exchange agent will issue in exchange for such lost, stolen or destroyed certificate the merger consideration and, without interest, cash instead of fractional shares and any dividends or other distributions declared after the effective time with respect to shares of ARCC common stock.
• Shares of ARCC common stock were issued in book-entry (i.e., uncertificated) form only. No physical certificates were issued in connection with the merger. In lieu of physical certificates, the exchange agent sent to each person who had surrendered shares of ACAS common stock, together with a properly completed transmittal letter, a confirmation containing the information required under Maryland law regarding the ARCC common stock issued to such person, including the name of the issuer (ARCC) and the number of shares of ARCC common stock issued.
• ARCC, Ares Capital Management and the exchange agent were entitled to deduct and withhold from any amounts payable to any ACAS stockholder such amounts as each determined was required to be deducted and withheld with respect to the making of such payment under applicable tax laws. If any amounts were withheld, these amounts were treated as having been paid to the stockholders from whom they were withheld.
ARCC currently intends to distribute quarterly dividends to its stockholders. For a history of the dividends and distributions paid by ARCC since January 1, 2014, see the “Distributions” page on the “Investor Resources” section of our website. The amount and timing of past dividends and distributions are not a guarantee of any future dividends or distributions, or the amount thereof, the payment, timing and amount of which will be determined by ARCC’s board of directors and depend on ARCC’s cash requirements, its financial condition and earnings, contractual restrictions, legal and regulatory considerations and other factors.
No dividends or other distributions with respect to shares of Ares Capital common stock will be paid to any former American Capital stockholders who have not surrendered their shares to the exchange agent for shares of Ares Capital common stock until such shares are surrendered in accordance with such stockholders' letter of transmittal. Following the surrender of any such shares in accordance with such letter of transmittal, the record holders of such shares shall be entitled to receive, without interest, the amount of dividends or other distributions with a record date after the effective time payable with respect to shares of Ares Capital common stock exchangeable for such shares and not previously paid. Ares Capital has the right to withhold dividends or any other distributions on shares of Ares Capital common stock until the American Capital shares are surrendered to the exchange agent.
Computershare Trust Company, N.A.
250 Royall Street
Canton, Massachusetts 02021
Within USA, US territories & Canada 800 546 5141
Outside USA, US territories & Canada 781 575 2765
(1) Measured using total assets and market capitalization.