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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
Filed by the Registrant ☒
Filed by a party other than the Registrant
Check the appropriate box:
Preliminary Proxy Statement
Confidential, for use of the Commission Only (as permitted by Rule 14a-6(e)(2))
Definitive Proxy Statement
Definitive Additional Materials
Soliciting Material Under Rule 14a-12
Cowen Inc.
(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box):
No fee required
Fee paid previously with preliminary materials
Fee computed on table in exhibit required by Item 25(b) per Exchange Act Rules 14a-6(i)(1) and 0-11

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To our Stockholders:
You are cordially invited to attend a special meeting of stockholders of Cowen Inc., a Delaware corporation (the “Company” or “Cowen”), on November 15, 2022 at 10:00 a.m. Eastern Time (including any adjournment or postponement thereof, the “special meeting”), in a virtual-only meeting format.
On August 1, 2022, the Company, The Toronto-Dominion Bank, a Canadian chartered bank (“TD” or “Parent”), and Crimson Holdings Acquisition Co., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“Merger Sub”), entered into an Agreement and Plan of Merger (the “merger agreement”) pursuant to which, upon the terms and subject to the conditions set forth therein, Merger Sub will be merged with and into the Company (the “merger”), with the Company surviving the merger (sometimes hereinafter referred to as the “Surviving Corporation”) as a wholly owned subsidiary of Parent. The merger agreement provides that, subject to certain exceptions, each share of Class A common stock, par value $0.01 per share, of the Company (“class A common stock”) and Class B common stock, par value $0.01 per share, of the Company (“class B common stock” and, together with class A common stock, “common stock”) issued and outstanding immediately prior to the effective time of the merger (the “effective time”) will at the effective time automatically be converted into the right to receive $39.00 in cash, without interest (the “merger consideration”), and each share of 5.625% Series A Cumulative Perpetual Convertible Preferred Stock (“preferred stock”) of the Company will remain issued and outstanding following the effective time of the merger as shares of preferred stock of the Surviving Corporation.
The proxy statement accompanying this letter provides you with more specific information concerning the special meeting, the merger agreement, the merger and the other transactions contemplated by the merger agreement. We encourage you to carefully read the accompanying proxy statement and the copy of the merger agreement attached as Annex A thereto.
The board of directors of the Company (the “Board”) has reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by merger agreement; (ii) determined that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) directed that the merger agreement be submitted to the stockholders of the company for adoption; (iv) recommended that such stockholders vote their shares of common stock in favor of the adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement.
At the special meeting, you will be asked to consider and vote on (i) a proposal to adopt the merger agreement and approve the transactions contemplated thereby (including the merger) (the “merger proposal”), (ii) a proposal to approve, by advisory (non-binding) vote, the compensation that may be paid or become payable to the named executive officers of Cowen in connection with the consummation of the merger (the “advisory compensation proposal”) and (iii) a proposal to approve any adjournment of the special meeting for the purpose of soliciting additional proxies if there are not sufficient votes at the special meeting to approve the merger proposal (the “adjournment proposal”). The Board unanimously recommends you vote “FOR” the merger proposal, “FOR” the advisory compensation proposal and “FOR” the adjournment proposal.
Your vote is important. Whether or not you plan to attend the virtual special meeting, we want to make sure your shares are represented at the meeting. You may cast your vote by submitting your proxy in advance of the virtual special meeting by internet, telephone or mail.
After reading the accompanying proxy statement, please authorize a proxy to vote your shares of common stock by internet or telephonically as described in the accompanying proxy statement, or, if you received a paper copy of the proxy card, by completing, dating, signing and returning your proxy card or vote your shares by attending and voting at the virtual special meeting. Instructions regarding the methods of authorizing your proxy

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are provided on the proxy card. If you hold common stock through an account with a brokerage firm, bank or other nominee, please follow the instructions you receive from them to vote your common stock. If you have any questions or need assistance voting, please contact our proxy solicitor, Alliance Advisors LLC, toll free at (855) 935-2549.
On behalf of the Board, thank you for your continued support.
By Order of the Board of Directors
 
Sincerely,
 
 
 

 
Jeffrey M. Solomon
 
Chair of the Board
 
 
October 11, 2022
 
The merger has not been approved or disapproved by the Securities and Exchange Commission or any state securities commission. Neither the Securities and Exchange Commission nor any state securities commission has passed upon the merits or fairness of the merger or upon the adequacy or accuracy of the information contained in this document or the accompanying proxy statement. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated October 11, 2022 and is first being mailed to Cowen stockholders on or about October 11, 2022.

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599 Lexington Avenue
New York, NY 10022
To our stockholders:
You are cordially invited to attend a special meeting of stockholders of Cowen Inc., a Delaware corporation (the “Company” or “Cowen”), to be held on November 15, 2022 at 10:00 a.m. Eastern Time (including any adjournment or postponement thereof, the “special meeting”), in a virtual-only meeting format. To access the virtual meeting, stockholders should visit www.virtualshareholdermeeting.com/COWN2022SM. The special meeting is being held for the purpose of acting on the following matters:
Items of Business:
1.
To consider and vote on the proposal to adopt the Agreement and Plan of Merger, dated as of August 1, 2022 (the “merger agreement”), by and among The Toronto-Dominion Bank, a Canadian chartered bank (“Parent”), Crimson Holdings Acquisition Co., a Delaware corporation and an indirect wholly owned subsidiary of Parent (“Merger Sub”), and the Company. Pursuant to the terms of the merger agreement, subject to the terms and conditions set forth therein, Merger Sub will merge with and into the Company (the “merger”), with the Company continuing as the surviving corporation in the merger and as a wholly owned subsidiary of Parent, which proposal we refer to as the “merger proposal”.
 
 
 
 
2.
To consider and vote on a proposal to approve, by advisory (non-binding) vote, the compensation that may be paid or become payable to our named executive officers in connection with the consummation of the merger, which proposal we refer to as the “advisory compensation proposal”.
 
3.
To consider and vote on a proposal to approve any adjournment of the special meeting for the purpose of soliciting additional proxies if there are insufficient votes at the special meeting to approve the merger proposal, which proposal we refer to as the “adjournment proposal”.
 
 
 
Record Date:
Only Cowen stockholders of record at the close of business on September 29, 2022—the record date for the special meeting—will be entitled to notice of, and to vote at, the special meeting and any postponement or adjournment thereof.
 
 
 
General:
The merger proposal must be approved by the affirmative vote of the majority of shares of class A common stock outstanding and entitled to vote on the matter. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, or you abstain from the merger proposal, it will have the same effect as a vote against the merger proposal. Accordingly, your vote is very important regardless of the number of shares of common stock that you own. Whether or not you plan to attend the virtual special meeting, we request that you vote your shares of common stock by either marking, signing, dating and promptly returning the enclosed proxy card in the postage-paid envelope or following the voting instructions on the enclosed proxy card to vote by telephone or through the internet. If you attend the virtual special meeting and you are a Cowen stockholder of record at the close of business on the record date, you may continue to have your shares of common stock voted as instructed in your proxy, or you may withdraw your proxy and vote your shares of common stock at the virtual special meeting. If you fail to authorize a proxy to vote your shares, to vote at the virtual special meeting, or to

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instruct your broker, bank or other nominee on how to vote, the effect will be that the shares of common stock that you own will not be counted for purposes of determining whether a quorum is present at the virtual special meeting and will have the same effect as a vote “AGAINST” the merger proposal.
 
 
 
 
The approval of the advisory compensation proposal and the adjournment proposal each requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on the proposal. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of these proposals. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against the advisory compensation proposal or the adjournment proposal, as applicable.
 
 
 
 
Any proxy may be revoked at any time prior to its exercise by delivery of a properly executed, later-dated proxy card, by authorizing your proxy or voting instructions by telephone or through the internet at a later date than your previously authorized proxy, by submitting a written revocation of your proxy to our Secretary, or by voting at the virtual special meeting. Attendance at the virtual special meeting alone will not be sufficient to revoke a previously authorized proxy.
 
 
 
 
Holders of shares of class B common stock and holders of shares of preferred stock of the Company are not entitled to vote on the merger proposal, the advisory compensation proposal or the adjournment proposal.
 
 
 
 
For more information concerning the virtual special meeting, the merger agreement, the merger and the other transactions contemplated by the merger agreement, please review the accompanying proxy statement and the copy of the merger agreement attached as Annex A thereto.
 
 
 
 
As a general matter, holders of common stock who do not vote in favor of the adoption of the merger agreement and the approval of the merger and otherwise comply with the requirements of Delaware law will be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company. Holders of shares of preferred stock of the Company will also be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company.
 
 
 
 
The Board has reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by merger agreement; (ii) determined that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) directed that the merger agreement be submitted to the stockholders of the company for adoption; (iv) recommended that such stockholders vote their shares of common stock in favor of the adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement.
 
 
 

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Accordingly, the Board unanimously recommends a vote “FOR” the merger proposal, “FOR” the advisory compensation proposal and “FOR” the adjournment proposal.
 
 
 
 
Whether or not you plan to attend the virtual special meeting, we want to make sure your shares are represented at the meeting. You may cast your vote by authorizing your proxy in advance of the virtual special meeting by internet, telephone or mail.
By Order of the Board of Directors
 
Sincerely,
 

 
Owen S. Littman
 
Secretary

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COWEN INC.
599 Lexington Avenue
New York, NY 10022
SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD ON NOVEMBER 15, 2022
PROXY STATEMENT
This proxy statement contains information relating to a special meeting of stockholders Cowen Inc., a Delaware corporation (“Cowen”, the “Company”, “we”, “us” or “our”). All references to “TD” or “Parent” refer to The Toronto-Dominion Bank, a Canadian chartered bank; all references to “Merger Sub” refer to Crimson Holdings Acquisition Co., a Delaware corporation and an indirect wholly owned subsidiary of Parent.
The special meeting will be held on November 15, 2022 at 10:00 a.m. Eastern Time (including any adjournment or postponement thereof, the “special meeting”), in a virtual-only meeting format. We are furnishing this proxy statement to holders (“Cowen stockholders”) of Class A common stock, par value $0.01 per share, of the Company (“class A common stock”) and Class B common stock, par value $0.01 per share, of the Company (“class B common stock” and, together with class A common stock, “common stock”) as part of the solicitation of proxies by the Company’s board of directors (the “Board”), for exercise at the special meeting and at any postponements or adjournments thereof. This proxy statement is dated October 11, 2022 and is first being mailed to Cowen stockholders on or about October 11, 2022.
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SUMMARY
This summary highlights selected information in this proxy statement and may not contain all of the information about the merger agreement, the merger or the other transactions contemplated by the merger agreement that is important to you. We have included page references in parentheses to direct you to more complete descriptions of the topics presented in this summary. You should carefully read this proxy statement in its entirety, including the annexes hereto and the other documents to which we have referred you, for a more complete understanding of the matters being considered at the special meeting, including, without limitation, the merger agreement attached as Annex A to this proxy statement. You may obtain, without charge, copies of documents incorporated by reference into this proxy statement by following the instructions set forth under the section entitled “Where You Can Find Additional Information” beginning on page 124 of this proxy statement.
The Parties
(page 22)
Cowen Inc.
Cowen Inc. (“Cowen”) is a diversified financial services firm that provides investment banking, research, sales and trading, prime brokerage, outsourced trading, global clearing, and commission management services. Cowen also has an investment management division which offers actively managed alternative investment products. Founded in 1918, Cowen is headquartered in New York and has offices worldwide. The Company’s principal executive offices are located at 599 Lexington Avenue, New York, NY 10022 and our telephone number is (212) 845-7900. Shares of the Company’s class A common stock are listed on the Nasdaq Global Select Market under the trading symbol “COWN”.
Parent
TD is a Schedule I bank under the Bank Act (Canada), and a financial holding company with US$1.4 trillion in global assets as of July 31, 2022. TD also maintains a federally licensed branch located in New York that, among other things, supports U.S. Wholesale Banking activities.
TD’s common shares are listed on the New York Stock Exchange and the Toronto Stock Exchange under the symbol “TD”. The principal executive offices of TD are located at 66 Wellington Street West, Toronto, Ontario, Canada, M5K 1A2, and its telephone number at that address is (416) 308-9030 or toll free at (866) 486-4826.
Merger Sub
Crimson Holdings Acquisition Co. is a Delaware corporation and a wholly owned subsidiary of Toronto Dominion Holdings (U.S.A.) Inc., which itself is an indirect wholly owned subsidiary of TD. Merger Sub was formed solely for the purposes of facilitating the merger and the other transactions contemplated by the merger agreement. Merger Sub has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the merger agreement. Pursuant to the merger agreement, on the closing date, Merger Sub will merge with and into Cowen, and Cowen will continue as the Surviving Corporation.
The principal executive offices of Merger Sub are located at c/o The Toronto Dominion Bank, 66 Wellington Street West, Toronto, Ontario, Canada, M5K 1A2, and its telephone number at that address is (416) 308-9030 or toll free at (866) 486-4826.
The Merger
(page 31)
On August 1, 2022, the Company entered into an Agreement and Plan of Merger (the “merger agreement”) with Parent and Merger Sub, providing for, subject to the satisfaction or (to the extent permitted by law) waiver of specified conditions, the acquisition of the Company by Parent at a price of $39.00 in cash, without interest, per share of common stock (the “merger consideration”). Subject to the terms and conditions of the merger agreement, Merger Sub will be merged with and into the Company (the “merger”), with the Company surviving the merger as a wholly owned subsidiary of Parent (the “Surviving Corporation”). A copy of the merger agreement is included as Annex A to this proxy statement.
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If the merger is consummated, at the effective time of the merger (the “effective time”), each share of common stock issued and outstanding immediately prior to the effective time (except for (i) shares of common stock owned by the Company or Parent (in each case, other than shares of common stock (A) held in trust accounts, managed accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity, or (B) held, directly or indirectly, in respect of a debt previously contracted) and (ii) any shares of common stock with respect to which dissenters’ rights have been exercised) will be automatically canceled and converted into the right to the merger consideration.
If the merger is consummated, the class A common stock will be delisted from the Nasdaq Global Select Market and deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as soon as reasonably practicable following the effective time, and, accordingly, the class A common stock will no longer be publicly traded.
The Special Meeting
(page 23)
The special meeting of stockholders of the Company will be held on November 15, 2022 at 10:00 a.m. Eastern Time in a virtual-only meeting format. To access the virtual special meeting, you should visit www.virtualshareholdermeeting.com/COWN2022SM. You will be required to enter a control number, included on your proxy card, voting instruction form or other notice that you may receive, which will allow you to participate in the virtual meeting and vote your shares of common stock if you are a Cowen stockholder as of the record date. See the section entitled “The Special Meeting” beginning on page 23 of this proxy statement for additional information on the special meeting, including how to vote your shares of common stock.
Stockholders Entitled to Vote; Vote Required to Approve the Merger Proposal
(page 23 and page 24)
Only Cowen stockholders of record at the close of business on September 29, 2022—the record date for the special meeting—will be entitled to notice of, and to vote at, the special meeting and any postponement or adjournment thereof. As of the close of business on the record date, there were 28,014,299 shares of common stock outstanding and entitled to vote. Each Cowen stockholder is entitled to one vote per share of common stock held by such Cowen stockholder on the record date on each of the proposals presented in this proxy statement.
The approval of the merger proposal requires the affirmative vote of the majority of shares of class A common stock outstanding and entitled to vote on the matter (the “Cowen stockholder approval”). Under Delaware law and the merger agreement, the receipt of such required vote is a condition to the consummation of the merger. Approval of the advisory compensation proposal and the adjournment proposal is not a condition to the consummation of the merger. Note that you may vote to approve the merger proposal and vote not to approve the advisory compensation proposal or adjournment proposal and vice versa.
Holders of shares of class B common stock and holders of shares of 5.625% Series A Cumulative Perpetual Convertible Preferred Stock (“preferred stock”) of the Company are not entitled to vote on the merger proposal, the advisory compensation proposal or the adjournment proposal.
Background of the Merger
(page 31)
A description of the process we undertook that led to the proposed merger, including our discussions with Parent, is included in this proxy statement under “The Merger—Background of the Merger”.
Recommendation of the Board
(page 53)
The Board has reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by merger agreement; (ii) determined that it is fair and advisable to, and in the best interests of, the Company and its stockholders to
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enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) directed that the merger agreement be submitted to the stockholders of the company for adoption; (iv) recommended that such stockholders vote their shares of common stock in favor of the adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement. Accordingly, the Board unanimously recommends a vote “FOR” the merger proposal, “FOR” the advisory compensation proposal and “FOR” the adjournment proposal. For a discussion of the factors that the Board considered in determining to unanimously recommend the approval of the merger proposal, see the section entitled “The Merger—Reasons for the Merger” beginning on page 53 of this proxy statement.
Opinion of Ardea Partners LP
(page 64)
Pursuant to an engagement letter between the Company and Ardea Partners LP (“Ardea”), the Company retained Ardea as its financial advisor in connection with the transactions contemplated by the merger agreement.
At a meeting of the Board held on August 1, 2022, representatives of Ardea rendered to the Board Ardea’s oral opinion, subsequently confirmed in a written opinion dated August 1, 2022 and delivered to the Board, to the effect that, as of the date of Ardea’s written opinion, and based upon, and subject to, the factors and assumptions set forth therein, the $39.00 in cash per share of class A common stock, without interest, to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement was fair, from a financial point of view, to such holders.
The full text of Ardea’s written opinion, dated August 1, 2022, which sets forth the assumptions made, procedures followed, matters considered and qualifications and limitations upon the scope of review undertaken in connection with the opinion, is attached as Annex B to this proxy statement. The summary of the Ardea opinion contained in this proxy statement is qualified in its entirety by reference to the full text of Ardea’s written opinion. Ardea provided its’s advisory services and opinion were provided for the information and assistance of the Board in connection with its consideration of the transactions contemplated by the merger agreement. Ardea’s opinion does not constitute a recommendation as to how any holders of class A common stock should vote with respect to the transactions contemplated by the merger agreement or any other matter.
For a description of the opinion that the Board received from Ardea, and for additional information, see the section entitled “The Merger – Opinion of Ardea Partners LP” beginning on page 64 of this proxy statement and Annex B to this proxy statement.
Certain Effects of the Merger
(page 69)
If the merger is consummated, Merger Sub will be merged with and into the Company, with the Company surviving upon the terms set forth in the merger agreement. As the surviving corporation in the merger, the Company will continue to exist following the merger as an indirect, wholly owned subsidiary of Parent.
If the merger is consummated, the class A common stock will be delisted from the Nasdaq Global Select Market and deregistered under the Exchange Act as soon as reasonably practicable following the effective time, and, accordingly, our class A common stock will no longer be publicly traded.
Effects on the Company if the Merger Is Not Consummated
(page 70)
In the event that the Cowen stockholder approval is not obtained or if the merger is not consummated for any other reason, Cowen stockholders will not receive any payment for their shares of common stock in connection with the merger. Instead, the Company will remain an independent public company, the class A common stock will continue to be listed and traded on the Nasdaq Global Select Market, the class A common stock will continue to be registered under the Exchange Act and Cowen stockholders will continue to own their shares of common stock and will continue to be subject to the same general risks and opportunities as they currently are with respect to ownership of the common stock.
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Under certain circumstances, Cowen will be required to pay TD a termination fee equal to $42,250,000.00 in cash and, under certain other circumstances, TD will be required to pay Cowen an expense reimbursement including (i) $10,000,000 for fees and expenses of third party advisors and other transaction costs, (ii) the aggregate face amount of employee retention awards which have been allocated and communicated to employees of Cowen (subject to certain limitations and requirements) and (iii) the designated capped amount for the premium of an insurance policy that may, at the request of TD, be bound by Cowen pursuant to the merger agreement. For more information, see the sections entitled “The Merger Agreement—Termination Fee” and “The Merger Agreement—Expense Reimbursement” beginning on pages 111 and 112, respectively, of this proxy statement.
Treatment of Compensation Awards
(page 86)
As of the effective time, except as otherwise agreed in writing between Parent and any individual holder, all outstanding awards granted under the Company’s 2010 Equity and Incentive Plan and 2020 Equity Incentive Plan, each as amended from time to time (the “Equity Plans”), will be treated as follows:
each outstanding (i) restricted stock unit award (“Company RSU”) that is or will become vested at the effective time in accordance with its terms and (ii) performance stock unit award (“Company PSU”) for which the applicable performance period is complete but has not yet been settled as of immediately prior to the effective time, in each case, will be canceled and converted into the right to receive an amount in cash equal to the product of (A) the number of shares of class A common stock subject to such Company RSU or Company PSU (based on actual performance) , and (B) the merger consideration, less applicable taxes required to be withheld with respect to such payment;
each outstanding Company RSU (other than Director RSUs (as defined below)) that is not and will not become vested at the effective time in accordance with its terms will be assumed by Parent, subject to the same terms and conditions applicable to such Company RSU immediately prior to the effective time, except that such Company RSU shall be in respect of a number of Parent common shares that is equal to (i) the number of shares of class A common stock underlying such Company RSU, multiplied by (ii) a fraction, (A) the numerator of which is the merger consideration and (B) the denominator of which is the average closing price, rounded to the nearest cent, per Parent common share on the New York Stock Exchange for the period of ten (10) consecutive trading days immediately preceding (but not including) the closing date (the “Exchange Ratio”);
each outstanding deferred cash award (“Company DCA”) that is or will become vested at the effective time in accordance with its terms will be canceled and converted into the right to receive an amount in cash equal to the amount of such Company DCA, plus any then-accrued and unpaid interest, less applicable taxes required to be withheld with respect to such payment;
each outstanding Company DCA that is not and will not become vested at the effective time will be assumed by Parent, subject to the same terms and conditions applicable to such Company DCA;
each outstanding Company PSU for which the applicable performance period is not complete as of immediately prior to the effective time will be assumed by Parent, subject to the same terms and conditions applicable to such Company PSU, immediately prior to the effective time, except that such assumed Company PSU shall (i) no longer be subject to performance conditions following the effective time and (ii) be in respect of a number of Parent common shares that is equal to (A) the number of shares of class A common stock underlying such Company PSU, based on target level of performance (other than any Company PSU for which the applicable performance period ends on or before December 31, 2022, in which case, such assumption will be based on the actual achievement of applicable performance goals prior to the effective time), multiplied by (B) the Exchange Ratio; and
each outstanding Company RSU held by directors of the Board (“Director RSU”) (whether vested or unvested) immediately prior to the effective time will be canceled and converted into the right to receive an amount in cash equal to the product of (i) the number of shares of class A common stock subject to such Director RSU and (ii) the merger consideration.
See the section entitled “The Merger Agreement—Treatment of Compensation Awards” beginning on page 86 of this proxy statement.
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Interests of the Company’s Directors and Executive Officers in the Merger
(page 70)
The Company’s directors and executive officers have financial interests in the merger that may be different from, or in addition to, the interests of the Company’s stockholders generally. The Board was aware of and considered these interests in reaching the determination to approve the execution, delivery and performance by the Company of the merger agreement and unanimously recommend that the Company’s stockholders approve the merger proposal. These interests may include:
the treatment of Company equity awards (as described below in “The Merger—Treatment of Compensation Awards of Directors and Executive Officers”);
certain compensation arrangements pursuant to new employment agreements between executive officers of the Company and Parent, which will be effective on, and contingent upon, the closing of the merger, including severance and other benefits in the case of certain qualifying terminations and one-time cash-based retention or integration bonuses; and
continued indemnification and insurance coverage under the merger agreement, the Company’s organizational documents and indemnification agreements the Company has entered into with each of its directors and executive officers.
These interests are described in more detail, and certain of them are quantified, in the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
Security Ownership of Directors and Executive Officers
(page 115)
As of September 29, 2022, the directors and executive officers of the Company beneficially owned in the aggregate 1,858,433 shares of common stock, or approximately 6.6% of the outstanding shares of common stock. We currently expect that each of these individuals will vote all of his or her shares of common stock in favor of each of the proposals to be presented at the special meeting.
Financing of the Merger
(page 70)
The consummation of the merger is not conditioned on Parent’s receipt of any financing. Parent and Merger Sub have represented in the merger agreement that they have sufficient funds or access thereto, and Parent will at the closing have immediately available funds in cash, to pay when due all amounts payable by it under the merger agreement and to fulfill its obligations under the merger agreement. Parent has acknowledged that the obligations of Parent under the merger agreement are not contingent upon or subject to any conditions regarding Parent’s, its affiliates’, or any other person’s ability to obtain financing or otherwise to raise capital for the consummation of the transactions contemplated by the merger agreement, including the payment of the merger consideration.
Litigation Related to the Merger
(page 83)
On September 27, 2022, a complaint, captioned Stein v. Cowen Inc., et al., Case No. 1:22-cv-08254, was filed in the United States District Court for the Southern District of New York by a purported Cowen stockholder, on September 28, 2022, a complaint, captioned O’Dell v. Cowen Inc., et al., Case No. 1:22-cv-08297, was filed in the United States District Court for the Southern District of New York by a purported Cowen stockholder, on September 29, 2022, a complaint, captioned Alberts v. Cowen Inc., et al., Case No. 1:22-cv-08319, was filed in the United States District Court for the Southern District of New York by a purported Cowen stockholder and on October 7, 2022, a complaint, captioned Bushansky v. Cowen Inc., et al., Case No. 1:22-cv-08551, was filed in the United States District Court for the Southern District of New York by a purported Cowen stockholder, in each case, naming as defendants Cowen and members of the Board. The complaints allege, among other things, that the defendants filed or caused to be filed a materially incomplete and misleading preliminary proxy statement with the SEC relating to the Merger in violation of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder. We have also received certain stockholder disclosure demand letters.
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Among other remedies, the complaints seek an order enjoining the defendants from proceeding with the Merger, requiring the defendants to disclose allegedly material information that was allegedly omitted from the proxy statement, rescinding the Merger to the extent already consummated or in the event that it is consummated or granting rescissory damages, awarding costs, including attorneys’ and expert fees and expenses, and granting such other and further relief as the court may deem just and proper.
The defendants believe that the complaints and demands are without merit and that no further disclosure is required to supplement the proxy statement under applicable laws. As of October 10, 2022, Cowen was not aware of the filing of other lawsuits challenging the Merger or the proxy statement; however, such lawsuits may be filed in the future.
Conditions to the Completion of the Merger
(page 109)
Cowen’s and each of the TD parties’ respective obligations to complete the merger are subject to the satisfaction, at or prior to the effective time, of the following conditions:
the Cowen stockholder approval (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—Cowen Stockholder Approval” beginning on page 101 of this proxy statement) shall have been obtained;
the requisite regulatory approvals shall have been obtained and shall remain in full force and effect and all statutory waiting periods in respect thereof shall have expired or been terminated; and
no order, injunction or decree issued by any court or governmental entity of competent jurisdiction or other legal restraint or prohibition (each, a “legal restraint”) enjoining, preventing, prohibiting or otherwise making illegal the consummation of the merger shall be in effect, and no law, statute, rule, regulation, order, injunction or decree (each, a “legal prohibition”) shall have been enacted, entered, promulgated or enforced by any governmental entity which enjoins, prevents, prohibits or otherwise makes illegal the consummation of the merger.
The obligation of the TD parties to effect the merger is also subject to the satisfaction, or waiver by TD parties, at or prior to the effective time, of the following conditions:
subject to certain materiality and other qualifiers, the accuracy of the representations and warranties of Cowen, and TD shall have received a certificate dated as of the closing date and signed on behalf of Cowen by the Chief Executive Officer or the Chief Financial Officer of Cowen to such effect;
Cowen shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under the merger agreement at or prior to the closing date, and TD shall have received a certificate dated as of the closing date and signed on behalf of Cowen by the Chief Executive Officer or the Chief Financial Officer of Cowen to such effect;
no requisite regulatory approval shall have resulted in the imposition of any materially burdensome regulatory condition (as defined below); and
the total consolidated assets of Cowen shall be less than the $10 billion threshold set forth in Section 163(b) of the Dodd Frank Act and Cowen shall be “substantially engaged” in activities that are financial in nature, incidental to a financial activity, or otherwise permissible for the financial holding company under section 4(c) of the BHC Act (12 U.S.C. 1843(c)), all within the meaning of 12 C.F.R. 225.85(a)(3), as of the closing date.
The obligation of Cowen to effect the merger is also subject to the satisfaction, or waiver by Cowen, at or prior to the effective time, of the following conditions:
subject to certain materiality and other qualifiers, the accuracy of the representations and warranties of the TD parties, and Cowen shall have received a certificate dated as of the closing date and signed on behalf of TD by the Chief Executive Officer or the Chief Financial Officer of TD to such effect; and
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each TD party shall have performed in all material respects the obligations, covenants and agreements required to be performed by it under the merger agreement at or prior to the closing date, and Cowen shall have received a certificate dated as of the closing date and signed on behalf of TD by the Chief Executive Officer or the Chief Financial Officer of TD to such effect.
Neither Cowen, TD nor Merger Sub can provide assurance as to when or if all of the conditions to the merger can or will be satisfied or waived by the appropriate party.
Regulatory Approvals in Connection with the Merger
(page 80)
To complete the merger, Cowen and TD are required to obtain approvals or consents from, or make filings with, a number of U.S. and non-U.S. regulatory authorities. Subject to the terms of the merger agreement, Cowen and TD have agreed to, and to cause their respective subsidiaries to, cooperate and use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperation with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the merger and the other transactions contemplated by the merger agreement.
Cowen, TD and Merger Sub will cooperate with each other and use their reasonable best efforts to (i) promptly prepare and file all necessary documentation to effect all applications, notices, petitions and filings necessary or advisable to consummate the transactions contemplated by the merger agreement and, in the case of the requisite regulatory approvals, make such filings within forty-five (45) days of August 1, 2022 (subject to the timely receipt by the party making such filing of all necessary information from the other party as may be reasonably requested for the preparation of such filing), (ii) promptly (and no later than any deadline imposed by such governmental entity) supply such information and documentary material as may be reasonably responsive to any request made by any governmental entity in connection with such applications, notices, petitions and filings, (iii) obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and governmental which are necessary or advisable to consummate the transactions contemplated by the merger agreement (including the merger) as promptly as practicable, and (iv) comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such governmental entities. The term “requisite regulatory approvals” includes the approvals set forth under the section entitled “The Merger Agreement—Covenants and Agreements—Reasonable Efforts; Regulatory Matters” beginning on page 96 of this proxy statement.
Under the terms of the merger agreement, nothing contained in the merger agreement will be deemed to require TD and its subsidiaries (and Cowen and its subsidiaries will not be permitted without the prior written consent of TD) to take any action, or commit to take any action, or agree to any condition or restriction in connection with obtaining the requisite regulatory approvals that, individually or in the aggregate, would have or would reasonably be expected to have a material adverse effect on (i) the business, results of operations or financial condition of Cowen and its subsidiaries, taken as a whole, or (ii) the business, results of operations or financial condition of TD and its subsidiaries, taken as a whole (which, for the purpose of this sentence, will be deemed to be the same size as Cowen and its subsidiaries, taken as a whole) (a “materially burdensome regulatory condition”).
The approval of an application means only that the regulatory criteria for approval have been satisfied or waived. It does not mean that the approving authority has determined that the merger consideration to be received by Cowen stockholders in the merger is fair. Regulatory approval does not constitute an endorsement or recommendation of the merger.
Cowen and TD have filed all notices and applications necessary to obtain the requisite regulatory approvals. Although each of Cowen and TD does not know of any reason related to it or its respective subsidiaries, as applicable, why the requisite regulatory approvals will not be received to permit the consummation of the merger on a timely basis, Cowen and TD cannot be certain when or if the requisite regulatory approvals will be obtained, or that the granting of these regulatory approvals will not involve the imposition of conditions on the completion of the merger.
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Non-Solicitation of Acquisition Proposals
(page 106)
From the date of the merger agreement until the earlier of the termination of the merger agreement and the effective time of the merger, Cowen is subject to certain restrictions on its ability to solicit third-party proposals relating to alternative transactions or to provide information to and engage in discussions or negotiations with a third party in relation to an alternative transaction. Specifically, Cowen will, and will cause its subsidiaries and their respective employees, officers and directors to (and will use reasonable best efforts to cause its and their other representatives to), immediately cease and cause to be terminated any activities, discussions, or negotiations conducted before August 1, 2022 with any person other than TD with respect to any acquisition proposal (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—No Change in Board Recommendation; Alternative Acquisition Agreements and Intervening Events” beginning on page 107 of this proxy statement).
Cowen will not, and will cause its subsidiaries and its and their respective employees, officers and directors not to, and will use its reasonable best efforts to cause its and their other representatives not to, directly or indirectly:
initiate, solicit, knowingly encourage or knowingly facilitate any inquiries or proposals with respect to any acquisition proposal;
engage or participate in any negotiations with any person concerning any acquisition proposal;
provide any confidential or nonpublic information or data to, or have or participate in any discussions with, any person relating to any acquisition proposal (except (A) to notify a person that has made or, to the knowledge of such party, is making any inquiries with respect to, or is considering making, an acquisition proposal, of the existence of the section of the merger agreement relating to acquisition proposals or (B) to clarify the terms and conditions of any acquisition proposal); or
unless the merger agreement has been terminated in accordance with its terms, approve or enter into any term sheet, letter of intent, commitment, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other similar agreement (whether written or oral, binding or nonbinding) (other than an acceptable confidentiality agreement entered into in accordance with the section of the merger agreement related to acquisition proposals) in connection with or relating to any acquisition proposal (any such agreement, an “alternative acquisition agreement”).
Notwithstanding the foregoing, prior to receipt of the Cowen stockholder approval, if Cowen receives a bona fide written acquisition proposal not resulting from a material breach of the terms of the merger agreement, Cowen may and may permit is subsidiaries and certain of its subsidiaries’ representatives to furnish or cause to be furnished confidential or nonpublic information or data and engage or participate in negotiations or discussions with the person making the acquisition proposal, so long as, in each case, prior to taking such actions:
the Board, after consultation with its outside counsel and its financial advisors, determines in good faith that failure to take such actions would be inconsistent with its fiduciary duties under applicable law; and
prior to providing any confidential or nonpublic information, Cowen has entered into a confidentiality agreement with the person making such acquisition proposal on terms no less favorable to Cowen than the confidentiality agreement (provided that such confidentiality agreement need not contain a standstill) and which does not provide such person with any exclusive right to negotiate with Cowen, and Cowen will substantially concurrently provide to TD any such information which was not previously provided to TD.
Promptly, and in any event within 24 hours, Cowen is required to advise TD following receipt of any acquisition proposal or any inquiry which would reasonably be expected to lead to an acquisition proposal and the substance thereof (including the material terms and conditions of and the identity of the person making such inquiry or acquisition proposal), provide TD with an unredacted copy of any such acquisition proposal and any draft agreements, proposals or other materials received in connection with any such inquiry or acquisition proposal, and keep TD apprised of any material developments, discussions and negotiations related thereto on a reasonably current basis, including any amendments to or revisions of the material terms of such inquiry or
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acquisition proposal. Notwithstanding the foregoing, Cowen will be permitted to waive any standstill provision to allow any person to make an acquisition proposal if the Board, after consultation with its outside counsel and its financial advisors, determines in good faith that failure to take such action would be inconsistent with its fiduciary duties under applicable law.
Termination of the Merger Agreement
(page 110)
The merger agreement may be terminated at any time prior to the effective time, whether before or after receipt of the Cowen stockholder approval (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—Cowen Stockholder Approval” beginning on page 101 of this proxy statement) under the following circumstances:
by mutual written consent of Cowen and TD;
by either TD or Cowen if (i) any governmental entity that must grant a requisite regulatory approval has denied approval of the merger and such denial has become final and nonappealable (provided Cowen shall not have a termination right under this clause (i) with respect to the denial of any requisite regulatory approval, if TD has irrevocably waived receipt of such requisite regulatory approval as a condition to the closing) or (ii) any governmental entity of competent jurisdiction will have issued a final and nonappealable legal restraint or legal prohibition enjoining, preventing, prohibition or otherwise making illegal the consummation of the merger, unless the principal cause of such legal restraint or legal prohibition will be the failure of the party seeking to terminate the merger agreement to perform or observe the obligations, covenants and agreements of such party set forth in the merger agreement;
by either Cowen or TD if the merger has not been consummated on or before August 1, 2023 (such time or such later time agreed in writing by Cowen and TD, the “termination date”), unless the principal cause of the failure of the closing to occur by such date is the failure of the party seeking to terminate the merger agreement to perform or observe its obligations, covenants and agreements under the merger agreement;
by either Cowen or TD (provided, that the terminating party is not then in material breach of any representation, warranty, obligation, covenant or other agreement contained in the merger agreement) if there has been a breach of any of the obligations, covenants or agreements or any of the representations or warranties (or any such representation or warranty ceases to be true) set forth in the merger agreement on the part of Cowen, in the case of a termination by TD, or TD, in the case of a termination by Cowen, which breach or failure to be true, either individually or in the aggregate with all other breaches by such party (or failures of such representations or warranties to be true), would constitute, if occurring or continuing on the closing date, the failure of certain conditions set forth in the merger agreement and which are not cured within forty-five (45) days following written notice to Cowen, in the case of a termination by TD, or TD, in the case of a termination by Cowen, or by its nature or timing cannot be cured during such period (or such fewer days as remain prior to the termination date);
Prior to the time the Cowen stockholder approval is obtained, by TD, if Cowen or the Board has made a recommendation change (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—No Change in Board Recommendation; Alternative Acquisition Agreements and Intervening Events” beginning on page 107 of this proxy statement) ;
by either Cowen or TD, if the Cowen stockholder approval has not been obtained upon a vote thereon taken at the special meeting (including any adjournment or postponement thereof); or
prior to the time the Cowen stockholder approval is obtained, by Cowen in order to enter into an alternative acquisition agreement with respect to a superior proposal if the Board authorizes Cowen to enter into an alternative acquisition agreement in response to a superior proposal, to the extent permitted by the merger agreement, provided that concurrently with such termination, Cowen pays, or causes to be paid, to TD the termination fee pursuant to the merger agreement.
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Termination Fee
(page 111)
Cowen will be required to pay TD a termination payment of $42,250,000.00 in cash (the “Cowen termination fee”), if the merger agreement is terminated in the circumstances set forth below.
For the purposes of this section of the proxy statement, references to “twenty-five percent” in the definition of acquisition proposal will be deemed to be references to “fifty percent.”
TD terminates the merger agreement because Cowen or the Board has made a recommendation change;
if, prior to the time the Cowen stockholder approval (as defined in the section entitled “The Merger Agreement—Covenants and Agreements—Cowen Stockholder Approval” beginning on page 101 of this proxy statement) is obtained, Cowen terminates the merger agreement in order to enter into an alternative acquisition agreement with respect to a superior proposal;
if a bona fide acquisition proposal has been communicated or otherwise made known to Cowen or the Board (and not withdrawn at least two (2) business days prior to the special meeting) or any person has publicly announced (and not publicly withdrawn at least two (2) business days prior to the special meeting) an acquisition proposal, in each case, with respect to Cowen, and thereafter:
the merger agreement is terminated by either Cowen or TD pursuant to (a) the third bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreementbeginning on page 110 of this proxy statement without the Cowen stockholder approval having been obtained (and all other conditions set forth in certain sections of the merger agreement were satisfied or were capable of being satisfied prior to such termination), (b) the fourth bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreementbeginning on page 110 of this proxy statement as a result of a willful and material breach by Cowen of any of its obligations, covenants or other agreements set forth in the merger agreement or (c) the sixth bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 110 of this proxy statement; and
prior to the date that is twelve months after the date of such termination, Cowen enters into a definitive agreement, or consummates, a transaction with respect to any acquisition proposal (whether or not the same acquisition proposal).
Expense Reimbursement
(page 112)
TD will be required to reimburse Cowen for (a) $10,000,000 for fees and expenses of third party advisors (including legal, accounting, investment banking and financial advisors, experts and consultants) and other transaction costs, (b) the aggregate face amount of employee retention awards which have been allocated (or reallocated) and communicated to employees after August 1, 2022 and (c) the reimbursable premium amount (as defined below) (the amounts described in clauses (a), (b) and (c), collectively, the “TD expense reimbursement”) if the merger agreement is terminated in the circumstances set forth below:
TD or Cowen terminates the merger agreement pursuant to the third bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 110 of this proxy statement, and at the time of such termination the conditions set forth in certain other sections of the merger agreement shall have been satisfied or waived or be capable of being satisfied, except that any requisite regulatory approval, other than the NRC Approval, the CSA Approval, the CFIUS Approval or any springing approval (each as defined in the section entitled “The Merger—Regulatory Approvals in Connection with the Merger” beginning on page 80 of this proxy statement), had not been obtained;
Cowen terminates the merger agreement pursuant to the fourth bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 110 of this proxy statement as a result of a willful and material breach by TD of the section of the merger agreement related to reasonable best efforts and regulatory matters; or
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TD or Cowen terminates the merger agreement pursuant to the second bullet set forth under the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 110 of this proxy statement (but only if the applicable denial, legal restraint or legal prohibition relates to any requisite regulatory approval other than the NRC Approval, the CSA Approval, the CFIUS Approval (each as defined in the section entitled “The Merger—Regulatory Approvals in Connection with the Merger” beginning on page 80 of this proxy statement) or any springing approval);
provided that:
TD shall have no obligation to pay the TD expense reimbursement pursuant to the first bullet if a breach of the merger agreement by Cowen was the principal cause of the failure of any of the above conditions set forth under the section entitled “The Merger Agreement—Conditions to the Completion of the Merger” beginning on page 109 of this proxy statement to be satisfied; and
TD shall have no obligation to pay the TD expense reimbursement pursuant to the third bullet if a breach of the merger agreement by Cowen was the principal cause of the denial, legal restraint or legal prohibition giving rise to the termination right.
In no event shall Cowen be required to pay the Cowen termination fee or TD be required to pay the TD expense reimbursement, in each case, more than once.
If Cowen or TD (as applicable, the “obligor”) fails promptly to pay the Cowen termination fee or TD expense reimbursement (as applicable, the “owed amounts” when due pursuant to the merger agreement, and, in order to obtain such payment, TD or Cowen (as applicable, the “obligee”) commences a suit which results in a judgment for the obligor to pay the owed amounts, the obligor shall pay the costs and expenses of the obligee (including reasonable attorneys’ fees and expenses) in connection with such suit. In addition, the obligor shall pay interest on such overdue amounts at a rate per annum equal to the “prime rate” published in The Wall Street Journal on the date on which such payment was required to be made for the period commencing as of the date that such overdue amount was originally required to be paid and ending on the date that such overdue amount is actually paid in full. The owed amounts (and any related amounts payable by the obligor pursuant to this paragraph), except in the case of fraud, shall be the sole remedy of the obligee in the event of a termination of the merger agreement in accordance with the merger agreement pursuant to which the owed amounts are payable by the obligor.
Appraisal Rights
(page 120)
As a general matter, holders of common stock who do not vote in favor of the adoption of the merger agreement and the approval of the merger and otherwise comply with the requirements of Delaware law will be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company. You should read the section entitled “Appraisal Rights” beginning on page 120 of this proxy statement and Section 262 of the DGCL, a copy of which may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262, for a more complete discussion of dissenters’ appraisal rights. Holders of shares of preferred stock of the Company will also be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company.
Material U.S. Federal Income Tax Consequences of the Merger
(page 78)
The receipt of cash pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. Generally, for U.S. federal income tax purposes, if you are a holder of common stock who is a U.S. holder (as defined in the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 78 of this proxy statement), you will recognize capital gain or loss equal to the difference between the amount of cash you receive in the merger and your adjusted tax basis in your shares of common stock converted into cash in the merger. If you are a holder of common stock who is a non-U.S. holder (as defined in the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 78 of this proxy statement), the merger will generally not be taxable to you under
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U.S. federal income tax laws unless you have certain connections to the United States or we are a USRPHC (as defined in the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 78 of this proxy statement) and certain other conditions are met.
You should read the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 78 of this proxy statement for a more complete discussion of the material U.S. federal income tax consequences of the merger. You should consult your own tax advisor for a full understanding of how the merger will affect your federal, state, local and/or non-U.S. taxes.
Current Price of Common Stock
(page 115)
On October 10, 2022, the latest practicable trading day before the filing of this proxy statement, the reported closing price for shares of class A common stock on the Nasdaq Global Select Market was $38.60. You are encouraged to obtain current market quotations for shares of class A common stock in connection with voting your class A common stock.
Additional Information
(page 124)
You can find more information about the Company in the periodic reports and other information we file with the U.S. Securities and Exchange Commission (the “SEC”). The information is available at the website maintained by the SEC at www.sec.gov.
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER
The following questions and answers are intended to briefly address some commonly asked questions regarding the special meeting and the merger. These questions and answers may not address all questions that may be important to you. You should read the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents referred to or incorporated by reference in this proxy statement.
Q:
Why am I receiving this proxy statement?
A:
On August 1, 2022, the Company entered into the merger agreement with Parent and Merger Sub. Pursuant to the terms of the merger agreement, Merger Sub will be merged with and into the Company, with the Company surviving the merger as a wholly owned, direct subsidiary of Parent.
You are receiving this proxy statement in connection with the solicitation of proxies by the Board in favor of the merger proposal and the other matters to be voted on at the special meeting described below under “—What proposals will be considered at the special meeting?
Q:
As a holder of common stock, what will I receive in the merger?
A:
If the merger is consummated, you will be entitled to receive $39.00 in cash, without interest and less any applicable withholding taxes, for each share of common stock that you own immediately prior to the effective time.
The receipt of cash pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. See the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger” beginning on page 78 of this proxy statement for a more detailed description of the United States federal income tax consequences of the merger. You should consult your own tax advisor for a full understanding of how the merger will affect your federal, state, local and/or non-U.S. taxes.
Q:
Will I receive any regular quarterly dividends with respect to the shares of common stock that I own?
A:
On July 20, 2022, the Company declared a regular quarterly dividend of $0.12 per share of common stock for the quarter ended June 30, 2022, which will be paid on September 15, 2022 to Cowen stockholders of record at the close of business on September 1, 2022. Pursuant to the terms of the merger agreement, during the pendency of the merger, the Company is permitted to pay regular quarterly cash dividends at a rate not in excess of $0.12 per share of common stock, to Cowen stockholders. Dividends are declared and paid at the discretion of the Board. The Board may change the Company’s dividend policy at any time and there can be no assurance as to amount or timing of dividends in the future.
For more information, see the section entitled “The Merger—Material U.S. Federal Income Tax Consequences of the Merger—Dividends” beginning on page 80 of this proxy statement.
Q:
What will happen to outstanding Company compensation awards granted under the Equity Plans in the merger?
A:
Except as otherwise agreed in writing by Parent and an individual holder, as of the effective time:
each outstanding Company RSU (other than Director RSUs) that is or will become vested at the effective time in accordance with its terms will be canceled and converted into the right to receive an amount in cash (without interest and less any applicable withholding taxes) equal to the product of (i) the number of shares of class A common stock subject to such Company RSU and (ii) the merger consideration;
each outstanding Company RSU (other than Director RSUs) that is not and will not become vested at the effective time in accordance with its terms will be assumed by Parent, subject to the same terms and conditions applicable to such Company RSU immediately prior to the effective time, except that such Company RSU shall be in respect of a number of Parent common shares that is equal to (i) the number of shares of class A common stock underlying such Company RSU, multiplied by (ii) the Exchange Ratio;
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each outstanding Company DCA that is or will become vested at the effective time in accordance with its terms will be canceled and converted into the right to receive an amount in cash (less any applicable withholding taxes) equal to the amount of such Company DCA, plus any then-accrued and unpaid interest;
each outstanding Company DCA that is not and will not become vested at the effective time will be assumed by Parent, subject to the same terms and conditions applicable to such Company DCA;
each outstanding Company PSU for which the applicable performance period is complete but has not yet been settled as of immediately prior to the effective time will be canceled and converted into the right to receive an amount in cash (without interest and less any applicable withholding taxes) equal to the product of (i) the number of shares of class A common stock subject to such Company PSU, based on actual achievement of applicable performance goals as reasonably determined by the compensation committee of the Board and (ii) the merger consideration;
each outstanding Company PSU for which the applicable performance period is not complete as of immediately prior to the effective time will be assumed by Parent, subject to the same terms and conditions applicable to such Company PSU immediately prior to the effective time, except that such assumed Company PSU shall (i) no longer be subject to performance conditions following the effective time and (ii) be in respect of a number of Parent common shares that is equal to (A) the number of shares of class A common stock underlying such Company PSU, based on target level of performance (other than any Company PSU for which the applicable performance period ends on or before December 31, 2022, in which case, such assumption will be based on the actual achievement of applicable performance goals prior to the effective time ), multiplied by (B) the Exchange Ratio; and
each outstanding Director RSU (whether vested or unvested) immediately prior to the effective time will be canceled and converted into the right to receive an amount in cash (without interest) equal to the product of (i) the number of shares of class A common stock subject to such Director RSU and (ii) the merger consideration.
See the section entitled “The Merger Agreement—Treatment of Compensation Awards” beginning on page 86 of this proxy statement.
Q:
When and where is the special meeting of our stockholders?
A:
The special meeting of stockholders of the Company will be held on November 15, 2022 at 10:00 a.m. Eastern Time in a virtual-only meeting format. To access the virtual special meeting, you should visit www.virtualshareholdermeeting.com/COWN2022SM. You will be required to enter a control number, included on your proxy card, voting instruction form or other notice that you may receive, which will allow you to participate in the virtual meeting and vote your shares of common stock if you are a Cowen stockholder as of the record date.
Q:
Who is entitled to vote at the special meeting?
A:
Only holders of record of shares of the Company’s class A common stock at the close of business on September 29, 2022, the record date for the special meeting, will be entitled to notice of, and to vote at, the special meeting and any postponement or adjournment thereof. As of the close of business on the record date, there were 28,014,299 shares of class A common stock outstanding and entitled to vote. Each such stockholder is entitled to one vote per share of class A common stock held by such stockholder on the record date on each of the proposals presented in this proxy statement. Holders of shares of class B common stock and holders of shares of preferred stock of the Company are not entitled to vote on the merger proposal, the advisory compensation proposal or the adjournment proposal.
If on September 29, 2022, you were a “record” holder of class A common stock (that is, if you held class A common stock in your own name in the stock register maintained by our transfer agent, Computershare), you are entitled to vote at the virtual special meeting or by proxy. Whether or not you intend to attend the virtual special meeting, we encourage you to authorize a proxy to vote now, online, by phone or by proxy card to ensure that your vote is counted.
If on September 29, 2022, you were the beneficial owner of class A common stock held in “street name” (that is, if you held class A common stock through your broker), then these materials are being
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forwarded to you by your broker. You may direct your broker how to vote your class A common stock by following the voting instructions on the form provided by your broker. If you hold any class A common stock through your broker and wish to attend the virtual special meeting, you may attend the virtual special meeting but may not be able to vote unless you first obtain a legal proxy issued in your name from your broker or other nominee. The cut-off time for submitting a legal proxy is November 14, 2022 at 11:59 p.m. Eastern Time.
Q:
What proposals will be considered at the special meeting?
A:
At the special meeting, Cowen stockholders will be asked to consider and vote on the following proposals:
a proposal to adopt the merger agreement (the “merger proposal”);
a proposal to approve, by advisory (non-binding) vote, the compensation that may be paid or become payable to our named executive officers in connection with the consummation of the merger (the “advisory compensation proposal”); and
a proposal to approve any adjournment of the special meeting for the purpose of soliciting additional proxies if there are insufficient votes at the special meeting to approve the merger proposal (the “adjournment proposal”).
Q:
What constitutes a quorum for purposes of the special meeting?
A:
The presence in person or by proxy of any number of stockholders, together holding at least a majority of the capital stock of Cowen issued and outstanding and entitled to vote at the special meeting will constitute a quorum for purposes of the special meeting. Virtual attendance at the special meeting constitutes presence in person for quorum purposes at the special meeting. A quorum is necessary to transact business at the special meeting. Abstentions will be counted as shares present for the purposes of determining the presence of a quorum.
If a quorum is not present at the special meeting, the Cowen stockholders entitled to vote at the special meeting, present virtually or by proxy, may adjourn the special meeting. The adjourned meeting may take place without further notice other than by an announcement made at the special meeting (subject to certain restrictions in the merger agreement, including that the special meeting generally may not be held, without TD’s consent, on a date that is more than seven (7) business days in the case of any individual adjournment or postponement or more than twenty (20) business days in the aggregate after the date on which the special meeting was originally scheduled). In the event that a quorum is not present at the special meeting, or if there are insufficient votes to approve the merger proposal at the time of the special meeting, we expect that the special meeting will be postponed or adjourned to solicit additional proxies.
Q:
What vote of our stockholders is required to approve each of the proposals?
A:
The approval of the merger proposal requires the affirmative vote of the majority of shares of class A common stock outstanding and entitled to vote on the matter. Under Delaware law and the merger agreement, the receipt of such required vote is a condition to the consummation of the merger. Note that you may vote to approve the merger proposal and vote not to approve the advisory compensation proposal or adjournment proposal and vice versa. Abstentions or failures to vote (including a failure to authorize a proxy to vote on a Cowen stockholder’s behalf) will have the same effect as a vote against the merger proposal.
The approval of the advisory compensation proposal requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on such proposal at the special meeting. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of these proposals. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against the advisory compensation proposal.
The approval of the adjournment proposal requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on such proposal at the special meeting. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to
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vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of these proposals. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against the adjournment proposal. The Company does not intend to call a vote on this proposal if the merger proposal is approved at the special meeting.
Q:
How does the Board recommend that I vote?
A:
The Board unanimously recommends a vote “FOR” the merger proposal, “FOR” the advisory compensation proposal and “FOR” the adjournment proposal.
For a discussion of the factors that the Board considered in determining to unanimously recommend the approval of the merger proposal, see the section entitled “The Merger—Reasons for the Merger” beginning on page 53 of this proxy statement.
Q:
How do the Company’s directors and executive officers intend to vote?
A:
As of September 29, 2022, the directors and executive officers of the Company beneficially owned in the aggregate 1,858,433 shares of common stock, or approximately 6.6% of the outstanding shares of common stock. Although none of the directors or executive officers is obligated to vote to approve the merger proposal, we currently expect that each of these individuals will vote all of his or her shares in favor of each of the proposals to be presented at the special meeting.
Q:
Do any of the Company’s directors or executive officers have any interests in the merger that are different from, or in addition to, my interests as a Company stockholder?
A:
In considering the proposals to be voted on at the special meeting, you should be aware that the Company’s directors and executive officers have financial interests in the merger that may be different from, or in addition to, your interests as a Company stockholder. The members of the Board were aware of and considered these interests in reaching the determination to approve the merger proposal and unanimously recommend that Company stockholders approve the merger proposal. These interests may include:
the treatment of Company equity awards (as described below in “The Merger—Treatment of Compensation Awards for Directors and Executive Officers”);
certain compensation arrangements pursuant to new employment agreements between executive officers and Parent, which will be effective on, and contingent upon, the closing of the merger, including severance and other benefits in the case of certain qualifying terminations and one-time cash-based retention or integration bonuses; and
continued indemnification and insurance coverage under the merger agreement, the Company’s organizational documents and indemnification agreements the Company has entered into with each of its directors and executive officers.
These interests are described in more detail, and certain of them are quantified, in the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
Q:
What happens if I transfer my class A common stock before the special meeting?
A:
The record date for the special meeting is earlier than the date of the special meeting. If you own class A common stock on the record date but transfer your shares of class A common stock after the record date but prior to the special meeting, you will retain your right to vote such shares of class A common stock at the special meeting. However, the right to receive the merger consideration will pass to the person to whom you transferred your shares of class A common stock.
Q:
How do I vote if I am a Cowen stockholder of record?
A:
If you are a Cowen stockholder of record, you may vote in advance by authorizing a proxy for the special meeting via the internet, by telephone or by completing, signing, dating and mailing the enclosed proxy card in the envelope provided. In order to submit a vote by proxy via the internet or telephone, follow the applicable instructions shown on the proxy card mailed to you. You may also vote by attending the virtual special meeting and voting during the live webcast.
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For more detailed instructions on how to vote using one of these methods, see the section entitled “The Special Meeting—Voting Procedures” beginning on page 25 of this proxy statement.
Whether or not you plan to attend the virtual special meeting, we urge you to vote now to ensure your vote is counted. You may still attend the virtual special meeting and vote during the live webcast if you have already voted by proxy.
Q:
What will happen if abstain from voting or fail to vote on any of the proposals?
A:
The approval of the merger proposal requires the affirmative vote of the majority of shares of class A common stock outstanding and entitled to vote on the matter. Under Delaware law and the merger agreement, the receipt of such required vote is a condition to the consummation of the merger. Note that you may vote to approve the merger proposal and vote not to approve the advisory compensation proposal or adjournment proposal and vice versa. Abstentions or failures to vote (including a failure to authorize a proxy to vote on a Cowen stockholder’s behalf) will have the same effect as a vote against the merger proposal.
The approval of the advisory compensation and the adjournment proposal each requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on such proposal at the special meeting. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of these proposals. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against these proposals.
Q:
Can I change my vote after I have delivered my proxy?
A:
Yes. For Cowen stockholders of record, any time after you have submitted a proxy card and before the proxy card is exercised, you may revoke or change your vote in one of three ways:
You may submit a new proxy card bearing a later date (which automatically revokes the earlier proxy or voting instructions) whether made on the internet, by telephone or by mail.
You may submit a written notice of revocation to the Company’s Secretary at 599 Lexington Avenue, New York, NY 10022.
You may attend the virtual special meeting and vote during the live webcast. Attendance at the virtual special meeting will not, in itself, constitute revocation of a previously granted proxy.
Please note that if you want to revoke your proxy by sending a new proxy card or a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company prior to the special meeting.
If you hold your shares in “street name”, you will need to revoke or resubmit your proxy through your broker and in accordance with its procedures. If your broker allows you to submit a proxy via the internet or by telephone, you may be able to change your vote by submitting a new proxy via the internet or by telephone (or by mail). In order to attend the virtual special meeting and vote during the webcast, you will need to obtain a proxy from your broker, the Cowen stockholder of record.
Q:
What should I do if I receive more than one set of voting materials?
A:
You may receive more than one set of voting materials, including multiple copies of this proxy statement or multiple proxy or voting instruction cards. For example, if you hold your common stock in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold common stock. Please submit each proxy and voting instruction card that you receive to ensure that all of your shares of common stock are voted.
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Q:
If I hold my common stock in certificated form, should I send in my stock certificates now?
A:
No. Promptly after the effective time, and in any event not later than the fifth business day after the effective time, Parent will cause the paying agent to mail to each holder of common stock entitled to the merger consideration a letter of transmittal and instructions advising such Cowen stockholder how to surrender its common stock in exchange for the merger consideration. Each holder of common stock will be entitled to receive the merger consideration upon the surrender of such certificate for cancelation to the paying agent together with the associated letter of transmittal, duly completely and validly executed in accordance with the instructions thereto, and such other documents as may be reasonably required by the paying agent. You should not return your stock certificates with the enclosed proxy card, and you should not forward your stock certificates to the paying agent without a letter of transmittal. If you hold common stock in non-certificated book-entry form, you will not be required to deliver a stock certificate, and you will instead receive your cash payment after the paying agent receives the documents requested in the applicable instruction.
Q:
Am I entitled to exercise appraisal rights, dissenters’ rights or the rights of an objecting stockholder?
A:
As a general matter, holders of common stock who do not vote in favor of the adoption of the merger agreement and the approval of the merger and otherwise comply with the requirements of Delaware law will be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company. You should read the section entitled “Appraisal Rights” beginning on page 120 of this proxy statement and Section 262 of the DGCL, a copy of which may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262, for a more complete discussion of dissenters’ appraisal rights. Holders of shares of preferred stock of the Company will also be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company.
Q:
When is the merger expected to be consummated?
A:
We currently expect to consummate the merger during the first calendar quarter of 2023, subject to receipt of the Cowen stockholder approval and the required regulatory approvals and the satisfaction or waiver of the other conditions to the merger described in the merger agreement.
Q:
What effect will the merger have on the Company?
A:
If the merger is consummated, Merger Sub will be merged with and into the Company, and the Company will continue to exist following the merger as a wholly owned, indirect subsidiary of Parent. If the merger is consummated, the class A common stock will be delisted from the Nasdaq Global Select Market and deregistered under the Exchange Act as soon as reasonably practicable following the effective time, and, accordingly, the class A common stock will no longer be publicly traded.
Q:
What happens if the merger is not consummated?
A:
In the event that the Cowen stockholder approval is not obtained or if the merger is not consummated for any other reason, Cowen stockholders will not receive any payment for their shares of common stock in connection with the merger. Instead, the Company will remain an independent public company, the class A common stock will continue to be listed and traded on the Nasdaq Global Select Market, the class A common stock will continue to be registered under the Exchange Act and the Company’s stockholders will continue to own their shares of common stock and will continue to be subject to the same general risks and opportunities as they currently are with respect to ownership of the common stock.
Under certain circumstances, Cowen will be required to pay TD a termination fee equal to $42,250,000.00 in cash and, under certain other circumstances, TD will be required to pay Cowen an expense reimbursement including (i) $10,000,000 for fees and expenses of third party advisors and other transaction costs, (ii) the aggregate face amount of employee retention awards which have been allocated and communicated to employees of Cowen (subject to certain limitations and requirements) and (iii) the designated capped amount for the premium of an insurance policy that may, at the request of TD, be bound by Cowen pursuant to the merger agreement. For more information, see the sections “The Merger Agreement—Termination Fee” and “The Merger Agreement—Expense Reimbursement” beginning on pages 111 and 112, respectively, of this proxy statement.
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Q:
What is householding and how does it affect me?
A:
The SEC has approved rules that permit companies and intermediaries (e.g., brokers) to satisfy the delivery requirements for proxy statements and annual reports with respect to two or more Cowen stockholders sharing the same address by delivering a single proxy statement addressed to those Cowen stockholders. This process, which is commonly referred to as “householding”, potentially means extra convenience for Cowen stockholders and cost savings for companies.
Brokers with account holders who are Cowen stockholders of the Company may be “householding” proxy materials. A single proxy statement will be delivered to multiple Cowen stockholders sharing an address unless contrary instructions have been received from the affected Cowen stockholders. If you have received notice from your broker that they will be “householding” communications to your address, such “householding” will continue until you are notified otherwise or until you revoke your consent. If, at any time, you no longer wish to participate in “householding” and would prefer to receive a separate proxy statement, please notify your broker and direct your written request to Cowen Inc., Attention: Investor Relations Department, 599 Lexington Avenue, New York, NY 10022. Cowen stockholders who currently receive multiple copies of the proxy statement at their address and would like to request “householding” of their communications should contact their broker.
Q:
Who can help answer my questions?
A:
If you need assistance in completing your proxy card or have questions regarding the special meeting, please contact Alliance Advisors LLC, which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at (855) 935-2549.
Alliance Advisors, LLC
200 Broadacres Drive, 3rd Floor, Bloomfield, NJ 07003
(855) 935-2549
COWN@allianceadvisors.com
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
The information included in this proxy statement, together with other statements and information publicly disseminated by Cowen, contains certain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Cowen intends such forward-looking statements to be covered by the safe harbor provisions for forward-looking statements contained in the Private Securities Litigation Reform Act of 1995 and includes this statement for purposes of complying with these safe harbor provisions.
In some cases, you can identify these statements by forward-looking terms such as “may,” “might,” “will,” “would,” “could,” “should,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “possible,” “potential,” “intend,” “seek,” or “continue,” the negative of these terms and other comparable terminology or similar expressions. These forward-looking statements represent only Cowen’s beliefs regarding future events (many of which, by their nature, are inherently uncertain and beyond Cowen’s control) and are predictions only, based on Cowen’s current expectations and projections about future events. There are important factors that could cause Cowen’s actual results, level of activity, performance or achievements to differ materially from those expressed or implied by the forward-looking statements, including, among others: (i) the parties’ ability to consummate the proposed transaction within the expected time-frame or at all; (ii) the satisfaction or waiver of the conditions to the completion of the proposed transaction, including the receipt of the required approval of Cowen’s stockholders with respect to the proposed transaction and the receipt of regulatory clearances required to consummate the proposed transaction, in each case, on the terms expected or on the anticipated schedule; (iii) the risk that the parties may be unable to achieve the anticipated benefits of the proposed transaction within the expected time-frames or at all; (iv) the possibility that competing offers or acquisition proposals for Cowen will be made; (v) the occurrence of any event that could give rise to the termination of the proposed transaction, including in circumstances which would require Cowen to pay a termination fee; (vi) the effect of the announcement or pendency of the proposed transaction on Cowen’s ability to retain and hire key personnel and its ability to maintain relationships with its customers, clients, vendors and others with whom it does business; (vii) risks related to diverting management’s attention from Cowen’s ongoing business operations; and (viii) the risk that stockholder litigation in connection with the proposed transaction may result in significant costs of defense, indemnification and liability and may delay the proposed transaction.
In particular, you should consider the risks outlined under Item 1A - “Risk Factors” in Cowen’s Annual Report on Form 10-K for the year ended December 31, 2021 and Cowen’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2022, and subsequent reports Cowen has filed with the SEC. Although Cowen believes the expectations reflected in the forward-looking statements are reasonable, Cowen cannot guarantee future results, level of activity, performance or achievements. Moreover, none of Cowen or any other person assumes responsibility for the accuracy or completeness of any of these forward-looking statements. You should not rely upon forward-looking statements as predictions of future events. These forward-looking statements speak only as of the date on which they are made, and Cowen undertakes no obligation to update any of these forward-looking statements after the date they are made except to the extent required by applicable law. Further disclosures that Cowen makes on related subjects in additional filings with the SEC should be consulted.
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THE PARTIES
Cowen Inc.
Cowen is a diversified financial services firm that provides investment banking, research, sales and trading, prime brokerage, outsourced trading, global clearing, and commission management services. Cowen also has an investment management division which offers actively managed alternative investment products. Founded in 1918, Cowen is headquartered in New York and has offices worldwide.
The Company’s principal executive offices are located at 599 Lexington Avenue, New York, NY 10022 and our telephone number is (212) 845-7900. Shares of the Company’s class A common stock are listed on the Nasdaq Global Select Market under the trading symbol “COWN”.
Parent
TD is a Schedule I bank under the Bank Act (Canada), and a financial holding company with US$1.4 trillion in global assets as of July 31, 2022. TD also maintains a federally licensed branch located in New York that, among other things, supports U.S. Wholesale Banking activities.
TD’s common shares are listed on the New York Stock Exchange and the Toronto Stock Exchange under the symbol “TD”. The principal executive offices of TD are located at 66 Wellington Street West, Toronto, Ontario, Canada, M5K 1A2, and its telephone number at that address is (416) 308-9030 or toll free at (866) 486-4826. TD’s website can be accessed at www.td.com. Information contained in TD’s website does not constitute part of, and is not incorporated into, this proxy statement.
Merger Sub
Crimson Holdings Acquisition Co. is a Delaware corporation and a wholly owned subsidiary of Toronto Dominion Holdings (U.S.A.) Inc., which itself is an indirect wholly owned subsidiary of TD. Merger Sub was formed solely for the purposes of facilitating the merger and the other transactions contemplated by the merger agreement. Merger Sub has not carried on any activities or operations to date, except for those activities incidental to its formation and undertaken in connection with the transactions contemplated by the merger agreement. Pursuant to the merger agreement, on the closing date, Merger Sub will merge with and into Cowen, and Cowen will continue as the Surviving Corporation.
The principal executive offices of Merger Sub are located at c/o The Toronto Dominion Bank, 66 Wellington Street West, Toronto, Ontario, Canada, M5K 1A2, and its telephone number at that address is (416) 308-9030 or toll free at (866) 486-4826.
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THE SPECIAL MEETING
We are furnishing this proxy statement to the holders of common stock as part of the solicitation of proxies by the Board for exercise at the special meeting and at any postponements or adjournments thereof.
Date, Time and Place
The special meeting of stockholders of the Company will be held on November 15, 2022 at 10:00 a.m. Eastern Time in a virtual-only meeting format. To access the virtual special meeting, you should visit www.virtualshareholdermeeting.com/COWN2022SM. You will be required to enter a control number, included on your proxy card, voting instruction form or other notice that you may receive, which will allow you to participate in the virtual meeting and vote your shares of common stock if you are a Cowen stockholder as of the record date.
Purpose of the Special Meeting
The special meeting is being held for the following purposes:
to consider and vote on a proposal to approve the merger of Merger Sub with and into the Company in accordance with the terms of the Agreement and Plan of Merger, dated as of August 1, 2022, by and among the Company, Parent and Merger Sub, the merger agreement and the other transactions contemplated by the merger agreement;
to consider and vote on a proposal to approve, on a non-binding (advisory) basis, the compensation that may be paid or become payable to our named executive officers in connection with the consummation of the merger; and
to consider and vote on a proposal to approve any adjournment of the special meeting for the purpose of soliciting additional proxies if there are insufficient votes at the special meeting to approve the merger proposal.
A copy of the merger agreement is attached as Annex A to this proxy statement.
Recommendation of the Board
The Board has reviewed and considered the terms and conditions of the merger agreement, the merger and the other transactions contemplated by the merger agreement. The Board unanimously (i) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by merger agreement; (ii) determined that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) directed that the merger agreement be submitted to the stockholders of the company for adoption; (iv) recommended that such stockholders vote their shares of common stock in favor of adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement. Accordingly, the Board unanimously recommends a vote “FOR” the merger proposal, “FOR” the advisory compensation proposal and “FOR” the adjournment proposal. For a discussion of the factors that the Board considered in determining to unanimously recommend the approval of the merger proposal, see the section entitled “The Merger—Reasons for the Merger” beginning on page 53 of this proxy statement.
Record Date and Stockholders Entitled to Vote
Only holders of record of shares of the Company’s class A common stock at the close of business on September 29, 2022, the record date for the special meeting, will be entitled to notice of, and to vote at, the special meeting and any postponement or adjournment thereof. As of the close of business on the record date, there were 28,014,299 shares of class A common stock outstanding and entitled to vote. Each such stockholder is entitled to one vote per share of class A common stock held by such stockholder on the record date on each of the proposals presented in this proxy statement. Holders of shares of class B common stock and holders of shares of preferred stock of the Company are not entitled to vote on the merger proposal, the advisory compensation proposal or the adjournment proposal.
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Quorum
The presence in person or by proxy of any number of stockholders, together holding at least a majority of the capital stock of Cowen issued and outstanding and entitled to vote at the special meeting will constitute a quorum for purposes of the special meeting. Virtual attendance at the special meeting constitutes presence in person for quorum purposes at the special meeting. A quorum is necessary to transact business at the special meeting. Abstentions will be counted as shares present for the purposes of determining the presence of a quorum.
If a quorum is not present at the special meeting, the Cowen stockholders entitled to vote at the special meeting, present virtually or by proxy, may adjourn the special meeting. The adjourned meeting may take place without further notice other than by an announcement made at the special meeting (subject to certain restrictions in the merger agreement, including that the special meeting generally may not be held, without TD’s consent, on a date that is more than seven (7) business days in the case of any individual adjournment or postponement or more than twenty (20) business days in the aggregate after the date on which the special meeting was originally scheduled). In the event that a quorum is not present at the special meeting, or if there are insufficient votes to approve the merger proposal at the time of the special meeting, we expect that the special meeting will be postponed or adjourned to solicit additional proxies.
Vote Required
Approval of the Merger Proposal
The approval of the merger proposal requires the affirmative vote of the majority of shares of class A common stock outstanding and entitled to vote on the matter. Under Delaware law and the merger agreement, the receipt of such required vote is a condition to the consummation of the merger. Note that you may vote to approve the merger proposal and vote not to approve the advisory compensation proposal or adjournment proposal and vice versa. Abstentions or failures to vote (including a failure to authorize a proxy to vote on a Cowen stockholder’s behalf) will have the same effect as a vote against the merger proposal.
Approval of the Advisory Compensation Proposal
The approval of the advisory compensation proposal requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on such proposal at the special meeting. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of the advisory compensation proposal. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against the advisory compensation proposal.
The vote on the advisory compensation proposal is a vote separate and apart from the vote to approve the merger proposal. Because the vote on the advisory compensation proposal is advisory only, it will not be binding on the Company, the Board, Parent or the Surviving Corporation. Accordingly, because the Company is contractually obligated to pay the compensation that may be paid or become payable to our named executive officers in connection with the consummation of the merger, if the merger is approved by our stockholders, such compensation will be payable, subject only to the conditions applicable thereto, regardless of the outcome of the vote on the advisory compensation proposal.
Approval of the advisory compensation proposal is not a condition to the consummation of the merger.
Approval of the Adjournment Proposal
The approval of the adjournment proposal requires the affirmative vote of the majority of shares of class A common stock present in person or by proxy and entitled to vote on such proposal at the special meeting. Assuming a quorum is present, if you fail to authorize a proxy to vote your shares of common stock, to vote at the virtual special meeting, or to instruct your broker on how to vote, it will have no effect on the outcome of the adjournment proposal. Abstentions will be counted as shares present for the purposes of determining the number of votes required, and therefore will have the same effect as a vote against the adjournment proposal. The Company does not intend to call a vote on this proposal if the merger proposal is approved at the special meeting.
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The vote on the adjournment proposal is a vote separate and apart from the vote to approve the merger proposal. Accordingly, you may vote to approve the merger proposal and vote not to approve the adjournment proposal and vice versa.
Approval of the adjournment proposal is not a condition to the consummation of the merger.
Voting Procedures
Whether or not you plan to attend the virtual special meeting and regardless of the number of shares of common stock you own, your careful consideration of, and vote on, the merger agreement is important and we encourage you to vote promptly. To ensure that your shares of common stock are voted at the special meeting, we recommend that you provide voting instructions promptly by proxy, even if you plan to attend the virtual special meeting, using one of the following three methods:
Vote via the Internet. Go to www.proxyvote.com. Login details are located in the shaded bar on the proxy card mailed to you.
Vote by Telephone. Call toll free 1-800-690-6903 within the USA, U.S. territories and Canada.
Vote by Proxy Card. If you do not wish to vote by the internet or by telephone, please complete, sign, date and mail the enclosed proxy card in the envelope provided.
You may also vote by attending the virtual special meeting and voting during the live webcast.
If you hold your shares in “street name”, in other words your common stock is held in the name of your broker, you should have received a proxy card and voting instructions with these proxy materials from that organization rather than from the Company. In order to vote, complete and mail the proxy card received from your broker to ensure that your vote is counted. Alternatively, you may vote by telephone or over the internet as instructed by your broker. To vote at the virtual special meeting, you must obtain a legal proxy from your broker. The cut-off time for submitting a legal proxy is November 14, 2022 at 11:59 p.m. Eastern Time. Follow the instructions from your broker included with these proxy materials or contact your broker to request a proxy form. The timing described in the instructions from your broker may differ from the timing described above. Without following those instructions, your common stock held in “street name” will not be voted, which will have the same effect as a vote “AGAINST” the merger proposal.
For additional questions about the merger, assistance in submitting proxies or voting, or to request additional copies of this proxy statement or the enclosed proxy card, please contact Alliance Advisors LLC, which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at (855) 935-2549.
How Proxies Are Voted
If you complete and submit your proxy card or voting instructions, the persons named as proxies will follow your instructions. If you are a holder of record and you submit a proxy card or voting instructions but do not direct how to vote on each item, the persons named as proxies therein will vote in favor of the merger proposal, the advisory compensation proposal and the adjournment proposal.
Revocation of Proxies
For Cowen stockholders of record, any time after you have submitted a proxy card and before the proxy card is exercised, you may revoke or change your vote in one of three ways:
You may submit a new proxy card bearing a later date (which automatically revokes the earlier proxy or voting instructions) whether made on the internet, by telephone or by mail.
You may submit a written notice of revocation to the Company’s Secretary at 599 Lexington Avenue, New York, NY 10022.
You may attend the virtual special meeting and vote during the live webcast. Attendance at the virtual special meeting will not, in itself, constitute revocation of a previously granted proxy.
Please note that if you want to revoke your proxy by sending a new proxy card or a written notice of revocation to the Company, you should ensure that you send your new proxy card or written notice of revocation in sufficient time for it to be received by the Company prior to the special meeting.
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If you hold your shares in “street name”, you will need to revoke or resubmit your proxy through your broker and in accordance with its procedures. If your broker allows you to submit a proxy via the internet or by telephone, you may be able to change your vote by submitting a new proxy via the internet or by telephone (or by mail). In order to attend the virtual special meeting and vote during the webcast, you will need to obtain a proxy from your broker, the Cowen stockholder of record.
Solicitation of Proxies
The Company will bear the cost of soliciting proxies, including the expense of preparing, printing and distributing this proxy statement. In addition to soliciting proxies by mail, telephone or electronic means, we may request brokers to solicit their customers and will, upon request, reimburse them for the reasonable, out-of-pocket costs of forwarding proxy materials in accordance with customary practice. We may also use the services of our directors, officers and other employees to solicit proxies, personally or by telephone, without additional compensation. In addition, the Company has retained Alliance Advisors LLC to solicit proxies at a total cost to the Company of approximately $20,000, plus reimbursement of customary expenses.
Appraisal Rights
As a general matter, holders of common stock who do not vote in favor of the adoption of the merger agreement and the approval of the merger and otherwise comply with the requirements of Delaware law will be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company. You should read the section entitled “Appraisal Rights” beginning on page 120 of this proxy statement and Section 262 of the DGCL, a copy of which may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262, for a more complete discussion of dissenters’ appraisal rights. Holders of shares of preferred stock will of the Company also be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company.
Postponements and Adjournments
Although it is not currently expected, the special meeting may be adjourned for the purpose of soliciting additional proxies. If a quorum is not present at the special meeting, the Cowen stockholders entitled to vote at the special meeting, present virtually or by proxy, may adjourn the special meeting by a majority vote.
At any subsequent reconvening of the special meeting at which a quorum is present, any business may be transacted that might have been transacted at the special meeting, and all proxies will be voted in the same manner as they would have been voted at the original convening of the special meeting, except for any proxies that have been validly revoked or withdrawn prior to the reconvened meeting.
The date, time and place of the reconvened meeting shall be either (i) announced at the special meeting or (ii) provided at a future time through means announced at the special meeting (subject to certain restrictions in the merger agreement, including that the reconvened meeting generally may not be held, without Parent’s consent, on a date that is more than seven (7) business days in the case of any individual adjournment, or more than twenty (20) business days in the aggregate, after the date on which the special meeting was originally scheduled).
Voting by Company Directors, Executive Officers and Principal Securityholders
As of September 29, 2022, the directors and executive officers of the Company beneficially owned in the aggregate 1,858,433 shares of common stock, or approximately 6.6% of the outstanding shares of common stock. Although none of the directors or executive officers is obligated to vote to approve the merger proposal, we currently expect that each of these individuals will vote all of his or her shares in favor of each of the proposals to be presented at the special meeting.
The Company’s directors and executive officers have interests in the merger that may be different from, or in addition to, the interests of the Company’s stockholders generally. For more information, see the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
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Assistance
If you need assistance in completing your proxy card or have questions regarding the special meeting, please contact Alliance Advisors LLC, which is acting as the Company’s proxy solicitation agent in connection with the merger, toll free at (855) 935-2549.
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PROPOSAL 1: MERGER PROPOSAL
We are asking holders of common stock to vote on a proposal to adopt the merger agreement. Pursuant to the terms of the merger agreement, subject to the terms and conditions set forth therein, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation in the merger and as a wholly owned subsidiary of Parent. You are urged to carefully read this proxy statement in its entirety for more detailed information concerning the merger and the merger agreement, including the information set forth under the sections of this proxy statement captioned “The Merger” and “The Merger Agreement”. A copy of the merger agreement is attached as Annex A to this proxy statement. Approval of this proposal is a condition to the consummation of the merger. In the event this proposal is not approved, the merger cannot be consummated.
The Board unanimously recommends a vote “FOR” the approval of the merger proposal.
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PROPOSAL 2: ADVISORY COMPENSATION PROPOSAL
Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 and Rule 14a-21(c) under the Exchange Act, we are asking holders of common stock to approve, by advisory (non-binding) vote, the compensation that may be paid or become payable to our named executive officers in connection with the consummation of the merger. As required by those rules, the Company is asking holders of common stock to vote on the approval of the following resolution:
“RESOLVED, that the compensation that may be paid or become payable to the Company’s named executive officers in connection with the consummation of the merger, as disclosed in the table entitled “Potential Payments to Named Executive Officers”, including the associated narrative discussion, and the agreements, arrangements or understandings pursuant to which such compensation may be paid or become payable, are hereby APPROVED.”
The vote on executive compensation payable in connection with the consummation of the merger is a vote separate and apart from the vote to approve the merger proposal. Accordingly, you may vote to approve the merger proposal and vote not to approve such compensation and vice versa. Because the vote is advisory in nature only, it will not be binding on the Company or the Board. As the Company or Parent is contractually obligated to pay such compensation, such compensation will be paid or become payable, subject only to the conditions applicable thereto, if the merger is consummated and regardless of the outcome of the advisory vote.
The Board unanimously recommends a vote “FOR” the approval of the advisory compensation proposal.
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PROPOSAL 3: ADJOURNMENT PROPOSAL
The special meeting may be adjourned to another time and place to permit further solicitation of proxies, if necessary, to obtain additional votes to approve the merger proposal. The Company currently does not intend to propose adjournment of the special meeting if there are sufficient votes in favor of the merger proposal.
The Company is asking you to authorize the holder of any proxy solicited by the Board to vote in favor of any adjournment of the special meeting, if necessary, to solicit additional proxies if there are not sufficient votes in favor of the merger proposal at the time of the special meeting.
The Board unanimously recommends a vote “FOR” the approval of the adjournment proposal.
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THE MERGER
Overview
The Company is seeking the approval by the holders of common stock of the merger, in accordance with the terms and subject to the conditions of the merger agreement the Company entered into on August 1, 2022 with Parent and Merger Sub. Under the terms of the merger agreement, subject to the satisfaction or (if permissible under applicable law) waiver of specified conditions, Merger Sub will be merged with and into the Company, with the Company surviving the merger as a direct, wholly owned subsidiary of Parent. The Board has unanimously approved the merger agreement, the merger and the other transactions contemplated by the merger agreement and unanimously recommends that holders of common stock vote to approve the merger proposal.
Background of the Merger
The Company’s management and the Board regularly review the Company’s performance and prospects in light of its business and developments in the financial services industry and the macroeconomic environment. These reviews have included consideration, from time to time, of potential acquisitions, dispositions and other strategic transactions to enhance stockholder value, including potential sale transactions. Such reviews have been accompanied by periodic conversations between senior executives of the Company and their counterparts at other companies in the financial services industry regarding such potential transactions and opportunities.
On January 19, 2022, Mr. Riaz Ahmed, TD’s President and Chief Executive Officer, TD Securities and Group Head, Wholesale Banking, contacted Mr. Jeffrey Solomon, the Company’s Chair and Chief Executive Officer, to request a meeting with Mr. Solomon. An introductory meeting between Mr. Solomon, Mr. Ahmed and Mr. Robbie Pryde, TD Securities’ Executive Vice Chair and Head of Corporate and Investment Banking, took place on March 1, 2022, at which they discussed their respective businesses. During such conversation, representatives of TD indicated an interest in expanding TD’s investment banking business in the U.S. Mr. Solomon informed Mr. Brett Barth, the Board’s lead independent director, of the March 1 meeting (and the earlier January call) shortly thereafter.
On March 2, 2022, Mr. Solomon contacted Mr. Ahmed to inform Mr. Ahmed that, following the March 1 meeting and internal discussions, the Company would be interested in continuing the conversation regarding their respective businesses and potential opportunities for the Company and TD to consider.
On March 9, 2022, Mr. Solomon and Mr. Ahmed had a call to continue their conversation regarding their respective businesses and potential opportunities for the Company and TD to consider.
Also on March 9, 2022, the President and Chief Executive Officer of the securities business of Company A, a global financial institution, representatives of which had, from time to time, expressed interest in business opportunities with the Company, contacted a representative of Ardea, a financial advisor to the Company, to inquire, based on Ardea’s familiarity with the Company, whether Ardea was aware whether the Company might be interested in engaging in a potential strategic partnership with Company A. The representative of Ardea encouraged the representative of Company A to contact the Company directly if Company A was interested in pursuing discussions with the Company. The representative of Company A then contacted Mr. Solomon to schedule a meeting to discuss the potential for a strategic partnership between the Company and Company A. On March 17, 2022, Mr. Solomon met with a representative of Company A. During this meeting, Mr. Solomon and the representative of Company A discussed their respective businesses. Following this meeting, on March 21, 2022, the representative of Company A contacted Mr. Solomon to request a follow-up meeting with additional members of management of the Company and of Company A. Shortly thereafter, Mr. Solomon informed Mr. Barth of the inquiry from Company A, the March 17 meeting, and the March 21 request for a follow-up meeting.
On April 5, 2022, representatives of the Company including Mr. Solomon, Mr. Dan Charney, Managing Director and Co-President of the Company’s broker-dealer business, and Mr. Larry Wieseneck, Managing Director and Co-President of the Company’s broker-dealer business, met with Mr. Ahmed and Mr. Pryde. A representative of Perkins Advisors, LLC, a financial advisor to the Company (which we refer to as “Perkins Advisors”), also attended at the request of the Company’s management. During this meeting, management of the Company and of TD discussed their respective businesses, including a potential strategic partnership between TD and the Company.
On April 12, 2022, Mr. Solomon and Mr. Stephen Lasota, the Company’s Managing Director and Chief Financial Officer, met with representatives of Company A to discuss their respective businesses, including the
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growth of the research, sales and trading and investment banking divisions at Cowen, the alignment of Cowen’s culture with the culture at TD and the potential for a strategic partnership between Company A and the Company. A representative of Perkins Advisors also attended at the request of the Company’s management.
During the week of April 18, 2022, Mr. Solomon and Mr. Ahmed spoke on several occasions, during which Mr. Ahmed informed Mr. Solomon that TD had enjoyed their prior introductory meeting and wanted to continue conversations regarding a potential strategic partnership between TD and the Company. Mr. Ahmed proposed a follow-up meeting between management of the Company and of TD to discuss their respective businesses further, and Mr. Solomon informed Mr. Ahmed that he would discuss any further engagement with the Board at its upcoming meeting.
On April 21, 2022, the Board held a regularly scheduled meeting in person. During executive session, Mr. Solomon informed the independent directors of the Board (which we refer to collectively as the “Independent Directors”) of the interest from TD and Company A in exploring potential strategic partnerships with the Company. The Board also noted that other parties had, from time to time, expressed interest in a potential strategic transaction involving the Company. After discussion, the Board authorized Mr. Solomon to engage in discussions with TD, Company A and other parties that express interest regarding their respective interests in and the basic terms of a potential strategic transaction. The Board instructed Mr. Solomon not to discuss the terms of any proposal relating to compensation or retention arrangements for members of management until after the Board and a potential acquiror had reached an agreement on the price per share of common stock of the Company to be paid in a potential strategic transaction.
Later on April 21, 2022, TD sent the Company a draft mutual confidentiality agreement.
On April 22, 2022, the Company and TD entered into a mutual confidentiality agreement which contained a customary standstill provision that would automatically terminate upon the entry by the Company into a binding written agreement for the acquisition of the Company by a third party.
On April 28, 2022, Mr. Solomon met with Mr. Ahmed. During this meeting, Mr. Solomon and Mr. Ahmed discussed the potential strategic fit of the Company and TD, including the cultural fit and potential social issues associated with combining the two organizations and their respective employees. Following this discussion, Mr. Solomon and Mr. Ahmed agreed to schedule a meeting between the broader management teams of the Company and TD.
On May 6, 2022, the Board held a meeting by videoconference, with members of the Company’s management and representatives of Cravath, Swaine & Moore LLP (which we refer to as “Cravath”), outside counsel to the Company, attending. Mr. Solomon provided an update to the Independent Directors on discussions with TD regarding a potential strategic transaction, noting that TD continued to show interest in a potential transaction involving the Company and that the Company and TD had scheduled a meeting between their respective management teams to review management presentations during the following week. Mr. Solomon also noted that the Company’s management was planning a meeting with Company A in the coming weeks to continue a review of their respective businesses and to evaluate a potential strategic transaction with Company A. Representatives of Cravath then reviewed with the members of the Board their fiduciary duties and other legal matters. Representatives of the Company’s management then reviewed with the Board the Company’s existing financial forecasts, including a “base case” based on the Company’s existing internal plan for fiscal years 2022 and 2023 extended through fiscal year 2026 and a “high case” for the same period reflecting assumptions regarding an improved macroeconomic environment, increased activity in the Company’s core businesses and accelerated growth in the Company’s growth businesses (including the Company’s Cowen Digital businesses). Representatives of the Company’s management also reviewed with the Board the potential impact of certain potential divestitures on the Company’s financial forecasts. The Board then discussed the Company’s actual results to date during the second quarter of 2022. The Company’s management noted that, given the adverse macroeconomic environment, including a broader decline in equity markets and deal-making activity and rising interest rates during the quarter, actual revenue for the fiscal year 2022 across all core businesses was expected to be lower than the “base case” for fiscal year 2022. After discussion, the Independent Directors requested management to present its “low case” forecast reflecting the then-current market environment. Mr. Solomon noted that the Company’s management had prepared such a forecast for budgeting purposes for the 2022 fiscal year but had not previously extended such forecast beyond fiscal year 2022. The Independent Directors requested that the Company’s management extend such forecast through fiscal year 2026 and present such forecast at a subsequent Board meeting.
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On May 10, 2022, representatives of management of the Company and of TD met to review management presentations regarding their respective businesses. A representative of Perkins Advisors also attended at the request of the Company’s management. The Company’s management presentation included the Company’s “Base Case” and “High Case” financial forecasts for fiscal years 2022 and 2023, as described in the section entitled “The Merger—Financial Forecasts” beginning on page 61 of this proxy statement, which the Independent Directors had authorized the Company’s management to share with TD upon Mr. Solomon’s request following the May 6 Board meeting. The Company also provided TD with a summary of “change of control” severance payments that could potentially become payable to all Company employees entitled to such payments in connection with a qualifying termination following a “change of control”, which the Company estimated, based on an assumed closing of a transaction on September 30, 2022, to be equivalent to an aggregate amount of approximately $305 million (approximately $67 million of which was estimated to be attributable to pro rata bonuses). In addition, for all employees with “change of control” severance agreements, the Company estimated that there would be accelerated vesting of an aggregate of approximately 1.6 million shares of class A common stock in respect of Company RSUs and Company PSUs and approximately $17 million of deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation (assuming termination of employment for all such employees without cause in connection with a “change of control” on September 30, 2022). Such amounts included an estimated aggregate amount, for all Executives, of approximately $294 million of such payments (approximately $65 million of which was estimated to be attributable to pro rata bonuses) and accelerated vesting of an aggregate of approximately 1.5 million shares of class A common stock in respect of Company RSUs and Company PSUs and an estimated amount of approximately $17 million of deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation. Such amounts included, for Messrs. Charney and Wieseneck combined, an estimated aggregate amount of approximately $144 million of such payments (approximately $32 million of which was estimated to be attributable to pro rata bonuses) and accelerated vesting of an aggregate of approximately 0.7 million shares of class A common stock in respect of Company RSUs and Company PSUs and an estimated amount of approximately $5.5 million of deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation. During this meeting, representatives of the Company’s management and Perkins Advisors indicated to the representatives of TD that any indication of interest with respect to a potential transaction involving TD and the Company should be based on the Company’s intrinsic value (also taking into account the value of the Company’s investment management business and balance sheet investments) and should not be based on the then-current trading price of the class A common stock, which was $24.30 as of May 9, 2022, the last trading day before such meeting.
Following this meeting, representatives of TD informed representatives of the Company’s management that TD was interested in pursuing a potential acquisition of the Company, and that TD would provide an initial indication of the valuation of such an acquisition by the end of the following week. Representatives of TD also noted that TD would intend to keep the Company’s management team involved in the business after a potential acquisition though no terms of compensation, titles or responsibilities of members of the Company’s management team were discussed. Mr. Solomon informed representatives of TD that, while the Company was not seeking a sale of the Company at that time and that he did not expect the Board would be willing to pursue a sale of the Company at a valuation based on the then-current trading price of the class A common stock, which had fallen from $31.86 at the close of trading on January 19, 2022 (the date TD first contacted the Company to request a meeting) to $23.87 at the close of trading on May 10, 2022, the Company would evaluate any acquisition proposal with the Board.
On May 11, 2022, the Company sent Company A a draft mutual confidentiality agreement.
Later on May 11, 2022, Mr. Solomon met with Mr. Bharat Masrani, TD’s Group President and Chief Executive Officer, to further discuss a potential strategic transaction between the Company and TD. Mr. Masrani informed Mr. Solomon that TD was interested in expanding its broker-dealer business in the U.S., and that TD believed that an acquisition of Cowen would further that strategy given the Company’s strong business and cultural fit with TD.
On May 12, 2022, the Board held a meeting by videoconference, with members of the Company’s management and representatives of Cravath and Perkins Advisors attending. Mr. Solomon provided an update to the Independent Directors on the discussions with TD, noting that TD had expressed strong interest in a potential transaction and that management expected TD to provide an indication of the valuation of a potential acquisition of the Company by the
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end of the following week. Mr. Solomon also informed the Board that a meeting was being scheduled with Company A in the coming weeks to facilitate Company A’s continued review of the Company’s business. The Company’s management then reviewed with the Board updated preliminary financial forecasts for fiscal years 2022 through 2026, including a “low case”, “base case” and “high case” as requested by the Board on May 10, 2022, including key assumptions underlying each scenario. After discussion of the preliminary financial forecasts, the Board instructed management to share such preliminary financial forecasts with Ardea and to continue refining such preliminary financial forecasts. The Board had selected Ardea as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the transactions contemplated by the merger agreement. In selecting Ardea as a financial advisor, the Board also considered Ardea’s substantial industry knowledge and familiarity with the Company’s businesses. The Independent Directors also discussed with management whether any parties other than TD and Company A had expressed interest in a potential strategic transaction involving the Company. Mr. Solomon noted that, while certain other parties had in the past expressed informal interest in a potential strategic transaction involving the Company, such inquiries had not been recent and had not led to any substantive discussions. The Independent Directors determined that, given the potential disruption to the Company’s business of a potential public leak, it was advisable that the Company and its representatives not contact any other potential counterparties at that time, but for the Company’s management to continue engaging with TD and Company A and any other party that expressed interest in a potential strategic transaction involving the Company. The Independent Directors also requested that the Company’s management and Ardea review with the Independent Directors a list of other potentially interested parties and the likelihood that such parties would be able to execute a strategic transaction involving the Company at a subsequent meeting of the Board.
On May 16, 2022, the Company and Company A entered into a mutual confidentiality agreement which contained a customary standstill provision that would automatically terminate upon the entry by the Company into a binding definitive written agreement for the acquisition of the Company by a third party.
On May 18, 2022, the Board held a meeting by videoconference, with members of the Company’s management and representatives of Cravath and Perkins Advisors attending. Mr. Solomon provided an update to the Independent Directors on the discussions with TD and Company A, noting that management continued to expect TD to provide an indication of the value of a potential acquisition of the Company within the next week, and that management was continuing to provide information to facilitate diligence to TD and, now that Company A had signed a confidentiality agreement, Company A. The Board instructed management to continue discussions and continue sharing diligence information with TD and Company A. The Company’s management then reviewed again with the Board the financial forecasts reviewed with the Board on May 6, 2022, and also reviewed with the Board updated financial forecasts for fiscal years 2024 through 2026, including a “Low Case”, “Base Case” and “High Case” for fiscal years 2022 through 2026, which forecasts we refer to collectively as the “Financial Forecasts” and are described in more detail in the section entitled “The Merger—Financial Forecasts” beginning on page 61 of this proxy statement, including key assumptions underlying each scenario and the Company’s results to date during the second quarter of 2022. A discussion followed regarding macroeconomic conditions and conditions in the broader financial markets, the impact of such conditions and markets on the Company’s business and financial prospects and the trading price of the class A common stock, and the risks associated with remaining a standalone public company in such an environment, including the potential impact of a downturn on the Company’s profitability and therefore its ability to compensate and retain employees. The Board also discussed the relative probability of each of the scenarios reflected in the Financial Forecasts in light of such macroeconomic conditions and conditions in the broader financial markets, noting that the “High Case” was unlikely to be achieved, but did not assign any formal probabilities at that time. The Board also discussed the Company’s potential divestiture of certain of the Company’s assets, noting that several parties had expressed interest in exploring potential transactions involving some or all of such assets, but that the Company had not received any formal indications of interest for a specific proposal involving such assets. The Board further noted that the likelihood of executing any such divestitures in the immediate future was low given the macroeconomic conditions and conditions in the broader financial markets, and therefore that any valuation for the Company should assume that the Company retains all of its businesses. After discussion, the Board authorized the Company’s management to share the Financial Forecasts with Ardea and requested that Ardea prepare preliminary financial analyses for the Company on a standalone basis.
Over the following weeks, both TD and Company A conducted preliminary due diligence, including numerous calls and meetings with the Company’s management and review of documentary diligence materials,
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including copies of the Company’s “change of control” severance agreements, summaries of which had been provided to TD on May 10, 2022. Mr. Solomon and other members of the Company’s senior management and advisors periodically briefed and received input from the Independent Directors as to the due diligence processes with TD and Company A.
On May 19, 2022, representatives of Simpson Thacher & Bartlett LLP (which we refer to as “Simpson Thacher”), outside counsel to TD, contacted representatives of Cravath and communicated that, while TD was considering a proposal for an acquisition of the Company, TD would not be willing to pursue a transaction without restructuring and reducing the Company’s existing “change of control” severance obligations that would otherwise become payable in connection with a transaction. After discussion with Mr. Barth and representatives of the Company’s management team, representatives of Cravath communicated to representatives of Simpson Thacher a request that any proposal should include the proposed price to be paid per share of class A common stock in a potential transaction and, in order for the Board to assess whether any proposal were actionable, TD’s proposal regarding restructuring or reducing the Company’s “change of control” severance obligations.
On May 26, 2022, Mr. Solomon and Mr. Lasota, together with a representative from Perkins Advisors, met with a representative of Company A to continue a discussion of their respective businesses and a potential strategic partnership between the two companies, including a review of the Company’s “Base Case” and “High Case” forecasts for fiscal years 2022 and 2023.
Later on May 26, 2022, Mr. Ahmed contacted Mr. Solomon to inform Mr. Solomon that TD’s advisors would be communicating a non-binding proposal for an acquisition of all of the Company’s outstanding common stock later that day. Subsequently, a representative of Perella Weinberg Partners (which we refer to as “Perella Weinberg”) verbally communicated to a representative of Ardea TD’s non-binding proposal to acquire 100% of the outstanding common stock for $32.00 in cash per share of common stock (which we refer to as the “May 26 Proposal”), which proposal represented a 25% premium to the closing trading price for shares of class A common stock of $25.70 on May 25, 2022, the last trading day prior to the May 26 Proposal. The representative of Perella Weinberg also communicated that the May 26 Proposal was conditioned upon TD reaching satisfactory arrangements with all members of the Company’s management team with “change of control” severance agreements (including the Executives) requiring such members to waive their “good reason” resignation rights and “change of control” severance protections in connection with the potential transaction in exchange for retention awards that would vest over a three-year period after the closing of the potential transaction with a face value representing a substantial reduction compared to the aggregate estimated cash severance payable to such members of management under their existing contractual severance entitlements (with the proposed discount to such entitlements based primarily on a reduction of the underlying multiples of prior years’ compensation used to determine the amounts of cash severance payable from 2.5x of total compensation under the existing contractual arrangements to 1.5x to 2.0x of cash compensation (i.e., base salary and cash bonus), varying by individual).
Ardea communicated the May 26 Proposal, including the proposed reduction of the aggregate estimated value of the cash severance payable to members of management, to Mr. Barth and Mr. Solomon, as well as representatives of Cravath and Perkins Advisors. After discussion among Mr. Barth, the Company’s senior management and representatives of Ardea, Perkins Advisors and Cravath, it was determined that the May 26 Proposal undervalued the Company and was likely below a valuation that the Board would be willing to consider for a sale of the Company. Mr. Solomon updated each of the Independent Directors on the May 26 Proposal and informed them that Mr. Solomon and the Company’s management team recommended ceasing further engagement unless the proposed price of $32.00 in cash per share of common stock reflected in the May 26 Proposal was improved substantially.
On May 30, 2022, a representative of Ardea, acting upon the instructions of the Company, communicated to a representative of Perella Weinberg that the May 26 Proposal undervalued the Company and that the Company would not be engaging in any further discussions regarding a potential strategic transaction.
On May 31, 2022, Mr. Ahmed contacted Mr. Solomon. Mr. Solomon reiterated that the valuation of the May 26 Proposal did not warrant further discussion. Mr. Ahmed informed Mr. Solomon that TD would conduct further diligence and valuation analysis prior to submitting a revised proposal. Mr. Solomon informed Mr. Barth of the discussion.
During the remainder of the week of May 30, 2022, TD continued due diligence, including due diligence meetings and calls on June 2, 2022, June 3, 2022 and June 4, 2022 between representatives of management of
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TD and of the Company to discuss the potential sources of value in the Company’s business outside of the Company’s core investment banking and broker-dealer franchise (including the value of the Company’s investment management business and balance sheet investments). Representatives of Perella Weinberg and Perkins Advisors also participated in the due diligence meetings and calls.
On June 5, 2022, Mr. Ahmed contacted Mr. Solomon and verbally communicated to Mr. Solomon TD’s revised non-binding proposal to acquire 100% of the outstanding common stock for $39.00 in cash per share of common stock (which we refer to as the “June 5 Proposal”), which proposal represented a 49% premium to the closing price for shares of class A common stock of $26.18 on June 3, 2022, the last trading day prior to the June 5 Proposal. The June 5 Proposal contained the same conditionality as the May 26 Proposal, including TD reaching satisfactory arrangements with each member of the Company’s management team with “change of control” severance agreements. Mr. Solomon informed Mr. Ahmed that he would need to discuss the revised proposal with the Board. A representative of Perella Weinberg also contacted a representative of Ardea and verbally communicated the June 5 Proposal later that day, and noted that the additional due diligence and analysis of the Company’s investment management business had enabled TD to increase its proposal from the May 26 Proposal.
On June 6, 2022, the Board held a meeting by videoconference, with members of the Company’s management and representatives of Cravath, Ardea and Perkins Advisors attending. Mr. Solomon communicated the June 5 Proposal to the Independent Directors, and Mr. Solomon and representatives of Ardea described to the Independent Directors their respective conversations with TD and its advisors. The Board then discussed a potential response to the June 5 Proposal, noting that the June 5 Proposal had been communicated verbally and did not include a description of any contingencies to the proposal or any further details on the May 26 Proposal with respect to retention arrangements with members of the Company’s senior management team in lieu of “change of control” payments, and that while Company A was continuing to conduct due diligence, Company A had not yet submitted an indication of interest. Representatives of Ardea noted that Ardea was reviewing the Financial Forecasts with the Company’s management, including reconciling economic operating income to unlevered free cash flow for purposes of a preliminary valuation analysis, and that Ardea would prepare preliminary financial analyses of the June 5 Proposal for discussion at a subsequent meeting of the Board. After discussion the Board determined to continue evaluating the June 5 Proposal, but not to request a written proposal from TD at that time. The Board then discussed whether any other third party may be interested in an acquisition of the Company, including Ardea’s views on potential bidders based on Ardea’s knowledge of the industry and information from management on third parties that had previously expressed interest in partnerships or other strategic transactions involving the Company. After discussion, the Board determined that there was a limited number of counterparties that may be interested in and able to execute an acquisition of the Company, and that given the risk of a leak and the potential damage to the Company’s business and employee retention in the event of a leak, it was advisable to continue discussions with TD and Company A but not to contact other parties regarding a potential transaction at that time. The Board then instructed the Company’s management and advisors to continue discussions with, and request an indication of interest from, Company A. The members of Company management then informed the Board that it was also evaluating the implementation of potential cost cutting measures in light of the then-current economic environment and its impact on the Company’s performance, but that management would defer any decision on such implementation until the conclusion of the ongoing discussions with third parties regarding a partnership or other strategic transaction involving the Company. The members of Company management, Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session with representatives of Cravath participating. The Independent Directors further discussed a potential response to the June 5 Proposal, noting that the proposal represented a substantial increase of over 20% from the May 26 Proposal, that, during that same period, the Company’s financial performance had continued to be impacted by downward trends in the financial markets, and the risks associated with remaining a standalone public company in such an environment, including the potential impact of a downturn on the Company’s profitability and therefore its ability to compensate and retain employees. The Independent Directors also noted that the May 26 Proposal and June 5 Proposal were conditioned upon TD reaching satisfactory arrangements with certain members of the Company’s senior management related to the “change of control” severance entitlements, that there was a risk that TD would not be able to reach an agreement with all requisite members of the Company’s senior management, and that it was unlikely that TD or any other potential bidder that was expecting to retain the Company’s senior management team after an acquisition of the Company would be willing to pursue a transaction without reaching an agreement on retention
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arrangements given the relative size of the “change of control” severance entitlements compared to the Company’s then-current market capitalization. The Independent Directors discussed that the Independent Directors should continue to direct the process, and that, while the Company’s management should not discuss the terms of any proposal relating to compensation or retention with potential counterparties to a transaction at that time, the Company’s management itself was a key asset of the Company and such discussions would need to occur at a later date when authorized by the Independent Directors in order to facilitate a transaction.
On June 7, 2022, Mr. Ahmed contacted Mr. Solomon to discuss the status of the Board’s evaluation of the June 5 Proposal. Mr. Solomon informed Mr. Ahmed that the Board was evaluating the June 5 Proposal with its financial advisors and that the Company would respond once that evaluation was complete.
On June 8, 2022, representatives of Simpson Thacher contacted representatives of Cravath to discuss the status of the Board’s evaluation of the June 5 Proposal. Representatives of Cravath informed the representatives of Simpson Thacher that the Board was evaluating the June 5 Proposal with its financial advisors and that the Company would respond once that evaluation was complete, and that the Board did not have a fixed timeline for that evaluation.
Also on June 8, 2022, representatives of management of Company A and of the Company held a diligence call to discuss the potential sources of value in the Company’s business outside of the Company’s core investment banking and broker-dealer franchise (including the value of the Company’s investment management business and balance sheet investments). Representatives of Perkins Advisors also participated in that meeting. During this meeting, representatives of the Company’s management and Perkins Advisors indicated to the representatives of Company A that any indication of interest should reflect the net consideration payable to the holders of common stock based on the Company’s intrinsic value (also taking into account the value of these businesses and investments) and should not be based on the then-current trading price of the class A common stock, which was $25.04 as of June 9, 2022, the last trading day before such meeting.
Later on June 8, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Ardea and Perkins Advisors attending. Mr. Barth opened the meeting by noting that, because the Financial Forecasts included the “Low Case”, “Base Case” and “High Case”, Ardea had requested that the Independent Directors provide instructions to Ardea regarding which of such scenarios to utilize for purposes of Ardea’s preliminary financial analyses of the June 5 Proposal and the relative weighting of such scenarios. Mr. Barth then requested that the Company’s management provide an update to the Independent Directors on the Company’s performance to date in the second quarter and near-term and long-term outlook. Mr. Solomon, Mr. Charney and Mr. Wieseneck then provided an update on the Company’s financial performance, noting revenue declines in the Company’s core businesses as compared to the annual budget as a result of reduced mergers & acquisitions and capital markets activity in the second quarter, particularly in industries such as biotechnology and special purpose acquisition vehicles in which the Company was active, as well as an expected decline in incentive fees for the Company’s investment management business as a result of declining asset values. Mr. Solomon noted that, while the macroeconomic outlook was difficult to predict, if the then-current business trends continued through the remainder of 2022, the Company’s performance would likely be below the Low Case Financial Forecasts and, absent a partnership or other strategic transaction involving the Company, that management would look to implement cost cutting measures to counteract the impact of such trends on the Company’s performance. The Board also requested Ardea’s views on the Financial Forecasts compared to updated Wall Street equity research analyst consensus estimates for the Company’s future earnings. Representatives of Ardea noted that at that point in time, Wall Street equity research analyst consensus estimates for the Company’s future earnings for fiscal years 2022 and 2023 were approximately half-way between the Low Case and the Base Case Financial Forecasts, but that not all analysts that covered the Company had updated their published forecasts recently and that such forecasts may decline further following the Company’s second quarter earnings announcement. The Board then discussed the weighting of the Financial Forecasts for purposes of Ardea’s preliminary financial analyses, noting that while the Company’s performance was difficult to project over the long term given volatility in the financial markets, based on then-current trends, the Low Case was the most likely of the scenarios reflected in the Financial Forecasts to occur. After discussion, the Independent Directors unanimously instructed Ardea to assign a probability weighting of 55% to the Low Case, 35% to the Base Case and 10% to the High Case in performing its financial analyses (which we refer to as the “Weightings”). The Independent Directors also instructed Ardea to assume, for purposes of its preliminary financial analyses, that the Company would remain a standalone public company and maintain the status quo for its business mix (without
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executing any divestitures of any of the Company’s assets), given the uncertainty in asset prices and the fact that the Company had commenced a divestiture process for certain assets but had not yet received any formal indications of interest for a specific proposal involving such assets. Mr. Solomon and representatives of Cravath informed the Independent Directors of the outreach from TD and Simpson Thacher regarding the timing of the Board’s evaluation. The Board determined that it would convene a subsequent meeting once Ardea had prepared preliminary financial analyses based on the instructions provided by the Independent Directors prior to responding to TD. The Company’s management also provided an update on the status of Company A’s ongoing due diligence, and the Board instructed the Company’s management to continue facilitating such due diligence.
On June 10, 2022, Mr. Solomon met with representatives of Company A, including the Chief Executive Officer of Company A’s U.S. business, to discuss the potential strategic and cultural fit of their respective businesses.
On June 12, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris, Nichols, Arsht & Tunnell LLP (which we refer to as “Morris Nichols”), outside Delaware counsel to the Company, Ardea and Perkins Advisors attending. Ardea provided an overview of their preliminary financial analyses of the June 5 Proposal based on the Financial Forecasts and the Weightings. Representatives of Cravath then reviewed with the Board draft process guidelines that had been circulated to the Board in advance of the meeting, which reiterated instructions that the Company’s management should not discuss the terms of any proposal relating to compensation or retention with potential counterparties to a transaction until specifically authorized to do so by the Independent Directors, and stated that the Independent Directors would direct the process and have ultimate decision-making authority with respect to all questions arising from such process. The guidelines also specified that at least one representative of Ardea should be included in any substantive communications with potential counterparties to a transaction on behalf of the Company, and that all such communications should be promptly reported to the Independent Directors.
After discussion, the Board adopted such guidelines. Mr. Solomon noted to the Board that, while management did not intend to negotiate compensation or retention arrangements with TD or other potential counterparties until specifically authorized to do so by the Board, Mr. Solomon expected, based on preliminary discussions with individual members of the Company’s senior management team, that the retention arrangements communicated verbally in the May 26 Proposal would be inadequate to retain all desired members of the Company’s management and that TD would likely need to improve the value and vesting terms of such retention arrangements if TD’s proposals continued to be contingent on such arrangements. Mr. Solomon then provided the Board with an update on discussions with TD and Company A, noting that TD was awaiting a response to the June 5 Proposal and that Company A had continued to show interest in a potential transaction, including hiring a financial advisor and engaging members of senior management in meetings with the Company. After discussion, the members of Company management exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. The Independent Directors discussed the June 5 Proposal and potential responses to TD, including that TD had already materially increased its proposal by over 20% between the May 26 Proposal and the June 5 Proposal despite a continuing decline in broader financial markets, and whether TD would be willing to further improve the price of its proposal above $39.00 per share. After discussion, the Independent Directors instructed Ardea and Perkins Advisors to communicate to Perella Weinberg that the $39.00 per share of common stock proposed in the June 5 Proposal was insufficient, and that TD should submit an improved proposal in writing, which should also include details on any contingencies relating to retention arrangements with members of the Company’s management and the proposed terms of such retention arrangements so that the Board could assess whether a transaction would be achievable on the terms proposed. The Independent Directors authorized Ardea and Perkins Advisors to communicate to TD that the Board expected a valuation of at least $42.00 per share of common stock, which would represent an increase of $10.00 per share from the May 26 Proposal. The Independent Directors also instructed Ardea and Perkins Advisors to continue engagement with Company A, and to encourage Company A to submit an indication of interest by the end of the week of June 13, 2022. Representatives of Ardea and Perkins Advisors then exited the meeting, and the Independent Directors continued an executive session, with representatives of Cravath and Morris Nichols attending. The Independent Directors then discussed the formal retention of Ardea as a financial advisor to the Company, noting that Ardea had provided disclosure to the Board confirming that Ardea did not have any material business relationships with TD, Company A or other potentially interested parties. After discussion, the Independent Directors determined that it was advisable to continue with negotiating the terms of Ardea’s engagement. The Independent Directors also discussed the formal retention of Perkins Advisors as a financial advisor to the Company, noting that Perkins Advisors had substantial industry knowledge and familiarity with Cowen’s businesses, including a long-standing relationship with the Company and its management. After discussion, the
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Independent Directors determined that it was advisable to formally engage Perkins Advisors in connection with the transaction, subject to compliance with the process guidelines discussed earlier in the meeting. The Independent Directors also reaffirmed the proposed response to TD that had been discussed with Ardea and Perkins Advisors.
Later on June 12, 2022, at the instruction of the Independent Directors, representatives of Ardea and Perkins Advisors contacted representatives of Perella Weinberg and communicated that the $39.00 per share of common stock proposed in the June 5 Proposal was insufficient and that the Board had requested an improved proposal in writing. The representatives of Ardea and Perkins Advisors also noted that the Board expected a valuation of at least $42.00 per share of common stock in order for the Board to be willing to approve a transaction at that time, and expected that a written proposal would contain details on any contingencies relating to retention arrangements with members of the Company’s management and the proposed terms of such retention arrangements. Representatives of Perella Weinberg responded that they were disappointed with the response but would update TD.
On June 13, 2022, Mr. Barth and Mr. Solomon spoke with Mr. Ahmed to reiterate the message communicated by Ardea and Perkins Advisors and request an improved proposal in writing.
Also on June 13, 2022, at the instruction of the Independent Directors, representatives of Ardea and Perkins Advisors contacted representatives of Company A and encouraged Company A to submit an indication of interest by the end of the week of June 13, 2022. Representatives of Company A subsequently responded that Company A would need at least 10 days to formulate an indication of interest with a proposed valuation for an acquisition of the outstanding common stock of the Company.
On June 14, 2022, Mr. Solomon met with a representative of Company A, during which the representative of Company A conducted further diligence on the Company’s business and the potential strategic rationale for an acquisition of the Company and discussed potential social issues arising from such a combination, including the potential integration of the Company into Company A’s existing business lines and potential roles for the Company’s management team, with some business lines potentially led by current employees of the Company and some business lines led by existing employees of Company A. No financial terms of a potential transaction or proposed terms for retention arrangements regarding Company management were discussed.
On June 15, 2022, representatives of TD sent a letter to Mr. Barth reflecting a non-binding proposal to acquire 100% of the Company’s common stock for $39.00 in cash (which we refer to as the “June 15 Proposal”). The June 15 Proposal was expressly conditioned upon all members of the Company’s management team with “change of control” severance agreements (including the Executives) waiving their rights under such existing agreements and entering into new retention arrangements with TD on terms set forth in the June 15 Proposal. With respect to the Executives, the terms of such arrangements set forth in the June 15 Proposal included, among others, (i) the grant of a retention award to each Executive, which the Company estimated to be equivalent to an aggregate amount, for all Executives, of approximately $120 million, with 25% of each such award payable in cash at the closing of the potential transaction and 75% of each such award to be granted in the form of restricted share units in TD common stock vesting in equal installments on each of the first three anniversaries of such closing, and (ii) the payment of a pro rata bonus to each Executive for the year of such closing based on actual performance of the Company through the date of such closing (rather than based on the average annual bonus of such Executive for the two years immediately preceding the year of employment termination, as provided in the existing “change of control” severance agreement of such Executive), which the Company estimated to be equivalent to an aggregate amount, for all Executives, of approximately $23 million, assuming such closing occurred by the end of calendar year 2022. The Company estimated the foregoing awards and payments to be equivalent to an aggregate amount, for all Executives, of approximately $143 million. In addition, in its June 15 Proposal, TD proposed the restructuring of all Executives’ unvested Company compensation awards to extend the existing vesting schedule of such awards so as to vest in equal installments on each of the first three anniversaries of such closing (to the extent such restructuring would be permitted pursuant to applicable tax laws). The June 15 Proposal was also conditioned upon completion of due diligence and also included a draft exclusivity agreement that would require the Company to terminate negotiations with any other party regarding a potential transaction and negotiate exclusively with TD for a period of four weeks from the date of the exclusivity agreement. The June 15 Proposal purported to expire on June 19, 2022, unless the Company and TD had entered into such exclusivity agreement by such date.
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On June 16, 2022, representatives of Perella Weinberg and representatives of Ardea and Perkins Advisors had a call to discuss the June 15 Proposal. The representatives of Perella Weinberg communicated that TD was not willing to increase the proposed acquisition price above $39.00 per share previously communicated in the June 5 Proposal. The representatives of Ardea and Perkins Advisors indicated that they would discuss the June 15 Proposal with the Board.
Also on June 16, 2022, representatives of Company A spoke with a representative of Perkins Advisors and communicated that Company A was working to submit an indication of interest for an acquisition of all of the outstanding common stock of the Company during the week of June 20. A representative of Company A also communicated that Company A had analyzed potential integration plans and envisioned roles for Mr. Solomon, Mr. Charney and Mr. Wieseneck in the combined organization. The representative of Perkins Advisors encouraged the representatives of Company A to submit its proposal as promptly as possible.
Later on June 16, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Representatives of Ardea provided an overview of the June 15 Proposal and reviewed their preliminary financial analyses of the June 15 Proposal. Representatives of Cravath then reviewed with the members of the Board their fiduciary duties and other legal matters. Representatives of Ardea and Perkins Advisors then provided an update to the Board on their recent discussions with Perella Weinberg and with representatives of Company A. The Board then discussed the June 15 Proposal, noting that TD had been unwilling to increase the proposed price per share of common stock beyond $39.00 per share, but that TD had maintained such proposed price per share despite a broader decline in equity markets and an approximate 13% decline in the trading price of the class A common stock from $26.18 on June 3, 2022, the last trading day prior to the June 5 Proposal, to $22.88 on June 15, 2022. After discussion, the Independent Directors determined that while $39.00 per share of common stock represented compelling value for the Company, particularly in light of the market environment, TD had not increased its proposal from the June 5 Proposal and the Independent Directors were not willing to grant exclusivity, which could have precluded a competing proposal from Company A or any other interested party, at such valuation. After discussion regarding a potential response and counter-proposal to TD, the Board determined that it would convene a subsequent meeting the next day to continue discussion of a response to the June 15 Proposal.
On June 17, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. The Board continued discussions regarding the June 15 Proposal, including the fact that the June 15 Proposal was conditioned upon all members of the Company’s senior management team with “change of control” severance agreements waiving their rights under their existing “change of control” severance agreements and entering into retention arrangements representing a reduction in value as compared to such agreements, and that there was no guarantee that all members of the Company’s senior management team would be willing to do so absent agreement on roles and responsibilities with TD. Mr. Solomon noted that while he expected that there would be a negotiation among members of the Company’s senior management team and TD regarding the proposed retention arrangements if and when the Independent Directors authorized management to engage in such negotiations, he expected that satisfactory arrangements could be reached because the requisite members of the Company’s senior management team had expressed to Mr. Solomon that they would be willing to negotiate compensation arrangements that had a lower value than their existing “change of control” severance entitlements if so required in connection with a transaction. The members of Company management and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath, Morris Nichols and Ardea participating. In executive session, the Independent Directors discussed a potential response to the June 15 Proposal. After discussion, the Independent Directors instructed Ardea to communicate to TD that, while the June 15 Proposal was insufficient to warrant exclusivity, the Board would be willing to engage in further discussions and to authorize members of the Company’s management to engage in discussions with TD regarding post-closing employment and compensation arrangements if TD increased its proposal to $41.00 per share, and that the Board would be willing to consider exclusivity only after TD had increased its proposal to $41.00 per share and satisfied the other conditions to the June 15 Proposal, including completion of TD’s substantive due diligence and agreement on satisfactory retention arrangements with members of the Company’s management. The Independent Directors also discussed potential communications to Company A in order to cause Company A to provide an indication of interest on an accelerated timeframe, and instructed Ardea to communicate to Company A that any indication of interest needed to be delivered to the Company by the close
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of business on June 22, 2022. Representatives of Ardea then exited the meeting, and the Independent Directors continued the executive session, with representatives of Cravath and Morris Nichols participating. The Independent Directors discussed the continued deterioration in the macroeconomic environment and broader financial markets reflected in the Company’s then-current stock price, which had declined to a 52-week low of $21.36 on June 16, 2022, and noted that the Independent Directors shared the Company management’s continuing concern for the Company’s business outlook if that environment continued.
On June 17, 2022, following the Board meeting, representatives of Ardea communicated the Independent Directors’ position to representatives of Perella Weinberg. Shortly thereafter, representatives of Perella Weinberg contacted representatives of Ardea and communicated that TD was unwilling to increase its proposal above $39.00 per share of common stock given the continued decline in equity market conditions since TD had first communicated a proposal of $39.00 per share of common stock on June 5, 2022. Mr. Barth and Mr. Solomon also contacted Mr. Ahmed to communicate the Independent Directors’ position to Mr. Ahmed directly, and Mr. Ahmed reiterated that TD was unwilling to increase its proposal above $39.00 per share of common stock given market conditions and the impact of market conditions on the Company’s recent performance and short-term outlook.
Also on June 17, 2022, representatives of Ardea and Perkins Advisors contacted representatives of Company A’s financial advisor and indicated that the Company’s timetable for evaluating alternatives had shifted and requested that Company A submit an indication of interest by the close of business on June 22, 2022. Representatives of Company A’s financial advisor responded that, based on internal scheduling, it was unlikely that Company A would be in a position to submit an indication of interest on such timetable. Subsequent to that discussion, a representative of Company A contacted a representative of Perkins Advisors to discuss the timetable, and indicated that Company A would endeavor to submit an indication of interest promptly. The representative of Company A also indicated that Company A would like to discuss “change of control” severance arrangements with members of the Company’s management. The representative of Perkins Advisors replied that the Independent Directors would not authorize the Company’s management to engage in such discussions until the Board had received a proposal for the value that Company A was prepared to offer to the holders of common stock and the Board had evaluated such proposal.
Later on June 17, 2022, the Board reconvened a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Mr. Barth and representatives of Ardea and Perkins Advisors provided updates to the Board on discussions with representatives of TD and Company A after the earlier Board meeting. The Board then discussed proposed responses and communications to each of TD and Company A. The Board noted that the Company had already requested that TD improve its proposal on three occasions, and on each occasion TD had reverted with a proposal of $39.00 per share of common stock and had repeatedly expressed an unwillingness to improve such proposal. The Board also noted that while Company A had not yet submitted an indication of interest, Company A continued to express strong interest in a potential acquisition of the Company and, given similarities in the Company’s and Company A’s respective businesses, Company A may be able to achieve greater cost synergies (but lower revenue synergies) than TD in a potential transaction. After discussion, the Board determined that, in light of the value reflected in the June 15 Proposal compared to the Company’s prospects as a standalone public company, including the risks of operating in any prolonged market downturn, it was advisable and in the best interests of the Company and its stockholders to pursue further discussions with TD on the basis of the June 15 Proposal, but that the Board was not willing to grant exclusivity to TD, given that TD had not improved its proposal above $39.00 per share of common stock and that Company A had not yet submitted an indication of interest. The members of Company management and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session with representatives of Cravath, Morris Nichols and Ardea participating. The Independent Directors noted that while the Board was willing to pursue further discussions with TD on the basis of the June 15 Proposal, the June 15 Proposal was not actionable absent an agreement between TD and members of the Company’s management regarding retention arrangements. After discussion, the Independent Directors authorized management to begin discussions with TD regarding post-closing compensation and retention arrangements, subject to guidelines for the conduct of such discussions to be prepared by Cravath and adopted by the Independent Directors, including requirements that members of the Company’s management keep the Independent Directors apprised of any material developments with respect to such discussions, that management not finalize any arrangements with TD or memorialize any arrangements in definitive written agreements until the Independent Directors had authorized management to do so, that management continue interacting with other interested counterparties where directed by the Independent Directors and that members of management retain separate legal counsel in their individual capacities to represent members of management in negotiations of any
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compensation or retention arrangements with TD. The Independent Directors instructed Ardea to communicate this authorization to Perella Weinberg, and Cravath to communicate these guidelines to the Company’s management team. Representatives of Ardea then exited the meeting, and the Independent Directors continued the executive session, with representatives of Cravath and Morris Nichols participating. The Independent Directors discussed the difficulties associated with retaining management and key employees in a prolonged downturn, and the importance to a potential transaction with TD that TD reach agreement with the Company’s management on satisfactory retention arrangements.
Following the Board meeting, representatives of Ardea communicated the Board’s response to representatives of Perella Weinberg, and Mr. Solomon, acting upon the authorization of the Independent Directors, contacted Mr. Ahmed to inform Mr. Ahmed that management had been authorized to begin discussing compensation or retention arrangements with TD.
Beginning on June 18, 2022, Mr. Solomon held numerous meetings and conversations with Mr. Ahmed over the following weeks, with other representatives of management of TD and the Company participating in certain discussions, to discuss a variety of topics related to compensation and retention, including potential management structure and reporting lines following a potential transaction, TD’s proposed retention arrangements and post-closing compensation arrangements for the Company’s senior management team (including whether such compensation would be guaranteed or based on target bonus levels) and the companies’ respective compensation philosophies for other employees. These discussions spanned numerous topics regarding elements of the post-closing compensation structure for non-management employees of the Company, Company management’s role in determining compensation for Company employees post-closing and assurances that could be communicated to the Company’s employees prior to closing a potential transaction in order to ensure that the Company would be able to continue to recruit and retain key employees prior to closing. Mr. Solomon regularly updated Cravath and the Independent Directors on these discussions.
During this period, the Company also continued discussions with Company A regarding a potential transaction and continued providing due diligence information to Company A, and on June 20, 2022, Mr. Barth had a conversation with a representative of Company A to discuss the status of Company A’s evaluation and to reiterate that Company A would need to submit a proposal promptly in order for the Board to consider such proposal.
On June 22, 2022, Company A sent a letter to Mr. Barth reflecting a non-binding proposal to acquire 100% of the Company’s common stock based on an aggregate purchase of $1.45 billion, subject to reduction based on (i) any “change of control” payments or similar entitlements of the Company’s management and employees, (ii) any future guaranteed payments by Company A to retain identified existing Company personnel and (iii) the principal payment of the preferred stock (which we refer to as the “June 22 Company A Proposal”). The June 22 Company A Proposal was also subject to due diligence, and requested that the Company terminate negotiations with any other party regarding a potential transaction and negotiate exclusively with Company A for a period of 60 days from the date of the Company’s acceptance of the Proposal. The June 22 Company A Proposal was also subject to various regulatory approvals, including anticipated approvals required from the Federal Reserve Board and international banking regulators.
Following receipt of the June 22 Company A Proposal, representatives of Ardea and Perkins Advisors contacted representatives of Company A’s financial advisor to discuss the June 22 Company A Proposal, and indicated that, while the June 22 Company A Proposal did not attempt to quantify the potential adjustments to the purchase price or the net consideration to the holders of common stock, based on the Company’s fully diluted share count and existing “change of control” severance arrangements, Ardea estimated the net price to holders of common stock to be approximately $30 to $32 per share of common stock, which representatives of Company A’s financial advisor signaled agreement with. Representatives of Ardea and Perkins Advisors indicated that they would discuss the proposal with the Board, but indicated disappointment with both the valuation and the fact that, despite the Company’s prior requests, the June 22 Company A Proposal was not based on the net consideration payable to the holders of common stock.
On or about June 23, 2022, the Executives responded to TD with a counterproposal to the terms of the proposed new retention arrangements included in the June 15 Proposal, the terms of which included, among others, (i) the payment of the retention awards included in the June 15 Proposal in cash in equal installments on each of the first three anniversaries of the closing of a potential transaction in lieu of the restricted share units in TD common stock included in the June 15 Proposal, which the Company estimated to be equivalent to an
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aggregate amount, for all Executives, of approximately $183 million, and (ii) the payment of a pro rata bonus to each Executive for the year of such closing in an amount equal to 80% of such Executive’s pro rata bonus entitlement under such Executive’s existing “change of control” severance agreements, which the Company estimated to be equivalent to an aggregate amount, for all Executives, of approximately $52 million, assuming such closing occurred on September 30, 2022. The Company estimated the foregoing awards and payments to be equivalent to an aggregate amount, for all Executives, of approximately $235 million. In addition, the Executives proposed that the Executives’ unvested Company compensation awards would not be restructured and would continue to vest on their original vesting schedule.
On June 24, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Representatives of Ardea reviewed the economic terms of the June 22 Company A Proposal and provided an overview of their discussion with Company A’s financial advisor. After discussion, the Board determined that, given the valuation and uncertainty associated with the June 22 Company A Proposal, the June 22 Company A Proposal was insufficient in its current form. Mr. Solomon then provided an update to the Independent Directors on the status of negotiations between members of management and TD regarding compensation matters, noting that while progress had been made on the individual retention arrangements for members of management and TD, no agreement had yet been reached on such arrangements between the Executives and TD and discussions were also ongoing regarding post-closing compensation structures for the remaining employees to ensure the success of the combined business and retention of employees prior to closing the potential transaction. The Board then discussed whether, in light of the June 22 Company A Proposal, it was advisable to contact any other potential counterparties to assess interest in a potential transaction with the Company. The Board discussed that, while a limited number of potential counterparties may be interested in a transaction involving the Company, making such outreach would increase the risk of a potential public leak, which would have an adverse impact on the Company’s business, and that certain counterparties may attempt to recruit the Company’s key employees in the event of a leak. The members of Company management then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. The Independent Directors discussed a potential response to the June 22 Company A Proposal. After discussion, the Independent Directors instructed Ardea to communicate to Company A that the June 22 Company A Proposal was insufficient, that any revised proposal should be based solely on the net price per share payable to the holders of common stock, and Company A’s proposed price per share of common stock would need to be at or above $40.00; otherwise Company A would risk losing the opportunity for a transaction involving the Company. The representatives of Ardea and Perkins Advisors then exited the meeting, and the Independent Directors continued the executive session, with representatives of Cravath and Morris Nichols participating. After discussion among the Independent Directors and representatives of Cravath and Morris Nichols, the Independent Directors determined that it was advisable, given the risk of a potential leak and the potential impact of a leak on the organization (including employee retention), for the Company to continue discussions with TD and Company A but not to contact any other potential counterparties at that time. Following the meeting, representatives of Ardea and Perkins Advisors communicated the Board’s response to Company A.
On June 27, 2022, a representative of Company A contacted Mr. Barth to discuss the Board’s response to the June 22 Company A Proposal. The representative of Company A reiterated Company A’s interest in a strategic transaction involving the Company and noted that Company A had accelerated its evaluation of a potential transaction based on guidance from the Company. Mr. Barth confirmed that while the Board was appreciative of Company A’s interest, the structure of the June 22 Company A Proposal was problematic and that in order to properly evaluate a proposal, the Board would need an indication of value, net to the holders of common stock. The representative of Company A noted that the Company’s existing “change of control” severance obligations made it difficult to provide certainty of value. In response, Mr. Barth explained that Company A would be permitted to separately negotiate retention arrangements with members of management with “change of control” severance agreements, but that the Independent Directors and Company A would need to reach an agreement on the price per share of common stock first. The representative of Company A highlighted that Company A would not pay the full value of the Company’s existing “change of control” severance obligations and would propose to pay management significantly lower amounts in respect of retention, or else to forgo retention awards entirely and have management remain in their current roles with the Company after the consummation of a potential transaction. Mr. Barth reiterated that this was for the Company’s management to negotiate with Company A if Company A and the Independent Directors first reached an agreement on price. The representative of Company A and Mr. Barth also discussed the overall valuation of the June
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22 Company A Proposal, with Mr. Barth reiterating that the Independent Directors had requested that any revised proposal include a price per share of common stock at or above $40.00. The representative of Company A replied that Company A did not have an ability to pay a price anywhere in the vicinity of $40.00 per share of common stock.
During the week of June 25, 2022, representatives of management of the Company and TD continued discussions regarding due diligence and compensation matters, including providing TD and its advisors with access to the Company’s full data room and discussing compensation structures for the combined organization following a potential transaction and retention arrangements for the Executives.
On June 30, 2022, the Executives and TD reached a preliminary agreement in principle on retention arrangements, the terms of which included, among others, (i) the grant of a retention award to each Executive, which the Company estimated to be equivalent to an aggregate amount, for all Executives, of approximately $129 million, with one-third of each such award payable in cash at the closing of the potential transaction and two-thirds of each such award to be granted in the form of deferred cash awards vesting in equal installments on each of the first three anniversaries of such closing, (ii) the grant of integration awards in the form of cash awards to certain Executives that cliff vest on the third anniversary of such closing in an aggregate amount for all such Executives of $18 million and (iii) flexibility under the interim operating covenants of the proposed merger agreement for the Company to determine and allocate employee bonuses (including for the Executives) for calendar year 2022 based on compensation principles that are consistent with the Company’s past practices. The Company estimated the foregoing awards and payments to be equivalent to an aggregate amount, for all Executives, of approximately $147 million exclusive of (i) any annual bonuses for calendar year 2022 that the Executives may be allocated by the Company and (ii) severance entitlements in an aggregate amount, for all Executives, of approximately $22 million payable only in the event of a qualifying termination by TD within the first half of the first fiscal year of such closing. The Executives and TD also agreed to the restructuring of certain unvested Company compensation awards to extend the existing vesting schedule of such awards so as to vest in equal installments on each of the first three anniversaries of such closing (to the extent such restructuring would be permitted pursuant to applicable tax laws) and to entitlements to severance benefits upon a qualifying termination pursuant to a formula to be set forth in the employment agreements between the Executives and TD based on the year of termination and under TD’s general severance policy applicable to similarly situated employees. No new employment agreements were contemplated for any other employees of the Company. For a detailed discussion of the material terms of the Executives’ employment arrangements, including severance and retention entitlements, see the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
Also on June 30, 2022, TD communicated to representatives of the Company that Simpson Thacher would be sending drafts of a merger agreement and employment agreements to Cravath, and members of management retained employment counsel to represent members of management in their individual capacities in the review and negotiation of such employment agreements.
On June 30, 2022, a representative of Company A’s financial advisor contacted a representative of Ardea and informed the representative of Ardea that Company A was continuing its analysis of a potential transaction and expected that it may submit a revised proposal by July 5, 2022, which may include a range in “the high $30s” per share of common stock. The representative of Ardea reiterated the Board’s request that any revised proposal include a price per share of common stock at or above $40.00. Later that day, a representative of Company A contacted a representative of Perkins Advisors to communicate the same message, and suggested that Company A was internally evaluating a proposal with a price per share of common stock at or above $40.00.
Also on June 30, 2022, a representative of a financial advisor (which we refer to as “Financial Advisor X”), contacted Mr. Solomon to indicate that Financial Advisor X was meeting with an undisclosed potential client that may be interested in a transaction with the Company. Mr. Solomon acknowledged but did not comment on the information provided by Financial Advisor X. Later on June 30, 2022, Mr. Solomon informed Mr. Barth of the inquiry from Financial Advisor X.
On July 1, 2022, after the close of trading, Bloomberg News reported a rumor that TD was exploring an acquisition of the Company, although no decision had been made.
Later on July 1, 2022, representatives of Simpson Thacher sent a draft merger agreement to representatives of Cravath. The draft included, among other things, a proposed termination fee, which would be payable by the Company upon the occurrence of certain events, including the Company’s termination of the merger agreement
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to accept a superior proposal (which we refer to as a “company termination fee”), of 4.0% of the equity value of the potential transaction. The draft also included an indication that TD would expect TD’s obligations to close the merger to be conditioned on the receipt of certain client consents (and “key person” provisions not being triggered) in connection with the Company’s investment management and advisory businesses, and limited TD’s obligations to take or agree to conditions or restrictions in connection with obtaining consents or approvals required in connection with the merger to those that, individually or in the aggregate, would not have or would not reasonably be expected to have a material and adverse effect on the Company and its subsidiaries, taken as a whole, or TD and its subsidiaries, taken as a whole (with TD deemed to be the same size as the Company and its subsidiaries, taken as a whole).
On July 2, 2022, members of the Company’s senior management met virtually with Mr. Ahmed and a senior Human Resources professional from TD to further discuss TD’s compensation programs as well as the Company’s compensation practices. The executives agreed that they would seek to structure compensation programs for non-executive employees to ensure the success of the combined business and retention of employees prior to closing the potential transaction. Later that day, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Mr. Solomon provided an update to the Board on discussions with TD, noting that while there had been some challenges with respect to discussions regarding compensation policies, talks had progressed and management was expecting to receive individual employment agreements from TD shortly, and that Simpson Thacher had provided an initial draft of the merger agreement to Cravath, which Cravath was reviewing. In light of the public reports regarding a potential transaction with TD the prior day, Mr. Solomon also provided the Board with an overview of the other inquiries that he or the Company’s advisors had received. Mr. Solomon noted that the Chief Executive Officer of Company B, an independent U.S. investment bank, had tried to contact and left a voicemail for Mr. Solomon on June 15, 2022 to informally inquire whether he and Mr. Solomon should have a routine dinner but that, to Mr. Solomon’s knowledge, such inquiry was not in relation to any particular strategic transaction. Company B had previously been discussed by the Board as a potentially interested counterparty. The Board then discussed the inbound call from Financial Advisor X on June 30, and Mr. Solomon noted that, as of the time of the Board meeting, Financial Advisor X had not yet identified its potential client. After discussion, the Board instructed Mr. Solomon to engage with Company B and any other potential counterparties that expressed interest, but that the Company should not confirm to any competitor of the Company that it was engaged in discussions regarding a potential acquisition unless such competitor has expressed a bona fide interest in making an acquisition proposal. Representatives of Ardea and Perkins Advisors then exited the meeting, and the Independent Directors continued the executive session, with representatives of Cravath and Morris Nichols participating. The Independent Directors discussed potential reactions to a proposal from Company A. The Independent Directors also discussed that, prior to the Bloomberg News report on July 1, 2022, the Company was expecting to receive preliminary indications of interest in the coming weeks in connection with the Company’s ongoing asset divestiture processes, but that the Board did not believe it was likely that the Company would receive an attractive proposal in the then-current macroeconomic environment, particularly in light of the uncertainty as to the Company’s future given market rumors.
On July 4, 2022, Company A sent a letter to Mr. Barth reflecting a non-binding proposal to acquire 100% of the Company’s common stock for $40.00 in cash (which we refer to as the “July 4 Company A Proposal”). The July 4 Company A Proposal was subject to due diligence, which the letter indicated Company A expected to complete within 60 days of the Company’s countersignature of the letter, and requested that the Company terminate negotiations with any other party regarding a potential transaction and negotiate exclusively with Company A for a period of 60 days. The July 4 Company A Proposal was also subject to various regulatory approvals, including anticipated approvals required from the Federal Reserve Board and international banking regulators. Additionally, the July 4 Company A Proposal noted that Company A expected to discuss with management retention payments and contractual payments in lieu of existing “change of control” severance entitlements, and proposed that Company A would spend the initial five business days following countersignature of the letter by the Company working with the Company’s management team to agree to an aggregate retention pool for existing non-executive employees as well as mutually agreed contractual arrangements with the seven members of the Company’s senior management team with existing “change of control” severance agreements.
On July 5, 2022, the Chief Executive Officer of the capital markets business of Company C, an international bank with a U.S. investment banking business, contacted Mr. Solomon, and indicated that while Company C had not been previously considering a transaction with the Company, Company C would consider evaluating a transaction with the Company if the Company were interested and inquired whether Company C should pursue
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that opportunity imminently. Mr. Solomon informed the Chief Executive Officer of Company C that, given the press reports, the Company was receiving interest and if Company C wanted to pursue a transaction time was of the essence, and that Company C could contact Ardea to discuss.
On July 5, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Representatives of Ardea and Cravath reviewed the terms of the July 4 Company A Proposal. The Board discussed the terms of the July 4 Company A Proposal, noting that the proposal offered a higher notional value per share of common stock than the $39.00 reflected in the June 15 Proposal, but that the July 4 Company A Proposal was subject to due diligence and contingent upon reaching an agreement with members of the Company’s management regarding retention arrangements and did not include any proposal for such retention arrangements. The Board also noted Company A had requested a substantially longer period than TD to complete its due diligence and that Company A’s proposal included additional regulatory conditions (including anticipated approvals required from the Federal Reserve Board and international banking regulators). After discussion, the Board determined that it was advisable for the Company to reject Company A’s request for exclusivity and to continue discussions and facilitating due diligence with each of TD and Company A, so that each party could complete its due diligence and satisfy any remaining conditions to its proposal as quickly as possible. The Independent Directors instructed the Company’s management and advisors to grant Company A access to the Company’s full data room and to share a draft merger agreement with Company A simultaneously with sharing a revised draft with TD. The Independent Directors also authorized management to begin discussions with Company A regarding post-closing compensation and retention arrangements, subject to guidelines to be prepared by Cravath and adopted by the Independent Directors consistent with the guidelines for negotiations with TD. Mr. Solomon then provided an update to the Board on the inquiry from Company C. The members of Company management and representatives of Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath and Morris Nichols participating. The Independent Directors noted that, because the proposals from each of TD and Company A were contingent upon reaching satisfactory retention arrangements with the Company’s management, and the Company’s management had not yet reached agreement on such arrangements with either party, it was advisable to continue discussions with both counterparties and to continue engaging with other potential counterparties that had expressed interest.
Later on July 5, 2022, following the Board meeting, acting on the July 2 instructions of the Board, Mr. Solomon attempted to contact the Chief Executive Officer of Company B to assess whether Company B would like to have a conversation with the Company, and left a voicemail for the Chief Executive Officer of Company B.
Also on July 5, 2022, a representative of Financial Advisor X contacted Mr. Solomon and informed Mr. Solomon that Financial Advisor X was representing Company D, a U.S. bank with a domestic investment banking business, and that Company D was interested in a potential acquisition of the Company and may be prepared to pay “a large premium”. Mr. Solomon requested that, if Company D were interested, Company D submit an indication with a range of potential values for the Board to consider. Mr. Solomon and the representative of Financial Advisor X then discussed arranging a meeting between Mr. Solomon and the Chief Executive Officer of Company D. Later that day, Mr. Solomon provided an update to the Independent Directors on the inquiry from Company D.
On July 6, 2022, the Chief Executive Officer of Company B tried to contact and left a voicemail for Mr. Solomon informing Mr. Solomon that he was returning Mr. Solomon’s phone call from July 5, 2022. Over the following days, Mr. Solomon and the Chief Executive Officer of Company B tried again to contact and left voicemails for one another. Mr. Solomon left a final voicemail for the Chief Executive Officer of Company B which was not returned, and there was no further contact from Company B.
Also on July 6, 2022, a representative of Company A sent Mr. Solomon a retention proposal for the Company’s senior management with “change of control” severance agreements, which consisted of guaranteed minimum compensation for such employees, retention payments to such employees based on the proceeds realized by Company A from sales of certain non-core assets of the Company during a three-year period after the closing of the proposed transaction (or, if sales of any of such assets were not executed, an agreed valuation of such remaining assets) and opportunities for additional incentive compensation based on the performance of the businesses formerly comprising the Company, with the sum of all such payments being capped at an amount equal to 70% of the value of each employee’s contractual “change of control” severance entitlements. Company A’s proposal did not include specific proposals regarding roles and responsibilities for individuals of
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the Company’s senior management team or any additional detail regarding compensation strategies to retain non-management employees. Mr. Solomon provided an update to the Independent Directors, noting that the compensation proposal from Company A was substantially less favorable than the retention package that had been agreed in principle between the Executives and TD on June 30, 2022, partly because the incentive compensation opportunities of such package were based on highly contingent factors that would be outside of the control of the Company’s management team, but that there also remained open concerns with TD’s retention proposals, including whether annual compensation opportunities for the Executives would be guaranteed.
On July 7, 2022, Mr. Solomon had a call with a representative of Company A to discuss Company A’s July 6 retention proposal. A representative of Perkins Advisors participated at Mr. Solomon’s request. During this call, Mr. Solomon proposed to Company A a retention package for the Executives that was comparable to the retention package that had been agreed in principle between the Executives and TD on June 30, 2022 (which proposal represented aggregate payments to the Executives substantially below the value of such Executives’ existing “change of control” severance entitlements) and discussed structural issues relating to roles in the combined organization, including the impact of integrating the Company’s businesses with Company A’s existing investment banking business on reporting lines and on retention of key talent between signing and closing a potential transaction. Company A acknowledged Mr. Solomon’s proposal and that it would respond following internal discussion thereof.
Also on July 7, 2022, the Company shared a draft mutual confidentiality agreement with Company D, and a representative of Financial Advisor X contacted a representative of Ardea to communicate that Company D expected to submit an indication of interest in writing on July 8, 2022.
Later on July 7, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Representatives of Ardea informed the Board that Company D was expected to submit an indication of interest in writing on July 8, 2022, but had not yet indicated a range of potential values. Mr. Solomon provided the Board with an update on retention discussions between the Company’s management and each of Company A and TD, noting that open issues remained with both parties. Mr. Solomon noted that TD had conducted substantial confirmatory due diligence and had indicated a potential ability to sign and announce a transaction as early as July 18, 2022. Mr. Solomon also provided an update on discussions with Company B and Company C, noting that neither party had followed up to express further interest in a transaction involving the Company as of that date. The members of Company management and representatives of Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath and Morris Nichols participating. The Independent Directors noted that Mr. Solomon and other members of the Company’s senior management had substantial concerns with the retention packages and compensation structures for non-management employees proposed by each of TD and Company A, but that both potential transactions were still viable. After discussion, the Independent Directors resolved to instruct Mr. Solomon to continue negotiations with each of TD and Company A and to keep the Independent Directors informed of any developments, and Mr. Barth communicated that instruction to Mr. Solomon.
On July 8, 2022, a representative of Company A contacted Mr. Solomon and informed Mr. Solomon that Company A would not be able to reach mutual agreement with management on its proposed retention package for the Executives or on the proposed organizational, compensation and retention structure for the Company’s employees as a part of Company A following the proposed transaction, as such retention and organizational structures would be too disruptive to Company A’s existing business. Mr. Solomon asked whether Company A had any counter-proposals regarding retention and organizational structures to discuss further, and the representative of Company A confirmed that Company A did not have a counter-proposal. Mr. Solomon thanked the representative of Company A for the time and effort that he and his team had made, but did not engage in any further negotiations and promptly informed the Independent Directors.
Later on July 8, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Mr. Solomon provided an update to the Board on his discussions with Company A regarding retention and compensation matters, noting that Company A had expressed that it would not be able to reach mutual agreement with management on its proposed retention package for the Executives or on the proposed organizational, compensation and retention structure for the Company’s employees as a part of Company A following the proposed transaction, as such retention and organizational structures would be too disruptive to Company A’s
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existing business, that Company A did not present a counter-proposal, and that the condition to the July 4 Company A Proposal therefore would not be satisfied. The Board instructed Ardea and Perkins Advisors to contact Company A’s financial advisor the following week if Company A had not reengaged to confirm whether there was a potential path to a transaction on the terms of the July 4 Company A Proposal. Representatives of Cravath then reviewed the terms of the draft merger agreement received from TD with the Board.
During that Board meeting, Company D sent a letter to Mr. Solomon reflecting a non-binding proposal to acquire 100% of the Company’s common stock for consideration in the range of $1.539 billion to $1.847 billion, which Company D calculated as equivalent to $40.00 to $48.00 per share of common stock based on an estimated 38.5 million shares of common stock outstanding on a fully diluted basis (which we refer to as the “July 8 Company D Proposal”). The July 8 Company D Proposal was subject to due diligence, and requested that the Company terminate negotiations with any other party regarding a potential transaction and negotiate exclusively with Company D for a period of 60 days from the date of the Company’s acceptance of the proposal. The July 8 Company D Proposal was also subject to various regulatory approvals, including approvals that would likely be required from the Federal Reserve Board and international banking regulators. The July 8 Company D Proposal noted that Company D welcomed the opportunity to discuss customary terms of retention of Company personnel at the appropriate time during the process but did not include any proposals for management retention or specify any individuals that would be expected to agree to retention terms.
After review and discussion, the Board noted that the July 8 Company D Proposal would be equivalent to $39.36 to $47.24 per share of common stock utilizing the Company’s then-current share count of approximately 39.1 million shares of common stock outstanding on a fully diluted basis, and the range of valuations reflected in the July 8 Company D Proposal was higher than the $39.00 per share of common stock proposed by TD in the June 15 Proposal. However, the Board noted that the July 8 Company D Proposal was preliminary, reflected a wide range of potential valuations, was subject to substantial due diligence, and was silent as to certain structural elements (including whether the consideration would be in the form of cash or stock consideration and whether the proposal was contingent on retention of Company personnel). After discussion, the Board noted that, if actionable, the July 8 Company D Proposal may provide greater value to the holders of common stock than the value proposed by either TD or Company A, and the Board instructed the Company’s management and advisors to enter into a confidentiality agreement with Company D and to facilitate Company D’s due diligence as quickly as possible. In addition, the Board instructed Ardea to request that Company D provide an updated proposal by July 14, 2022, reflecting a narrower price range based on Company D’s initial due diligence and reflecting Company D’s assumptions regarding retention of management and any required retention arrangements. The members of Company management then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. After further discussion regarding the response and messaging to Company D, the representatives of Ardea and Perkins Advisors exited the meeting. Representatives of Cravath then discussed with the Independent Directors certain proposed revisions to the merger agreement with TD. After discussion, the Independent Directors authorized Cravath to send a revised draft merger agreement to TD reflecting, among other things, a proposed company termination fee of $30.0 million, or approximately 2.0% of transaction equity value, the removal of any closing conditions based on client consents and any key person conditions, if applicable, with respect to the Company’s investment management and advisory businesses, and a “hell or high water” regulatory standard requiring TD to take or agree to all actions or restrictions necessary in order to obtain any regulatory approvals required to consummate the merger.
On July 9, 2022, Mr. Solomon had a call with the Chief Executive Officer of Company D’s investment banking division, during which Company D expressed that Company D was interested in the Company’s research, investment banking and equity capital markets and equities trading businesses. Company D also indicated that they viewed the proposed transaction as a “merger of equals” for the companies’ respective investment banking businesses.
On July 10, 2022, the Company and Company D entered into a mutual confidentiality agreement, which contained a standstill provision that would automatically terminate upon the entry by the Company into a definitive acquisition agreement with a third party.
On July 11, 2022, representatives of Cravath shared a revised draft merger agreement with representatives of Simpson Thacher reflecting the positions authorized by the Independent Directors on July 8.
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On July 12, 2022, Company A sent a letter to Mr. Barth formally withdrawing the July 4 Company A Proposal, noting that Company A had been unable to find a mutual agreement with the Company’s management regarding “change of control” severance, management and employee retention and organizational structure, which agreement was a condition to the July 4 Company A Proposal.
Also on July 12, 2022, representatives of the Company’s management and senior members of Company D’s management team held an in-person meeting to review a management presentation on the Company’s business, which included the “Base Case” and “High Case” Financial Forecasts that had previously been shared with TD and Company A. During this meeting, the representatives of Company D expressed interest in the strategic rationale for an acquisition of the Company, which Company management and Company D’s management discussed further over dinner.
On July 13, 2022, Mr. Barth contacted a representative of Company A to discuss Company A’s withdrawal letter on behalf of the Independent Directors, and to explore if there was any path forward given the issues related to organizational structure and management retention. The representative of Company A informed Mr. Barth that there were a number of issues that would make an acquisition of the Company impracticable for Company A. The representative of Company A noted that Company A had concerns with the cultural fit of the two organizations, including substantial differences in the compensation structures for non-management employees (and difficulty in integrating the Company’s compensation practices based on an aggregate compensation-to-revenue target into Company A’s larger organization) and overlapping businesses and management roles, which, in Company A’s view, created difficulties in creating a viable leadership structure and reporting lines for the combined organization. The representative of Company A also noted that Company A was not willing to pay the Company’s management the existing “change of control” severance entitlements and was not willing, in lieu of such severance entitlements, to pay retention compensation inconsistent with the compensation rates used in Company A’s business.
On July 13, 2022 and July 14, 2022, representatives of the Company’s management and Company D held numerous due diligence calls.
On July 13, 2022, the Chief Executive Officer of Company C contacted Mr. Solomon and informed Mr. Solomon that, given Company C’s focus on other strategic priorities, Company C would not be pursuing a transaction with the Company at that time.
Also on July 13, 2022, representatives of Simpson Thacher shared a revised draft merger agreement with representatives of Cravath, which included, among other things, a proposed company termination fee of 3.5% of transaction equity value, an indication that a potential condition to TD’s obligations to close the merger related to fund consents remained subject to due diligence, and a reinsertion of the previous limitation on TD’s obligations to take or agree to conditions or restrictions in connection with obtaining consents or approvals required in connection with the merger to those that, individually or in the aggregate, would not have or would not reasonably be expected to have a material and adverse effect on the Company and its subsidiaries, taken as a whole, or TD and its subsidiaries, taken as a whole (with TD deemed to be the same size as the Company and its subsidiaries, taken as a whole).
On July 14, 2022, a representative of Company D contacted a representative of Ardea, and informed Ardea that Company D would need additional time to conduct due diligence and evaluate the cultural fit of the two businesses, and therefore would not be engaging further on a potential acquisition of the Company at such time. The representative of Company D indicated that Company D would consider reengaging in discussions in August if the Company were still available, but would need 30 to 45 days from that point to finalize diligence for a potential transaction. A representative of Company D subsequently contacted a representative of Perkins Advisors on July 15, 2022, and stated that Company D was concerned with potential leaks regarding a transaction involving the Company and therefore did not want to reengage until after both Company D and the Company had announced second quarter earnings.
On July 18, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Mr. Barth provided a summary to the Board of his discussion with Company A on July 13, including his impression that it was clear, based on that conversation, that Company A was not seriously interested in continuing to pursue a transaction with the Company. Representatives of Ardea and Perkins Advisors then provided a summary of their respective discussions with representatives of Company D, noting Company D’s position that it would not reengage until August. The Board discussed that waiting to reengage with Company D and for Company D to begin due diligence in August
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would create risks related to TD’s bid, as TD had signaled a willingness to sign a transaction during July, and that, if Company D were willing to pursue a transaction in the valuation range reflected in the July 8 Company D Proposal, Company D would not be precluded under the merger agreement with TD from submitting a competing acquisition proposal prior to receipt of the stockholder approval of any transaction with TD. Mr. Solomon then provided an update on discussions with TD, noting that negotiations related to the merger agreement and individual employment agreements for the Executives were still ongoing. Mr. Solomon provided an overview of open issues in the individual employment agreements for the Executives, including TD’s proposal that the Executives’ annual compensation would not be subject to annual minimum guarantees. Representatives of Cravath then provided an overview of the revised draft merger agreement that had been received from Simpson Thacher on July 18, 2022. After discussion, the Independent Directors authorized Cravath to send a revised draft merger agreement to TD reflecting, among other things, a proposed company termination fee of $35.0 million, the removal of any closing conditions based on fund consents, and a “reverse termination fee” of $100.0 million payable by TD to the Company upon the occurrence of certain events, including the failure to close the transaction due to a denial of a required regulatory approval. The members of Company management then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. During the executive session, the Independent Directors and advisors discussed the alternatives available to the Company. The Independent Directors noted their understanding that neither Company A nor Company D was seriously interested in pursuing a transaction with the Company at that time, and that TD’s proposal was therefore the sole actionable acquisition proposal that the Board had received. The Independent Directors also noted that TD had already invested substantial resources in due diligence, negotiations and legal expenses, and that TD’s willingness to execute a transaction quickly and on terms that offered substantial closing certainty were key features of TD’s proposal. After discussion, the Independent Directors instructed the Company’s advisors present to continue negotiations with TD to attempt to finalize the terms of the proposed transaction as quickly as practicable, while seeking terms that would maximize closing certainty, not unreasonably foreclose competing acquisition proposals from being made by third parties and provide the Company with flexibility to retain employees between signing and closing in order to minimize the harm to the Company’s business if, contrary to the parties’ then-current expectations, the proposed transaction did not close. The Independent Directors also authorized the Company’s management and Ardea to share the full Financial Forecasts with TD, given that Perella Weinberg, as TD’s financial advisor, had requested confirmation as to whether any other projections prepared by the Company’s management existed, beyond the Base Case and High Case projections for fiscal years 2022 and 2023 which had been previously shared.
On July 20, 2022, representatives of Cravath shared a revised draft merger agreement with representatives of Simpson Thacher reflecting the positions authorized by the Independent Directors on July 18.
Also on July 20, 2022, the Board held a regular quarterly meeting in person, with members of the Company’s management participating. During such meeting, the Board requested that representatives of Cravath, Ardea and Perkins Advisors join to discuss the status of the potential transaction with TD and other proposals. The Board discussed the fact that, while two other proposals had been submitted with a nominal value in excess of $39.00 per share of common stock, both of those proposals had been subject to contingencies that had not been satisfied and were not actionable (and, in the case of the Company A proposal, had been definitively withdrawn), and the TD proposal was the only remaining actionable proposal and offered the greatest combination of value and certainty. The Board also discussed whether, based on the receipt of other competing proposals, the Company should request improvements to the proposed transaction with TD. The members of Company management and the representatives of Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath and Morris Nichols participating. During the executive session, the Independent Directors determined that, the TD proposal was the best option reasonably available under the circumstances at that time (and was advisable to the Company and its stockholders) and that, while TD had rejected requests for an increase in the merger consideration above $39.00 per share of common stock on three prior occasions, TD likely had capacity to improve the terms of its proposal and instructed the Company’s advisors to seek improvements to the terms of TD’s proposal.
On July 22, 2022, representatives of Cravath and Simpson Thacher had a call to discuss the draft merger agreement. During the call, the representatives of Simpson Thacher highlighted areas of concern for TD in the revised draft sent on July 20, including that (i) TD was not willing to agree to a “hell or high water” standard for TD’s obligations to seek all required regulatory approvals or a reverse termination fee in the event that any required regulatory approvals cannot be obtained, (ii) TD was not willing to agree to any restrictions on TD’s ability to close TD’s pending acquisition of First Horizon Corporation, (iii) TD wanted the Company to pursue a
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restructuring to obviate the need for any NRC Approval or DFS Approval (each as defined in the section entitled “The Merger—Regulatory Approvals in Connection with the Merger” beginning on page 80 of this proxy statement) and (iv) TD would require a closing condition based on receipt of any required material fund consents.
Later on July 22, 2022, representatives of Simpson Thacher sent a revised draft merger agreement to representatives of Cravath reflecting the positions previously communicated, as well as a proposed company termination fee of $42.25 million.
Also on July 22, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Mr. Solomon provided an update on discussions with TD, noting that progress had been made on the individual employment agreements and broader employee retention issues in the draft merger agreement, as well as post-closing compensation structures for the remaining employees to ensure the success of the combined business and retention of employees prior to closing the potential transaction. Representatives of Cravath then reviewed with the Board the open issues in the merger agreement, including the issues that Simpson Thacher had raised on the call with Cravath earlier in the day. After discussion, the Independent Directors authorized Cravath to respond to Simpson Thacher that, in order for TD’s proposal to continue to be the most favorable option reasonably available to the Company’s stockholders under the circumstances, TD would need to improve deal certainty, including that (i) there would be either a “hell or high water” standard for TD’s obligations to seek all required regulatory approvals or a reverse termination fee of $100.0 million payable by TD in the event that any required regulatory approvals cannot be obtained, (ii) TD would be required to seek the NRC Approval or DFS Approval, as applicable, if a restructuring or disposition of the relevant assets could not be timely implemented and (iii) the transaction would not be conditioned upon receipt of any non-governmental third-party consents, including fund consents. The members of Company management and the representatives of Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath participating. After discussion, the Independent Directors determined that, given the open issues in the merger agreement and TD’s prior rejection of any price improvements above $39.00 per share of common stock, the best way to improve the terms of TD’s current proposal was to maximize deal certainty in the merger agreement, particularly given the potential harm to the Company’s business and employee retention in the event that a definitive agreement was signed and announced but the proposed transaction failed to close.
Over the next several days, the Company and TD exchanged multiple drafts of the merger agreement and issues lists, and representatives of Cravath and Simpson Thacher had numerous discussions to resolve the open issues in the merger agreement. During these discussions, TD proposed that, in lieu of a “hell or high water’ standard for TD’s obligations to seek all required regulatory approvals or a reverse termination fee of $100.0 million payable by TD in the event that any required regulatory approvals cannot be obtained, the Company would be entitled to expense reimbursement from TD (which we refer to as the “expense reimbursement”) in the event that any required regulatory approvals cannot be obtained, including (i) $10.0 million for fees and expenses, (ii) the aggregate face amount of employee retention awards which have been allocated and communicated to employees (subject to certain limitations and requirements) and (iii) the designated capped amount for the premium of an insurance policy that may, at the request of TD, be bound by the Company pursuant to the merger agreement.
On July 27, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating. Representatives of Cravath reviewed with the Board the updated terms of the draft merger agreement, including the proposed expense reimbursement. The representatives of Cravath noted that, if the parties agreed on mutually satisfactory language and triggers for the expense reimbursement, the provision would provide for an expense reimbursement payment of $100.0 million and would therefore be substantively similar to the $100.0 million reverse termination fee previously proposed by the Independent Directors. After discussion, the Independent Directors authorized representatives of Cravath to finalize a draft of the merger agreement reflecting the proposed expense reimbursement, pending final Board approval at a subsequent meeting. The members of Company management and representatives of Ardea and Perkins Advisors then exited the meeting and the Independent Directors commenced an executive session, with representatives of Cravath and Morris Nichols participating. Mr. Barth informed the Independent Directors that Ardea had requested that the Independent Directors reaffirm or update the Weightings prior to Ardea delivering a fairness opinion to the Board in connection with the proposed transaction. At the request of the Independent Directors,
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Mr. Solomon then rejoined the meeting to provide the Independent Directors with an update on the Company’s results to date and progress compared to the Financial Forecasts. Mr. Solomon noted that, while conditions in the financial markets had improved and the Company’s performance had been improving in recent weeks, based on the Company’s then-current revenue run-rate, management expected revenue for the full year in 2022 to fall below the Base Case, and that, while the Base Case may be attainable in future periods, the Company was facing continued headwinds in the industries in which it operates, and therefore management’s estimates of the Company’s future financial performance had not changed. Mr. Solomon then exited the meeting. After discussion, the Independent Directors reaffirmed the Weightings, and authorized Mr. Barth to instruct Ardea to utilize the Weightings for purposes of any fairness opinion.
After the Board meeting on July 27, 2022, representatives of the Company, TD, Cravath and Simpson Thacher discussed and exchanged comments to the draft merger agreement, and the Executives and representatives of TD and Simpson Thacher discussed and exchanged comments to the draft employment agreements between the Executives and TD. At the conclusion of these discussions, the parties had agreed on the material terms of the merger agreement. The Executives and TD had also agreed on the material terms of the Executives’ employment agreements, which terms were consistent with the terms of the agreement in principle reached on June 30, 2022, including waiving their rights under their existing “change of control” severance agreements. For a detailed discussion of the material terms of the Executives’ employment arrangements, including severance and retention entitlements, see the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
On July 28, 2022, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating for the purpose of reviewing the proposed transaction with TD. Representatives of Cravath reviewed the Board’s fiduciary duties in connection with its consideration of the proposed transaction. Representatives of Ardea began to review its financial analysis of the merger consideration of $39.00 per share of common stock. During such review, Mr. Ahmed contacted Mr. Solomon and informed Mr. Solomon that, due to a few remaining outstanding due diligence items, TD would need until the beginning of the next week in order to finalize its due diligence and sign the definitive merger agreement. After discussion, the Board instructed management to facilitate TD’s remaining due diligence and to finalize the terms of the merger agreement and the Executives’ employment agreements, and determined to reconvene a Board meeting once such due diligence was completed.
Between July 28, 2022 and August 1, 2022, the parties held numerous discussions regarding due diligence and the merger agreement. On August 1, following completion of such due diligence, the Board held a meeting by videoconference, with representatives of the Company’s management and representatives of Cravath, Morris Nichols, Ardea and Perkins Advisors participating for the purpose of reviewing the proposed transaction with TD. Representatives of Cravath reviewed the Board’s fiduciary duties in connection with its consideration of the proposed transaction. Representatives of Ardea reviewed its financial analysis of the merger consideration of $39.00 per share of common stock. Ardea then rendered to the Board an oral opinion, which was subsequently confirmed by delivery of a written opinion dated August 1, 2022, that, as of the date of such written opinion and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken by Ardea in preparing its opinion, the merger consideration of $39.00 per share of class A common stock to be paid to the holders of class A common stock (other than as specified in such opinion) pursuant to the merger agreement was fair, from a financial point of view, to such holders. For a detailed discussion of Ardea’s opinion, see the section entitled “The Merger—Opinion of Ardea Partners LP” beginning on page 64 of this proxy statement. The written opinion delivered by Ardea is attached to this Proxy Statement as Annex B. Representatives of Cravath then reviewed with the Board the terms of the proposed merger agreement, including the terms of the “no shop” provisions and the expense reimbursement provisions. Following additional discussion and consideration of the proposed merger agreement and the merger and the other transactions contemplated by the proposed merger agreement, the Board recessed and the Compensation Committee of the Board convened and unanimously approved certain employment compensation and other employee benefit arrangements with respect to the employees of the Company in connection with the proposed merger agreement, including the treatment of Company equity awards. For a detailed discussion of the material terms of the Executives’ employment arrangements, including severance and retention entitlements, see the section entitled “—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement. Following such approval by the Compensation Committee of the Board, the Board reconvened and unanimously (i) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement; (ii) determined that it is fair and advisable to, and
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in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) directed that the merger agreement be submitted to the stockholders of the Company for adoption; (iv) recommended that such stockholders vote their shares of common stock in favor of adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement.
Following the conclusion of the Board meeting, the parties executed and delivered the merger agreement on August 1, 2022.
On August 2, 2022, prior to the opening of trading on the Nasdaq, the parties issued a joint press release announcing the merger.
Recommendation of the Board
At the special meeting of the Board on August 1, 2022, after consideration, including the material factors described in the section entitled “—Reasons for the Merger” beginning on page 53 of this proxy statement, and detailed discussions with the Company’s management and its legal and financial advisors, at such meeting and prior meetings of the Board, the Board unanimously:
approved and declared advisable the merger agreement, the merger and the other transactions contemplated by merger agreement;
determined that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement;
directed that the merger agreement be submitted to the stockholders of the company for adoption;
recommended that such stockholders vote their shares of common stock in favor of the adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and
authorized the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement.
Reasons for the Merger
As described in the section above entitled “—Background of the Merger” beginning on page 31 of this proxy statement, prior to and in reaching its unanimous determination to (i) approve and declare advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement; (ii) determine that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) direct that the merger agreement be submitted to the stockholders of the Company for adoption; (iv) recommend that such stockholders vote their shares of common stock in favor of adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorize the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement, the Board consulted with and received the advice of its financial advisors and outside counsel, discussed certain issues with the Company’s management and considered a variety of factors weighing positively in favor of the merger, the merger agreement and the transactions contemplated thereby, including, among other things, the following non-exhaustive list of material factors (not necessarily in order of relative importance):
Merger Consideration; Premium to the Trading Price of the Class A Common Stock. The Board considered the current and historical market prices of the class A common stock, including the market performance of the class A common stock relative to those of other participants in the Company’s industry and general market indices, and the fact that the $39.00 in cash per share of common stock to be paid to the holders of shares of common stock pursuant to the terms of the merger agreement represented:
a premium of 49.0% to $26.18, the closing price on June 3, 2022, the last trading day prior to TD’s initial verbal offer of $39.00 per share in cash;
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a premium of 62.2% to $24.04, the closing price on July 1, 2022, the last trading day prior to public speculation of a potential transaction between the Company and TD; and
a discount of 7.1% to $41.97, the highest closing price during the 52-week period ending July 1, 2022, the last trading day prior to public speculation of a potential transaction between the Company and TD.
Cash Consideration; Certainty of Value and Liquidity. The Board considered the fact that the merger consideration is all cash, which will provide the Company stockholders immediate certainty of value and liquidity for their shares of common stock, enables the Company stockholders to realize value that has been created by the Company and does not expose them to any future risks related to the business or macroeconomic conditions, as compared to the Company remaining independent (especially when viewed against the potential risks and uncertainties inherent in the Company’s businesses, including risks related to an adverse macroeconomic environment and a prolonged market downturn). The Board also considered that, given the impact of macroeconomic conditions and conditions in the broader financial markets on the Company’s business and financial prospects, the Board believed that, on an unaffected basis independent of the announcement of a strategic transaction, the share price of the class A common stock was not likely to trade at or above the merger consideration in the foreseeable future.
No Financing Condition. The Board considered the fact that TD and Merger Sub would have sufficient cash resources to pay the amounts required to be paid under the merger agreement without obtaining third-party financing and that the merger is not subject to a financing condition.
Sale Process. The Board considered the fact that it regularly reviewed the Company’s performance and prospects in light of its business and developments in the financial services industry and the macroeconomic environment, including reviews of potential acquisitions, dispositions and other strategic transactions to enhance stockholder value, and that the Board, the Company’s management and representatives of the Company’s financial advisors and outside counsel had engaged in extensive discussions regarding potential strategic partnerships with other companies in the financial services industry and their financial advisors and outside counsel over an extended period of time. In particular, the process conducted by the Board, with the assistance of the Company’s financial advisors and outside counsel, involved contacting, or responding to, five potential acquirors (including TD) and their respective financial advisors, entering into mutual confidentiality agreements with, providing management presentations to, attending numerous calls and meetings with representatives of, and granting due diligence access to, three potential acquirors (including TD), receiving non-binding offers (and negotiating towards receiving binding offers) from three potential acquirors (including TD), and receiving one final binding offer from TD. The Board also considered the fact that, while the media coverage regarding the rumor that TD was exploring an acquisition of the Company resulted in the initial outreach by two of the five potential acquirors (Company B and Company C), neither of the two potential acquirors seriously pursued the opportunity to explore a potential acquisition of or other strategic partnership with the Company. The Board also considered that, while Company A and Company D had submitted non-binding indications of interest with potential consideration per share in excess of $39.00 per share of common stock, such indications of interest were preliminary, were subject to contingencies that had not been satisfied and had subsequently been withdrawn, and neither Company A nor Company D had expressed further interest in a transaction involving the Company after such withdrawals (and that Company D had not subsequently attempted to re-engage with the Company after the announcement of Company D’s quarterly earnings). For a detailed discussion of the sale process, see the section entitled “—Background of the Merger” beginning on page 31 of this proxy statement.
The Company’s Operating and Financial Condition and Outlook. The Board considered the Company’s operating and financial performance and outlook, including a “Low Case”, “Base Case” and “High Case” for fiscal years 2022 through 2026 prepared by management, which forecasts are described in more detail in the section entitled “—Financial Forecasts” beginning on page 61 of this proxy statement, including key assumptions underlying each scenario and, on several occasions in the weeks and months leading up to the execution of the merger agreement, the Company’s then-current results to date during the second quarter of 2022 and the near-term and long-term outlook for the Company’s businesses. The Board considered the inherent uncertainty of achieving senior management’s Financial
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Forecasts, and that, as a result, the Company’s actual results in future periods will differ, and may differ materially, from those reflected in the Financial Forecasts. The Board also considered, based on then-current trends, that the “Low Case” was the most likely of the scenarios reflected in the Financial Forecasts to occur and the Independent Directors assigned probability weightings to each of the “Low Case”, “Base Case” and “High Case” as described in more detail in the section entitled “—Background of the Merger” beginning on page 31 of this proxy statement.
Best Strategic Alternative for Maximizing Stockholder Value. After a thorough review of strategic alternatives and discussions with management and the Company’s financial advisors and outside counsel, the Board determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement were advisable and fair to, and in the best interests of, the Company and its stockholders. The Board also carefully evaluated, with the assistance of financial advisors, outside counsel and members of management, the risks and potential benefits associated with other strategic alternatives, including the possibility of the Company remaining an independent public company, and the potential for shareholder value creation associated with those alternatives and concluded that such alternatives were less favorable to the Company stockholders than the merger. As part of these evaluations, the Board considered, among other factors, that:
during the Board’s and the Company’s discussions with potential acquirers regarding an acquisition of all of the Company’s outstanding class A common stock, the Company also explored potential divestitures of certain of the Company’s assets; however, despite several parties expressing an interest in exploring potential transactions involving some or all of such assets, following the Bloomberg News report of a rumor that TD was exploring an acquisition of the Company, the Company was unable, as of the date of the merger agreement, to obtain binding proposals for such divestitures that were satisfactory to the Board or would be more favorable, from a financial point of view, to the Company and its stockholders than the terms of the merger agreement (and, as of the date of this proxy statement, no binding proposals have been received);
by early May, management noted that, given the adverse macroeconomic environment, including a broader decline in equity markets and deal-making activity and rising interest rates during the quarter, actual revenue for the fiscal year 2022 across all core businesses was expected to be lower than the “Base Case” Financial Forecasts for fiscal year 2022;
by mid-May, it had become apparent that the impact of macroeconomic conditions and conditions in the broader financial markets on the Company’s business and financial prospects and the trading price of the class A common stock, and the risks associated with remaining a standalone public company in such an environment, including the potential impact of a downturn on the Company’s revenue and profitability, could reach a level that may compromise the Company’s ability to compensate and retain employees;
by early June, management was evaluating the implementation of potential cost cutting measures in light of the then-current economic environment and its impact on the Company’s performance, and management noted that, while the macroeconomic outlook was difficult to predict, if the then-current business trends continued through the remainder of 2022, the Company’s performance would likely be below the Low Case Financial Forecasts and, absent a partnership or other strategic transaction involving the Company, that management would look to prepare implementation of cost cutting measures to counteract the impact of such trends on the Company’s performance; and
following extensive discussions regarding potential strategic partnerships with other companies in the financial services industry and their financial advisors and outside counsel over an extended period of time, of the five potential acquirors engaged in such discussions, only three submitted non-binding offers, only one submitted a final binding offer to acquire the Company and, ultimately, TD’s proposal was therefore the sole actionable acquisition proposal that the Board received.
For a detailed discussion of the Board’s considerations, see the section entitled “—Background of the Merger” beginning on page 31 of this proxy statement.
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Opinion of Ardea and Related Financial Analyses. The Board considered the oral opinion of Ardea rendered to the Board on August 1, 2022, subsequently confirmed in a written opinion dated August 1, 2022 and delivered to the Board, to the effect that, as of the date of Ardea’s written opinion, and based upon, and subject to, the factors and assumptions set forth therein, the $39.00 in cash per share of class A common stock, without interest, to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement was fair, from a financial point of view, to such holders. For a detailed discussion of Ardea’s opinion and related financial analyses, see the section entitled “—Opinion of Ardea Partners LP” beginning on page 64 of this proxy statement.
Negotiation Process. The Board considered its belief that, following extensive negotiations, the Company obtained the highest price that TD is willing to pay for the Company, as evidenced by the Company’s ability to cause TD to materially increase its initial offer of $32.00 per share of common stock by over 20% between May 26, 2022 and June 5, 2022 despite a continuing decline in broader financial markets, and by attempting to cause TD to further increase its final offer of $39.00 per share of common stock by adopting a tactical negotiation posture in the final weeks of its negotiations with TD that was designed to lead TD to believe that the Board expected a valuation of at least $42.00 per share of common stock in order for the Board to be willing to approve a transaction. The Board also considered the fact that the terms of the merger were the result of robust arm’s-length negotiations conducted by the Company, with the knowledge of and at the direction of the Board, with the assistance of experienced financial advisors and outside counsel and in the context of a competitive process, and that the Board did not authorize management to negotiate compensation arrangements until after the Board and a potential acquiror had reached an agreement on the price per share of common stock. The Board also considered that, after the Board authorized management to negotiate compensation arrangements with TD and with Company A, such negotiations were conducted in accordance with guidelines approved by the Independent Directors, the Independent Directors were regularly kept apprised of the status and substance of such negotiations and while, as a result of such negotiations, the estimated value of the compensation and retention package agreed between TD and the Executives equivalent to approximately $223 million (including approximately $129 million in retention awards, approximately $77 million in respect of Company RSUs, Company PSUs and deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation and approximately $18 million in integration awards, and excluding annual bonuses for calendar year 2022 and approximately $22 million in severance entitlements) was higher than the estimated value of $220 million (including approximately $120 million in retention awards, and approximately $77 million in respect of Company RSUs, Company PSUs and deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation and approximately $23 million in pro rata bonuses for calendar year 2022) implied by TD’s June 15 Proposal, such agreement represented a substantial reduction compared to the estimated value of the Executives’ existing arrangements with the Company of approximately $371 million (including approximately $229 million in severance entitlements, approximately $77 million in respect of Company RSUs, Company PSUs and deferred cash underlying deferred compensation awards previously granted in respect of prior years’ compensation and approximately $65 million in pro rata bonuses for calendar year 2022) (in each case, assuming accelerated vesting of then-outstanding Company compensation awards at a price per share of class A common stock of $39.00). For a detailed discussion of the negotiation process, see the section entitled “—Background of the Merger” beginning on page 31 of this proxy statement.
Timing and Regulatory Risks. The Board considered the anticipated timing of the Company’s entry into a definitive agreement and the risk that certain counterparties may attempt to recruit the Company’s key employees, particularly during the weeks after Bloomberg News reported a rumor that TD was exploring an acquisition of the Company and before the Company had entered into a definitive agreement in respect of a strategic transaction that could be disclosed to the Company’s employees. The Board also considered the anticipated timing of the consummation of the merger and concluded that, despite the number of regulatory approvals required to be obtained in connection with the merger, the merger could be completed in a reasonable timeframe. For a detailed discussion of the terms and conditions related to regulatory matters, see
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the section entitled “The Merger Agreement—Covenants and Agreements—Reasonable Efforts; Regulatory Matters” beginning on page 96 of this proxy statement. The Board further considered that these timing implications could reduce the period during which the Company’s business would be subject to the potential uncertainty of closing and related disruption.
Reputation and Expertise of TD. The Board considered the reputation and expertise of TD and its management and the substantial financial resources of TD with its AA- rating and a $1.7 trillion balance sheet, which the Board believed supported the conclusion that a transaction with TD could be completed relatively quickly and without financing risk.
Existing Resources. The Board also considered that, absent a partnership or other strategic transaction involving the Company, management would look to implement cost cutting measures to counteract the impact of the then-prevailing business trends on the Company’s performance and the share price of the class A common stock. The Board also took into consideration that a prolonged market downturn could require the Company to obtain additional debt and equity financing or to enter into collaborations or other strategic partnerships in the future, and that any such financing, collaboration or partnership could be dilutive to the Company’s existing stockholders, might be available only on unfavorable terms or might not be available at all.
Dividends. The Board also considered the fact, that during the pendency of the merger, the Company is permitted to pay regular quarterly cash dividends at a rate not in excess of $0.12 per share of common stock, to the Company stockholders.
No Vote of TD Shareholders. The Board considered the fact that the merger is not subject to the conditionality and execution risk of any required approval by TD’s shareholders.
Terms of the Merger Agreement. The Board considered the terms and conditions of the merger agreement, including:
that, prior to receipt of the Cowen stockholder approval, the Company may, subject to certain conditions and limitations, including the entry into a confidentiality agreement, furnish confidential or nonpublic information or data to and engage or participate in negotiations or discussions with third parties from which the Company has received a bona fide written acquisition proposal;
that, prior to receipt of the Cowen stockholder approval, the Board may, subject to certain conditions and limitations, including certain information and negotiation rights in favor of TD, change its recommendation that holders of the class A common stock adopt the merger agreement and approve the transactions contemplated by the merger agreement in specified circumstances (including relating to a superior proposal from a third party), subject to TD’s right to terminate the merger agreement and receive payment of the Cowen termination fee of $42,250,000 in cash;
that, prior to receipt of the Cowen stockholder approval, subject to certain conditions and limitations, including payment by the Company of the Cowen termination fee of $42,250,000 in cash to TD, the Company may terminate the merger agreement to enter into an alternative acquisition agreement with respect to a superior proposal from a third party;
the Board’s belief, after discussion with the Company’s financial and legal advisors, that the Cowen termination fee of $42,250,000 in cash, which constitutes approximately 2.8% of the Company’s equity value in the merger, would not preclude a superior proposal from being made;
the TD expense reimbursement that may be owed by TD to the Company in connection with the termination of the merger agreement under certain specified circumstances;
the terms of the merger agreement granting the Company flexibility to make compensation decisions necessary to attract and retain key employees between signing the merger agreement and consummation of the merger, including the Company’s negotiated flexibility to grant Retention Awards and Targeted Compensation Arrangements (as described in the section entitled “— Interests of the Company’s Directors and Executive Officers in the Merger—Parent Retention Awards and Targeted Compensation Arrangements” beginning on page 75 of this proxy statement) and Parent’s commitment to maintain an annual bonus incentive plan, program or arrangement for
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the benefit of the Continuing Employees in the ordinary course of business consistent with past practice during the Continuation Period (as described in the section entitled “The Merger Agreement” beginning on page 85 of this proxy statement); and
the other terms and conditions of the merger agreement, including the representations and warranties of the parties, which the Board determined, following extensive negotiations, taken as a whole, were reasonable.
For a detailed discussion of the terms and conditions of the merger agreement, see the section entitled “The Merger Agreement” beginning on page 85 of this proxy statement.
Appraisal Rights. The Board considered that, as a general matter, holders of common stock who do not vote in favor of the adoption of the merger agreement and the approval of the merger and who otherwise comply with the requirements of Delaware law will be entitled to dissenters’ appraisal rights to receive the statutorily determined “fair value” of their shares of capital stock of the Company. You should read the section entitled “Appraisal Rights” beginning on page 120 of this proxy statement and Section 262 of the DGCL, a copy of which may be accessed without subscription or cost at the following publicly available website: https://delcode.delaware.gov/title8/c001/sc09/index.html#262, for a more complete discussion of dissenters’ appraisal rights.
Specific Performance. The Board considered that the Company is entitled to an injunction or injunctions to prevent breaches or threatened breaches of the merger agreement or to enforce specifically the performance of the terms and provisions of the merger agreement (including TD’s and Merger Sub’s obligations to consummate the merger), in addition to any other remedy to which the Company is entitled at law or in equity.
Opportunity for Company Stockholders to Vote. The Board considered the fact that the merger would be subject to the approval of the Company stockholders, and the Company stockholders would be free to evaluate the merger and vote for or against the merger proposal at the special meeting.
In the course of its deliberations, the Board also considered a variety of risks and other countervailing factors weighing against the merger, the merger agreement and the transactions contemplated thereby, including, among other things, the following non-exhaustive list of material factors (not necessarily in order of relative importance):
No Participation in the Company’s Future Growth or Earnings. The Board considered that if the merger is consummated, stockholders of the Company will receive the merger consideration in cash and will no longer have the opportunity to participate in any future earnings or growth of the Company or the combined company or benefit from any potential future appreciation in the value of the Company’s capital stock, including any value that could be achieved if the Company engages in future strategic or other transactions and/or is successful in commercializing its combination with TD’s platform.
Closing Conditions. The Board considered the fact that there can be no assurance that all of the conditions to the parties’ obligations to consummate the merger will be satisfied even if the merger agreement is adopted by the Company stockholders.
Non-Solicitation Covenant. The Board considered that the merger agreement imposes restrictions on the Company’s solicitation of acquisition proposals from third parties and requires the Company to provide TD with information and an opportunity to negotiate amendments to the merger agreement prior to the Company being able to terminate the merger agreement in order to accept a superior proposal from a third party, although the Board believes this would not preclude other potential acquirors from submitting proposals to acquire the Company.
Company Termination Fee. The Board considered the fact that the Company must pay TD the Cowen termination fee of $42,250,000 in cash if the merger agreement is terminated under certain circumstances, including to accept a superior proposal from a third party, and that the amount of the Cowen termination fee is comparable to termination fees in transactions of a similar size, is reasonable, would not likely deter competing acquisition proposals and would not likely be required to be paid
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unless the Company entered into an alternative acquisition agreement with respect to a superior proposal from a third party. The Board also recognized that the provisions in the merger agreement relating to these fees were insisted upon by TD as a condition to entering into the merger agreement.
Company Forbearances. The Board considered that the merger agreement, subject to certain exceptions, imposes restrictions on the conduct of the Company’s business prior to the effective time or earlier termination of the merger agreement, requiring the Company to use reasonable best efforts to conduct its business in the ordinary course in all material respects and to maintain and preserve substantially intact its business organization, employees and advantageous business relationships that are material to it and not to, and not permit any of its subsidiaries to, take certain actions, which may delay or prevent the Company from undertaking business opportunities that may arise pending consummation of the merger. For a detailed discussion of the terms and conditions of the Company forbearances under the merger agreement, see the section entitled “The Merger Agreement—Covenants and Agreements—Cowen Forbearances” beginning on page 93 of this proxy statement.
Risk Associated with Failure to Consummate the Merger. The Board considered the possibility that the merger might not be consummated, and the fact that if the merger is not consummated:
the Company’s directors, senior management and other employees will have expended extensive time and effort and will have experienced significant diversion of their attention from the Company’s ongoing business operations during the pendency of the merger;
the Company will have incurred significant transaction costs;
the Company’s ability to retain and hire key personnel and its ability to maintain relationships with its customers, clients, vendors and others with whom it does business could be adversely affected;
the trading price of shares of the class A common stock could be materially and adversely affected; and
the market’s perceptions of the Company’s prospects as a standalone public company could be adversely affected.
Timing and Regulatory Risks. The Board considered the amount of time it could take to consummate the merger, including that the consummation of the merger depends on several factors outside of the Company’s or TD’s control and the risk that the pendency of the merger for an extended period of time following the announcement of the execution of the merger agreement could divert management’s attention and have an adverse impact on the Company, including its client and other business relationships. The Board also considered the regulatory approvals that would be required to consummate the merger, the prospects for receiving such approvals and the fact that the parties would be required to use their respective reasonable best efforts to satisfy the closing conditions relating to such regulatory matters. While the Board attempted to negotiate for a “hell or high water” regulatory standard requiring TD to take or agree to all actions or restrictions necessary in order to obtain any regulatory approvals required to consummate the merger, TD was not prepared to be required to take or agree to any action or restriction that would prohibit or restrict TD from closing its pending acquisition of First Horizon Corporation, and the Board considered that under the terms of the merger agreement, (i) the parties would be required to use their reasonable best efforts to obtain the requisite regulatory approvals for the merger and (ii) TD would not be required to take any action, or commit to take any action, or agree to any condition or restriction in connection with obtaining the requisite regulatory approvals that, individually or in the aggregate, would have or would reasonably be expected to have a material adverse effect on (A) the business, results of operations or financial condition of the Company and its subsidiaries, taken as a whole, or (B) the business, results of operations or financial condition of TD and its subsidiaries, taken as a whole (which, for this purpose, shall be deemed to be the same size as the Company and its subsidiaries, taken as a whole). For a detailed discussion of the terms and conditions related to regulatory matters, see the section entitled “The Merger Agreement—Covenants and Agreements—Reasonable Efforts; Regulatory Matters” beginning on page 96 of this proxy statement.
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Potential Future Share Price. The possibility that, although the merger provides the Company stockholders the opportunity to realize a premium to the price at which the class A common stock traded prior to the public announcement of the merger, the price of such stock might have increased in the future to a price greater than the merger consideration.
Litigation Risk. The Board considered the risk of litigation in connection with the execution of the merger agreement and the consummation of the merger.
Tax Treatment. The Board considered that the receipt of cash by the Company stockholders pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. The Board believed that this was mitigated by the fact that the entire consideration payable in the merger would be cash, providing adequate cash for the payment of any taxes due.
Other Risks. The Board considered various other risks associated with the merger and the business of the Company, as more fully described below in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 21 of this proxy statement.
The Board concluded that the uncertainties, risks and other countervailing factors weighing against the merger were outweighed by the potential benefits weighing positively in favor of the merger.
In addition, the Board was aware of and considered the fact that the Company’s executive officers and certain other employees have financial interests in the merger that may be different from, or in addition to, those of the Company stockholders generally, including those interests that are a result of new employment agreements with TD to be effective as of the closing of the merger, as described more fully below in the section entitled “—Interests of the Company’s Directors and Executive Officers in the Merger”.
The foregoing discussion of the factors considered by the Board is not intended to be exhaustive, but rather includes the material factors considered by the Board. The Board unanimously reached the conclusion to (i) approve and declare advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement; (ii) determine that it is fair and advisable to, and in the best interests of, the Company and its stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) direct that the merger agreement be submitted to the stockholders of the Company for adoption; (iv) recommend that such stockholders vote their shares of common stock in favor of adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorize the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement. In view of the wide variety of factors considered by the Board in connection with its evaluation of the merger and the complexity of these matters, the Board did not consider it practical, and did not attempt, to quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision and did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to the ultimate determination of the Board. Rather, the Board made its recommendation based on the totality of the information available to the Board, including discussions with, and questioning of, the Company’s management and its financial and legal advisors. In considering the factors discussed above, individual members of the Board may have given different weights to different factors.
This explanation of the Board’s reasons for its recommendations and other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors described in the section of entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 21 of this proxy statement.
In addition, the Board was aware of and considered the fact that the Company’s executive officers and certain other employees have financial interests in the merger that may be different from, or in addition to, those of the Company’s stockholders generally, including those interests that are a result of new employment agreements with Parent to be effective as of the closing of the merger, as described more fully below in the section entitled “—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 70 of this proxy statement.
The foregoing discussion of the factors considered by the Board is not intended to be exhaustive, but rather includes the material factors considered by the Board. The Board unanimously reached the conclusion to (i) approve and declare advisable the merger agreement, the merger and the other transactions contemplated by merger agreement; (ii) determine that it is fair and advisable to, and in the best interests of, the Company and its
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stockholders to enter into the merger agreement and consummate the merger and the other transactions contemplated by the merger agreement; (iii) direct that the merger agreement be submitted to the stockholders of the company for adoption; (iv) recommend that such stockholders vote their shares of common stock in favor of adopting the merger agreement and approving the transactions contemplated thereby (including the merger); and (v) authorize the execution, delivery and performance by the Company of the merger agreement and the consummation by the Company of the merger and the other transactions contemplated by the merger agreement. In view of the wide variety of factors considered by the Board in connection with its evaluation of the merger and the complexity of these matters, the Board did not consider it practical, and did not attempt, to quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision and did not undertake to make any specific determination as to whether any particular factor, or any aspect of any particular factor, was favorable or unfavorable to the ultimate determination of the Board. Rather, the Board made its recommendation based on the totality of the information available to the Board, including discussions with, and questioning of, the Company’s management and its financial and legal advisors. In considering the factors discussed above, individual members of the Board may have given different weights to different factors.
This explanation of the Board’s reasons for its recommendations and other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors described in the section entitled “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 21 of this proxy statement.
Financial Forecasts
The Company does not, as a matter of course, publicly disclose forecasts as to future performance, earnings or other results due to the uncertainty and unpredictability of the underlying assumptions and estimates. However, the Company has included in this proxy statement certain financial forecasts of the Company that, to the extent described herein, were furnished to the Board, the Company’s financial advisors and certain other parties potentially interested in a transaction with the Company, in connection with the discussions concerning the proposed merger.
These Financial Forecasts (as defined below) were not prepared with a view toward public disclosure or with a view toward complying with the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial data, published guidelines of the SEC regarding forward-looking statements or generally accepted accounting principles in the United States (“GAAP”). A summary of this information is presented below.
The Financial Forecasts were prepared by the management of the Company on a stand-alone basis without giving effect to entry into the merger agreement or the transactions contemplated by the merger agreement (including the merger), including but not limited to: any potential synergies that may be achieved as a result of the merger, any divestitures or other restrictions that may be imposed in connection with the receipt of any necessary governmental or regulatory approvals, any changes to the Company’s strategy or operations that may be implemented after the consummation of the merger, or the effect of any business or strategic decisions or actions which would likely have been taken if the merger agreement with Parent had not been entered into but were instead altered, accelerated, postponed or not taken in anticipation of the merger, or any costs incurred in connection with the merger. The management of the Company did not quantify synergies that may be achieved as a result of the merger. Furthermore, the Financial Forecasts do not take into account the effect of any failure of the merger to be consummated and should not be viewed as relevant or continuing in that context. The Financial Forecasts consist of three scenarios, a “Low Case”, “Base Case” and “High Case”, based on management of the Company’s reasonable best estimates and assumptions with respect to the future financial performance of the Company on a standalone basis. Management developed the three scenarios assuming a continued weak macroeconomic environment in the “Low Case”, a quick return to a healthy macroeconomic environment in the “Base Case”, and a robust macroeconomic environment and successful growth and development of early stage business initiatives (e.g., the Company’s Cowen Digital Business) in the “High Case”. Each of these scenarios were considered by the Board and assigned a probability weighting, 55% for the Low Case, 35% for the Base Case and 10% for the High Case, for purposes of considering and evaluating strategic alternatives, including for use by Ardea in connection with the rendering of Ardea’s opinion to the Board and in performing its financial analyses, as described in the section entitled “The Merger— Opinion of Ardea Partners LP” beginning on page 64 of this proxy statement.
While the Financial Forecasts were prepared in good faith, no assurances can be made regarding future events and the estimates and assumptions underlying these financial forecasts involve judgments with respect to,
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among other things, future economic, competitive, regulatory and financial market conditions and future business decisions that may not be realized and that are inherently subject to significant business, economic, competitive and regulatory uncertainties and contingencies, including, among other things, the inherent uncertainty of the business and economic conditions affecting the industries in which the Company operates, and the risk and uncertainties described under “Cautionary Statement Regarding Forward-Looking Statements” beginning on page 21 of this proxy statement, all of which are difficult to predict and many of which are outside the control of the Company and, upon consummation of the merger, will be beyond the control of the Surviving Corporation. The Company’s stockholders are urged to review the Company’s SEC filings for a description of risk factors with respect to the Company’s business. There can be no assurance that the underlying assumptions will prove to be accurate or that the projected results will be realized. Actual results likely will differ, and may differ materially, from those reflected in the Financial Forecasts, whether or not the merger is consummated. The inclusion in this proxy statement of the Financial Forecasts below should not be regarded as an indication that the Company, the Board or their respective financial advisors considered, or now consider, these forecasts to be a reliable predictor of future results. The Financial Forecasts are not fact, and neither they nor any underlying assumptions should be relied upon as being indicative of future results. The Financial Forecasts assume that the Company would continue to operate as a standalone company and do not reflect any impact of the merger. In light of the foregoing, and taking into account that the Company special meeting will be held months after the Financial Forecasts were prepared, as well as the uncertainties inherent in any forecasted information, readers of this proxy statement are strongly cautioned not to place unwarranted reliance on such information, and the Company urges all readers of this proxy statement to review Cowen’s most recent SEC filings for descriptions of Cowen’s reported financial results. See the section entitled “Where You Can Find Additional Information” beginning on page 124 of this proxy statement.
The Financial Forecasts include certain non-GAAP financial measures, including Unlevered Free Cash Flow, Economic Operating Income and Economic Operating Income per Share (in each case, as defined below). The management of the Company included forecasts of Unlevered Free Cash Flow, Economic Operating Income and Economic Operating Income per Share in the Financial Forecasts because the management of the Company believes that Unlevered Free Cash Flow, Economic Operating Income and Economic Operating Income per Share could be useful in evaluating the business, potential operating performance and cash flow of the Company and because similar non-GAAP financial measures are commonly used by investors to assess financial performance and operating results of ongoing business operations. The management of the Company included forecasts of Unlevered Free Cash Flow in the Financial Forecasts because the management of the Company believes Unlevered Free Cash Flow could be useful in evaluating the future cash flows generated by the Company.
Investors should also note that these non-GAAP financial measures presented in this proxy statement are not prepared under any comprehensive set of accounting rules or principles and do not reflect all of the amounts associated with the Company’s results of operations as determined in accordance with GAAP. While the Company believes that these non-GAAP financial measures provide meaningful information to help investors understand the Company’s operational results and to analyze the Company’s financial and business trends on a period-to-period basis, there are limitations associated with the use of these non-GAAP financial measures. Investors should also note that these non-GAAP financial measures presented in this proxy statement have no standardized meaning prescribed by GAAP and, therefore, have limits in their usefulness to investors. Because of the non-standardized definitions, the non-GAAP financial measures may be calculated differently from, and will not be directly comparable to, similarly titled measures used by the Company’s competitors and other companies in the Company’s industry, or any similarly titled measures used by such companies.
Due to the inherent limitations of non-GAAP financial measures, investors should consider non-GAAP measures only as a supplement to, not in isolation of GAAP or as a substitute for or as a superior measure to, measures of financial performance prepared in accordance with GAAP. The footnotes to the tables below provide certain supplemental information with respect to the calculation of these non-GAAP financial measures. All of the financial forecasts summarized in this section were prepared by the Company’s management. Neither KPMG LLP (“KPMG”), the Company’s independent registered public accounting firm, nor any other independent registered public accounting firm nor any other person has examined, compiled or otherwise performed any procedures with respect to the prospective financial information contained in these financial forecasts and, accordingly, neither KPMG nor any other independent registered public accounting firm has expressed any opinion or given any other form of assurance with respect thereto and no independent registered public
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accounting firm assumes any responsibility for the prospective financial information. The KPMG reports incorporated by reference in this proxy statement relate to the historical financial information of the Company. Those reports do not extend to the Financial Forecasts and should not be read to do so.
The Financial Forecasts were relied upon by Ardea for its financial analysis in connection with the preparation of its opinion and by the Board for its consideration of the merger. Financial measures provided to a financial advisor in connection with a business combination transaction are not subject to SEC rules regarding disclosures of non-GAAP financial measures, and reconciliations of non-GAAP financial measures were not provided to, nor relied upon by, Ardea or by the Board. In addition, none of the other potentially interested parties that received the Financial Forecasts were provided with any such reconciliation. Accordingly, we have not provided a reconciliation of the financial measures in this proxy statement.
By including in this proxy statement the Financial Forecasts below, none of the Company or any of its representatives has made or makes any representation to any person regarding the ultimate performance of the Company compared to the information contained in the Financial Forecasts. Accordingly, the Financial Forecasts should not be construed as financial guidance, nor relied upon as such, and the Financial Forecasts may differ in important respects from the guidance, which are presented as a range and which the Company’s management prepared based on a different set of assumptions. The inclusion of the Financial Forecasts in this proxy statement does not constitute an admission or representation by the Company that the information contained therein is material. The Financial Forecasts summarized in this section reflected the opinions, estimates and judgments of the Company’s management at the time they were prepared and have not been updated to reflect any changes since such Financial Forecasts were prepared. Neither the Company nor, after consummation of the merger, the Surviving Corporation, undertakes any obligation, except as required by law, to update or otherwise revise or reconcile the Financial Forecasts to reflect circumstances existing since their preparation, changes in general economic or industry conditions or the occurrence of unanticipated events, even in the event that any or all of the underlying assumptions are shown to be in error.
The following table sets forth a summary of the financial projections made available to the Board, the Company’s financial advisors and certain parties potentially interested in a transaction with the Company (the “Financial Forecasts”); the summary of the Financial Forecasts is not included in this proxy statement to induce any Cowen stockholder to vote in favor of the approval of the merger proposal or any other proposals to be voted on at the special meeting:
$mm
Low Case
Period(1)
2022E
excl. 1QA
2022E
2023E
2024E
2025E
2026E
Gross Revenue
$1,047
$1,378
$1,403
$1,424
$1,467
$1,515
Unlevered Free Cash Flow(2)
$382
N/A
$149
$200
$144
$165
Economic Operating Income(3)
N/A
$96
$114
$109
$113
$117
Economic Operating Income per Share(4)
N/A
$3.03
$3.57
$3.51
$3.62
$3.75
$mm
Base Case
Period(1)
2022E
excl. 1QA
2022E
2023E
2024E
2025E
2026E
Gross Revenue
$1,220
$1,550
$1,868
$1,855
$1,945
$2,073
Unlevered Free Cash Flow(2)
$477
N/A
$350
$305
$281
$333
Economic Operating Income(3)
N/A
$172
$260
$246
$264
$294
Economic Operating Income per Share(4)
N/A
$5.43
$8.17
$7.88
$8.45
$9.41
$mm
High Case
Period(1)
2022E
excl. 1QA
2022E
2023E
2024E
2025E
2026E
Gross Revenue
$1,354
$1,684
$2,056
$2,216
$2,404
$2,669
Unlevered Free Cash Flow(2)
$533
N/A
$395
$432
$406
$496
Economic Operating Income(3)
N/A
$218
$307
$345
$392
$462
Economic Operating Income per Share(4)
N/A
$6.85
$9.66
$11.03
$12.52
$14.77
(1)
“2022E excl. 1QA” represents the nine-month period beginning on April 1, 2022 and ending on December 31, 2022 and “2022E”, “2023E”,
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“2024E”, “2025E” and “2026E” represent the fiscal years ending December 31, 2022, 2023, 2024, 2025 and 2026, respectively. Unlevered Free Cash Flow for 2022E excl. 1QA excludes Unlevered Free Cash Flow for the three-month period beginning on January 1, 2023 and ending on March 31, 2022, which three-month period includes all bonus payments in respect of the fiscal year ending December 31, 2021.
(2)
“Unlevered Free Cash Flow” is defined as pre-interest expense and post-tax economic operating income to Cowen less capital expenditures, less acquisition & earnout payments, less investments, plus after-tax proceeds from sales of investments, plus income from after-tax swap realization, plus after-tax stock-based compensation expense (for awards granted prior to March 31,2022), less increases in net working capital.
(3)
“Economic Operating Income” is defined as a post-tax measure which (i) excludes the impact of depreciation & amortization expense; (ii) includes management reclassifications which the Company believes provide additional insight on the performance of the Company’s core businesses and divisions; (iii) eliminates the impact of consolidation for consolidated funds; (iv) excludes goodwill and intangible impairment; (v) excludes certain other transaction-related adjustments and/or reorganization expenses; and (vi) excludes certain costs associated with debt.
(4)
“Economic Operating Income per Share” is defined as economic operating income divided by weighted average diluted shares outstanding.
Opinion of Ardea Partners LP
Pursuant to an engagement letter between the Company and Ardea dated June 28, 2022, the Company retained Ardea as its financial advisor in connection with the transactions contemplated by the merger agreement.
At a meeting of the Board held on August 1, 2022, representatives of Ardea rendered to the Board Ardea’s oral opinion, subsequently confirmed in a written opinion dated August 1, 2022 and delivered to the Board, to the effect that, as of the date of Ardea’s written opinion, and based upon, and subject to, the factors and assumptions set forth therein, the $39.00 in cash per share of class A common stock, without interest, to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement was fair, from a financial point of view, to such holders.
The full text of Ardea’s written opinion, dated August 1, 2022, which sets forth the assumptions made, procedures followed, matters considered and qualifications and limitations upon the scope of review undertaken in connection with the opinion, is attached as Annex B to this proxy statement. The summary of the Ardea opinion contained in this proxy statement is qualified in its entirety by reference to the full text of Ardea’s written opinion. Cowen stockholders are urged to, and should, read the Ardea opinion carefully and in its entirety. Ardea provided its advisory services and opinion for the information and assistance of the Board in connection with its consideration of the transactions contemplated by the merger agreement. Ardea’s opinion does not constitute a recommendation as to how any holders of class A common stock should vote with respect to the transaction contemplated by the merger agreement or any other matter.
In connection with rendering the opinion described above and performing its related financial analyses, Ardea reviewed, among other things:
the merger agreement;
annual reports to stockholders and Annual Reports on Form 10-K of the Company for the five fiscal years ended December 31, 2021;
certain interim reports to stockholders and Quarterly Reports on Form 10-Q of the Company;
certain other communications from the Company to its stockholders;
certain publicly available research analyst reports for the Company; and
certain internal financial forecast scenarios for the Company (the Financial Forecasts, which were prepared by the management of the Company and assigned a probability weighting (the “Weightings”) for each of the scenarios by the Board, as discussed in the section entitled “The Merger — Financial Forecasts” beginning on page 61 of this proxy statement, as approved for Ardea’s use by the Board.
Representatives of Ardea have also held discussions with members of the senior management of the Company regarding their assessment of the strategic rationale for, and the potential benefits of, the transactions contemplated by the merger agreement and the past and current business operations, financial condition and future prospects of the Company; reviewed the reported price and trading activity for the class A common stock; compared certain financial information for the Company with similar financial and stock market information for certain other companies the securities of which are publicly traded; reviewed the financial terms of certain recent business combinations in the investment banking industry and in other industries; and performed such other studies and analyses, and considered such other factors, as Ardea deemed appropriate.
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For purposes of providing its advisory services and rendering the opinion described above, Ardea, with the Board’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, Ardea, without assuming any responsibility for independent verification thereof. In addition, Ardea assumed with the Board’s consent that the Financial Forecasts and the Weightings were reasonably prepared on a basis reflecting the best then-currently available estimates and judgments of the management of the Company and the Board. Ardea 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 the Company or any of its subsidiaries, and Ardea was not furnished with any such evaluation or appraisal. Ardea assumed that all governmental, regulatory or other consents and approvals necessary for the consummation of the transactions contemplated by the merger agreement will be obtained without any adverse effect on the Company or on the expected benefits of such transactions in any way meaningful to Ardea’s analysis. Ardea also assumed that the transactions contemplated by the merger agreement will be consummated on the terms set forth therein, without the waiver or modification of any term or condition therein, the effect of which would be in any way meaningful to Ardea’s analysis.
Ardea’s opinion does not address the underlying business decision of the Company to engage in the transactions contemplated by the merger agreement, the relative merits of such transactions as compared to any strategic alternatives that may be available to the Company, or any legal, regulatory, tax or accounting matters. Ardea’s opinion addresses only the fairness from a financial point of view to the holders of shares of class A common stock, as of the date of the opinion, of the $39.00 in cash per share of class A common stock to be paid to such holders pursuant to the terms of the merger agreement. Ardea did not express any view on, and Ardea’s opinion does not address, any other term or aspect of the merger agreement or the transactions contemplated thereby or any term or aspect of any other agreement or instrument contemplated by the merger agreement or entered into or amended in connection with such transactions, including, the fairness of the transactions contemplated by the merger agreement to, or any other consideration received in connection therewith by, the holders of any other class of securities, creditors, or other constituencies of the Company. In addition, Ardea did not express an opinion, whether relative to the $39.00 in cash per share of class A common stock to be paid to such holders pursuant to the terms of the merger agreement or otherwise, on either the fairness of the transaction to, or any consideration received in connection therewith by, the holders of any other class of securities, creditors, officers, directors or employees of the Company, or other constituencies of the Company or the fairness to any person (including the holders of shares of class A common stock) of the amount or nature of any compensation to be paid or payable to any of the officers, directors or employees of the Company or any class of such persons in connection with the transactions contemplated by the merger agreement. Ardea did not express any opinion as to the prices at which any securities of the Company will trade at any time or as to the impact of the transactions contemplated by the merger agreement on the solvency or viability of the Company or the ability of the Company to pay its obligations when they come due. Ardea’s opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Ardea as of, the date of its opinion and Ardea assumed no responsibility for updating, revising or reaffirming its opinion based on circumstances, developments or events occurring after the date of its opinion. Ardea’s advisory services and the opinion expressed in its opinion were provided solely for the information and assistance of the Board in connection with its consideration of the transactions contemplated by the merger agreement and such opinion does not constitute a recommendation as to how any person should act or vote with respect to such transactions or any other matter. Ardea’s opinion was approved by the Fairness Committee of Ardea.
Summary of Financial Analyses
The following is a summary of the material financial analyses presented by Ardea to the Board in connection with rendering to the Board the opinion described above. The following summary, however, does not purport to be a complete description of the financial analyses performed by Ardea, nor does the order of analyses described represent relative importance or weight given to those analyses by Ardea.
Parts of the below summary 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 Ardea’s 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 July 29, 2022, and is not necessarily indicative of current market conditions.
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Implied Acquisition Premia and Multiples
Implied Acquisition Premia. Ardea calculated that the $39.00 in cash per share of class A common stock to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement represented:
a premium of 49.0% to the closing price on June 3, 2022, the last trading day prior to TD’s initial verbal offer of $39.00 per share in cash;
a premium of 62.2% to $24.04, the closing price as of July 1, 2022, the last closing price prior to public speculation of a potential transaction between the Company and TD; and
a discount of 7.1% to the highest closing price during the 52-week period ending July 1, 2022, the last closing price prior to public speculation of a potential transaction between the Company and TD.
Implied Multiples. Ardea calculated the $39.00 in cash per share of class A common stock to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement as a multiple of:
the estimated weighted management economic operating income per diluted share (or EOI/Share) for the Company for 2022 and 2023 based on the Financial Forecasts and Weightings;
the consensus median 2022 EOI/Share and 2023 EOI/Share estimates for the Company published by FactSet as of July 29, 2022; and
the book value per basic share (or P/BV), as of March 31, 2022, as stated in the Company’s earnings release of April 29, 2022;
The results of these analyses are summarized as follows:
Implied Multiples to:
 
2022E Weighted Management EOI/Share
9.2x
2022E Consensus Median EOI/Share from FactSet
10.1x
2023E Weighted Management EOI/Share
6.7x
2023E Consensus Median EOI/Share from FactSet
6.5x
Book Value per share
1.0x
Valuation Analyses
1. Illustrative Discounted Cash Flow Analysis
Ardea performed an illustrative discounted cash flow analysis on the Company using the Financial Forecasts and the Weightings. Using the mid-year convention for discounting and illustrative discount rates ranging from 10.5% to 11.5%, which reflect estimates of the Company’s weighted average cost of capital on a standalone basis derived by application of the Capital Asset Pricing Model (or CAPM), Ardea discounted to present value as of March 31, 2022 (i) estimates of unlevered free cash flows for the Company for the nine months ending December 31, 2022 and the years 2023 through 2026 for each of the cases in the Financial Forecasts and (ii) illustrative terminal values for the Company as of December 31, 2026 derived by applying illustrative terminal multiples, ranging from 4.0x to 6.0x to 2026 estimated unlevered economic operating income for each of the cases in the Financial Forecasts. For each of the cases in the Financial Forecasts, Ardea derived a range of illustrative enterprise values for the Company by adding the range of present values it derived as described above for the period from March 31, 2022 through December 31, 2026 to the range of present values of the illustrative terminal values it derived as described above for such case. Ardea then subtracted from the range of illustrative enterprise values it derived for the Company the amount of net debt of the Company as of March 31, 2022, as provided by management of the Company and approved for Ardea’s use by the management of the Company, to calculate a range of illustrative implied equity values of the Company as of March 31, 2022. Ardea then divided the range of illustrative implied equity values by the total number of shares of class A common stock outstanding on a fully diluted basis as of March 31, 2022, as provided by management of the Company, for each case in the Financial Forecasts (reflecting the preferred stock as debt in the Low Case Financial Forecast in cases where the face value of the security would exceed the as-converted value, inclusive of any “make-whole”, and in all other cases on an as-converted basis, inclusive of any “make-whole”) to calculate an illustrative range of implied per-share equity values for each case. Ardea then applied the Weightings to such illustrative ranges of per-share
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equity values to derive an illustrative range of implied weighted per-share equity values based on the Financial Forecasts and the Weightings, which analysis resulted in an illustrative range of present values per share of class A common stock of $34 to $44 (all values rounded to the nearest dollar).
2. Illustrative Present Value of Future Stock Price and Dividends Analysis
Ardea performed an analysis to derive an illustrative range of implied present values per share of class A common stock on a standalone basis, based on implied future values calculated by Ardea for shares of class A common stock using the Financial Forecasts and Weightings.
Ardea calculated an illustrative range of implied present values per share of class A common stock as of March 31, 2022 based on hypothetical future stock prices for shares of class A common stock as of the end of each of the years 2022 through 2025 and expected cumulative dividends based on the Financial Forecasts and Weightings. For purposes of this analysis, Ardea derived hypothetical future stock prices for class A common stock by applying multiples ranging from 4.0x to 6.0x to the Company’s weighted 1-year forward projected EOI/Share as of each of December 31, 2022, 2023, 2024 and 2025, respectively. Ardea then discounted to present value these future stock prices and, using the mid-year discounting convention, the estimated dividends to be paid per share of class A common stock through the end of the applicable year to March 31, 2022, using a discount rate of 12.1%, reflecting an estimate of the Company’s cost of equity derived by application of the CAPM. This analysis resulted in a range of illustrative implied present values per share of class A common stock of $19 to $32 (all values rounded to the nearest dollar).
3. Selected Precedent Transactions Analysis
Ardea analyzed certain publicly available information relating to the selected acquisition transactions listed below since 2012 with a value greater than $100.00 million involving target companies in the investment banking industry that had product offerings that were similar to the product offerings of the Company.
While none of the companies that participated in the selected transactions is directly comparable to the Company and none of the selected transactions are directly comparable to the proposed merger, the selected transactions are transactions that, in Ardea’s professional judgment and experience, involved target companies with operations that, for the purposes of analysis, may be considered similar to certain of the Company’s results, market size and product profile.
For each of the selected transactions, Ardea calculated and compared the announced transaction value as (i) a multiple of the target company’s forward earnings, which we refer to as FY 1 P/E and (ii) a multiple of the target company’s P/BV for the last quarterly period prior to the announcement date of the transaction. For each of the selected transactions (except for the acquisition of KBW, Inc.), forward earnings represents the FactSet estimate for the target’s diluted earnings per share (or EPS) for the first fiscal year ended following announcement of the applicable transaction. For the acquisition of KBW, Inc., forward earnings represents the target’s four quarter period EPS beginning with the first quarter reported after the announcement of the applicable transaction.
The following table presents the results of this analysis:
Announced
Acquiror
Target
Transaction
Value
FY1 P/E
P/BV
November 5, 2012
Stifel Financial Corp.
KBW, Inc.
$0.6bn
11.1x
1.4x
 
 
 
 
 
 
November 12, 2012
Leucadia National Corporation
Jefferies Group, Inc.
$3.8bn
14.3x
1.0x
 
 
 
 
 
 
July 9, 2019
Piper Jaffray Companies
Sandler O’Neil + Partners, L.P.
$0.5bn
N/A
N/A
 
 
 
 
 
 
September 8, 2021
Citizens Financial Group, Inc.
JMP Group LLC
$0.1bn
9.0x
2.1x
Based on the results of the foregoing calculations and Ardea's analysis of the various transactions and its professional judgment, Ardea applied a reference range of FY1 P/E multiples of 9.0x to 14.3x to the estimated 2022 EOI/Share of the Company, based on the Financial Forecasts and Weightings. This analysis resulted in an
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illustrative range of implied values of $38 to $61 per share of class A common stock (all values rounded to the nearest dollar). Ardea also applied a reference range of P/BV multiples of 1.0x to 2.1x to the book value per share as reported by the Company as of March 31, 2022. This analysis resulted in an illustrative range of implied values of $37 to $79 per share of class A common stock (all values rounded to the nearest dollar).
4. Historical Premia Analysis
Ardea reviewed and analyzed, using publicly available data obtained from FactSet, the premia paid in all-cash acquisitions of publicly traded companies in the U.S. in the financial services industry (excluding real estate investment trusts), listed on the NASDAQ or New York Stock Exchange, with transaction values greater than or equal to $500.00 million announced between January 1, 2012 and July 29, 2022. Ardea calculated the median, average and 90th percentile of the values of premia of the price paid per share relative to the target company’s last undisturbed closing price prior to the announcement of the relevant transaction.
The following table represents the results of this analysis:
Metric
Premium
Median
27.1%
Average
34.1%
90th Percentile
58.3%
Ardea, based on its review of the foregoing data and its professional judgment and experience, applied a selected range of premia from 27.1% to 58.3% to the closing price of class A common stock on July 1, 2022, of $24.04 to derive a range of implied values per share of class A common stock of $31 to $38 (all values rounded to the nearest dollar).
General
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 Ardea’s opinion. In arriving at its fairness determination, Ardea considered the results of all of its analyses and did not attribute any particular weight to any factor or analysis considered by it. Rather, Ardea made its determination as to fairness on the basis of its professional judgment and experience 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 the Company or the transactions contemplated by the merger agreement.
Ardea prepared these analyses for purposes of Ardea providing its opinion to the Board that, as of the date of its opinion and based upon, and subject to, the assumptions made, procedures followed, matters considered and qualifications and limitations upon the scope of review undertaken by Ardea, the $39.00 in cash per share of class A common stock to be paid to the holders of shares of class A common stock pursuant to the terms of the merger agreement was fair, from a financial point of view, to such holders. 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 the Company, Ardea or any other person assumes responsibility if future results are materially different from those forecasted.
The transaction consideration was determined through arm’s-length negotiations between the Company and TD and was approved by the Board. Ardea provided advice to the Company during these negotiations. Ardea did not, however, recommend any specific amount or type of consideration to the Company or the Board or that any specific amount or type of consideration constituted the only appropriate consideration for the transactions contemplated by the merger agreement.
As described above, Ardea’s opinion to the Board was one of many factors taken into consideration by the Board in making its determination to approve the merger agreement and the transactions contemplated thereby. The foregoing summary does not purport to be a complete description of the analyses performed by Ardea in connection with the fairness opinion and is qualified in its entirety by reference to the written opinion of Ardea attached as Annex B to this proxy statement.
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Ardea is engaged in merger and acquisition advisory services, investment banking, underwriting services, private placements of securities and other financial and non-financial activities and services for various persons and entities. Ardea and its affiliates and employees, and funds or other entities they manage or in which they invest or have other economic interest or with which they co-invest, may at any time, directly or indirectly, 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 the Company, TD, any of their respective affiliates and third parties or any currency or commodity that may be involved in the transactions contemplated by the merger agreement. Ardea acted as financial advisor to the Company in connection with, and participated in certain of the negotiations leading to, the transactions contemplated by the merger agreement. During the two-year period ended August 1, 2022, Ardea has not been engaged by the Company and/or TD and/or their respective affiliates to provide financial advisory, underwriting and/or other financial and non-financial services for which Ardea has recognized compensation. Ardea may in the future provide financial advisory, underwriting and/or other financial and non-financial services to the Company, TD and their respective affiliates for which Ardea may receive compensation.
The Board selected Ardea as its financial advisor because it is an internationally recognized investment banking firm that has substantial experience in transactions similar to the transactions contemplated by the merger agreement. Pursuant to an engagement letter between the Company and Ardea dated June 28, 2022, the Company retained Ardea as its financial advisor in connection with the transactions contemplated by the merger agreement. In connection with the transaction, Ardea will receive financial advisory fees from the Company estimated, based on the information available as of the date of the announcement, to be approximately $22.9 million, $2 million of which became payable upon the announcement of the merger and the remainder of which is payable contingent upon the completion of the transactions contemplated by the merger agreement. Further, the Company has agreed to reimburse Ardea for certain of its expenses, including reasonable attorney’s fees and disbursements and to indemnify Ardea and related persons against various liabilities, including certain liabilities under federal securities laws.
Certain Effects of the Merger
If the Cowen stockholder approval is obtained, the other conditions to the closing of the merger are either satisfied or (to the extent permitted by law) waived and the merger is consummated, Merger Sub will be merged with and into the Company upon the terms set forth in the merger agreement. As the surviving corporation in the merger, the Company will continue to exist following the merger as a direct, wholly owned indirect subsidiary of Parent.
At the effective time, each share of common stock issued and outstanding immediately prior to the effective time (except for (i) shares of common stock owned by the Company or Parent (in each case, other than shares of common stock (A) held in trust accounts, managed accounts, mutual funds and the like, or otherwise held in a fiduciary or agency capacity, or (B) held, directly or indirectly, in respect of a debt previously contracted) and (ii) any shares of common stock with respect to which dissenters’ rights have been exercised) will be automatically canceled and converted into the right to the merger consideration. Following the merger, all of the common stock will be beneficially owned by Parent, and none of the current holders of common stock will, by virtue of the merger, have any ownership interest in, or be a stockholder of, the Company or the Surviving Corporation (except to the extent such holder also holds shares of preferred stock), which will remain issued and outstanding following the effective time of the merger as shares of preferred stock of the Surviving Corporation, with the exception of preferred dissenting shares (as defined below)).
As a result, the current holders of common stock will no longer benefit from any increase in the value, nor will they bear the risk of any decrease in the value, of the Company. Following the merger, Parent will benefit from any increase in the Company’s value and also will bear the risk of any decrease in the Company’s value.
At the effective time of the merger, each share of preferred stock issued and outstanding immediately prior to the effective time of the merger will remain issued and outstanding immediately following the effective time of the merger, with the exception of preferred dissenting shares. After the effective time of the merger, the holders of preferred stock of the Surviving Corporation will be entitled to convert their shares into the right to receive $39.00 in cash per share, on an as converted basis at the conversion rate of 39.2214x.
See the section entitled “The Merger Agreement—Merger Consideration” beginning on page 86 of this proxy statement.
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For information regarding the effects of the merger on the Company’s outstanding equity awards, see the sections entitled “—Interests of the Company’s Directors and Executive Officers in the Merger” and “The Merger Agreement—Treatment of Compensation Awards” beginning on page 70 and 86, respectively, of this proxy statement.
Shares of class A common stock are currently registered under the Exchange Act and listed on the Nasdaq Global Select Market under the trading symbol “COWN”. Following the consummation of the merger, shares of class A common stock will no longer be traded on the Nasdaq Global Select Market or any other public market. In addition, the registration of class A common stock under the Exchange Act is expected to be terminated, and, upon such termination, the Company will no longer be required to file periodic and other reports with the SEC with respect to the class A common stock.
Effects on the Company if the Merger Is Not Consummated
In the event that the Cowen stockholder approval is not obtained or if the merger is not consummated for any other reason, Cowen stockholders will not receive any payment for their shares of common stock in connection with the merger. Instead, the Company will remain an independent public company, the class A common stock will continue to be listed and traded on the Nasdaq Global Select Market, the class A common stock will continue to be registered under the Exchange Act and the Company’s stockholders will continue to own their shares of common stock and will continue to be subject to the same general risks and opportunities as they currently are with respect to ownership of the common stock.
If the merger is not consummated, there is no assurance as to the effect of these risks and opportunities on the future value of your common stock, including the risk that the market price of common stock may decline to the extent that the current market price of the common stock reflects a market assumption that the merger will be consummated. If the merger is not consummated, there is no assurance that any other transaction acceptable to the Company will be offered or that the business, operations, financial condition, earnings or prospects of the Company will not be adversely impacted. Pursuant to the merger agreement, under certain circumstances the Company is permitted to terminate the merger agreement in order to enter into an alternative transaction. See the section entitled “The Merger Agreement—Termination of the Merger Agreement” beginning on page 110 of this proxy statement.
Under certain circumstances, Cowen will be required to pay TD a termination fee equal to $42,250,000.00 in cash and, under certain other circumstances, TD will be required to pay Cowen an expense reimbursement including (i) $10,000,000 for fees and expenses of third party advisors and other transaction costs, (ii) the aggregate face amount of employee retention awards which have been allocated and communicated to employees of Cowen (subject to certain limitations and requirements) and (iii) the designated capped amount for the premium of an insurance policy that may, at the request of TD, be bound by Cowen pursuant to the merger agreement. For more information, see the sections entitled “The Merger Agreement—Termination Fee” and “The Merger Agreement—Expense Reimbursement” beginning on pages 111 and 112, respectively, of this proxy statement.
Financing of the Merger
The consummation of the merger is not conditioned on Parent’s receipt of any financing. Parent and Merger Sub have represented to the Company in the merger agreement that they have sufficient funds or access thereto, and Parent will at the closing have immediately available funds in cash, to pay when due all amounts payable by it under the merger agreement and to fulfill its obligations under the merger agreement. Parent has acknowledged that the obligations of Parent under the merger agreement are not contingent upon or subject to any conditions regarding Parent’s, its affiliates’, or any other person’s ability to obtain financing or otherwise to raise capital for the consummation of the transactions contemplated by the merger agreement, including the payment of the merger consideration.
Interests of the Company’s Directors and Executive Officers in the Merger
The Company’s directors and executive officers have financial interests in the merger that may be different from, or in addition to, the interests of the Company’s stockholders generally. The members of the Board were aware of and considered these interests in reaching the determination to adopt the merger agreement and approve the transactions contemplated thereby (including the merger) and recommend that the Company’s stockholders approve the merger proposal.
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Jeffrey Solomon (Chief Executive Officer), John Holmes (Chief Operating Officer), Stephen Lasota (Chief Financial Officer) and Owen Littman (General Counsel and Secretary) are the named executive officers of the Company and the sole executive officers of the Company, and for purposes of the discussion below, are collectively referred to as the “named executive officers” or “executive officers”. In addition, while Dan Charney (Managing Director and Co-President, Cowen and Company) and Larry Wieseneck (Managing Director and Co-President, Cowen and Company) are not executive officers of the Company, they have been included for purposes of certain discussions below and are, collectively with the named executive officers, referred to as the “Executives”.
Treatment of Compensation Awards for Directors and Executives
For information regarding beneficial ownership of shares of common stock, which generally excludes the Company compensation awards described below, held by each of the Company’s directors and executive officers and all of such directors and executive officers as a group, see the section entitled “Security Ownership of Certain Beneficial Owners and Management”, beginning on page 115 of this proxy statement. Each of the Company’s directors and executive officers will be entitled to receive, for each share of common stock he or she holds, the same per share merger consideration in cash in the same manner as other Company stockholders.
Pursuant to the terms of the Executive Employment Agreements (as defined below), all outstanding Company compensation awards granted under the Equity Plans held by the Executives immediately prior to the effective time will be treated the same way as described in the section entitled “The Merger AgreementTreatment of Compensation Awards,” beginning on page 86 of this proxy statement except as follows:
Company RSUs: For each Executive except Messrs. Charney and Littman, each outstanding Company RSU as of immediately prior to the effective time that was granted in 2019 will be assumed by Parent, except that such Company RSU will be in respect of a number of Parent common shares that is equal to (i) the number of shares of class A common stock underlying such Company RSU, multiplied by (ii) the Exchange Ratio. Following the effective time, such Company RSU (A) will vest in equal installments on each of the first, second, and third anniversaries of the effective time, subject to continued employment, and (B) will otherwise be subject to the same terms and conditions applicable to such Company RSU immediately prior to the effective time (including any accelerated vesting upon qualifying terminations of employment as set forth in the applicable Equity Plan or applicable award agreement or the employment agreement with the Company). For Messrs. Charney and Littman, all outstanding and unvested Company RSUs as of immediately prior to the effective time will be subject to this treatment regardless of grant year.
Company DCAs: For each Executive except Messrs. Charney and Littman, each outstanding Company DCA as of immediately prior to the effective time that was granted in 2019 will be assumed by Parent. Such Company DCA (i) will vest in equal installments on each of the first, second, and third anniversaries of the effective time and (ii) will otherwise be subject to the same terms and conditions applicable to such Company DCA (including any accelerated vesting upon qualifying terminations of employment as set forth in the applicable Equity Plan or applicable award agreement or the employment agreement with the Company). For Messrs. Charney and Littman, all outstanding and unvested Company DCAs as of immediately prior to the effective time will be subject to this treatment regardless of grant year.
Company PSUs: Each Company PSU for which, as of immediately prior to the effective time, the applicable performance period is not complete will be assumed by Parent, except that such Company PSU will be in respect of a number of Parent common shares that is equal to the number of shares of class A common stock underlying such Company PSU, assuming achievement of applicable performance goals at target level, multiplied by the Exchange Ratio. Following the effective time, each such Company PSU (i) will no longer be subject to performance-based vesting conditions, (ii) will vest in equal installments on each of the first, second, and third anniversaries of the effective time, (iii) will vest and be settled in full upon a termination without “cause”, for “good reason” or due to death or “disability” (as such terms are defined in the Executive Employment Agreements), subject to the Executive’s (or the Executive’s estate’s or executor’s) valid release of claims in substantially the form attached to the Executive Employment Agreement, and (iv) will otherwise be subject to the same terms and conditions applicable to such Company PSU immediately prior to the effective time. Notwithstanding the foregoing, if the effective time occurs in 2022, then with respect to any Company
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PSU for which the applicable performance period ends on or before December 31, 2022 held by the Executives, (A) the number of Parent common shares underlying such Company PSU shall be determined based on actual achievement of applicable performance goals as reasonably determined by the compensation committee of the Company’s Board prior to closing in accordance with the terms of the applicable award agreement, (B) such Company PSU will vest and be settled on the originally scheduled vesting and settlement date, and (C) such Company PSU will otherwise be subject to the same terms and conditions applicable to such Company PSU immediately prior to the effective time.
The following table sets forth the value of the outstanding Company compensation awards that will already be held by each of the executive officers as of January 31, 2023 pursuant to prior year deferred compensation arrangements and previously awarded Company PSUs and the cash amounts that may be payable (on a pre-tax basis) in respect thereof in connection with the merger. The values in the table below have been determined assuming that (i) all Company RSUs and Company PSUs are valued based on the merger consideration of $39.00 per share, (ii) all Company PSUs vest assuming target level of performance, (iii) the merger closes on January 31, 2023, which is the assumed closing date only for purposes of this compensation-related disclosure, (iv) each executive officer’s employment is terminated by the Surviving Corporation without “cause” immediately following the closing and (v) each executive officer does not receive any additional grants of Company compensation awards or forfeit any Company compensation awards prior to January 31, 2023.
Outstanding Compensation Awards ($)(In Thousands)
Name(1)
Company
RSUs
Company
PSUs
Company DCAs
Total
Executive Officers
 
 
 
 
Jeffrey Solomon
11,363
6,493
8,302
26,158
John Holmes
993
1,498
731
3,222
Stephen Lasota
893
1,416
664
2,973
Owen Littman
914
1,416
676
3,006
(1)
All Company equity awards held by non-employee directors are fully vested at grant and therefore, no value has been included for these purposes.
New Executive Employment Agreements with Parent; Elimination/Reduction of Certain Current Compensation and Benefits
In order to promote and facilitate the signing of the merger agreement, each Executive entered into an employment agreement with Parent (each, an “Executive Employment Agreement” and collectively, the “Executive Employment Agreements”) which materially eliminated, reduced or deferred each Executive’s current compensation entitlements. Such material eliminations, reductions or deferrals include, but are not limited to, the waiver of certain enhanced change in control severance protections; the deferral of payment of certain Company compensation awards as described above, which will result in further deferral of payment as compared to other holders of the same award; waiver of certain retirement clauses until the third anniversary of the effective time for certain Executives, which eliminates current entitlements for vesting acceleration of certain compensation awards; and the waiver of future multipliers with respect to Company PSUs awarded in 2020 that may have occurred as a result of future performance. The Executive Employment Agreements will provide for the material terms described below and are contingent upon, and effective as of, the closing of the merger and will supersede the Executives’ existing employment agreements with the Company.
Titles
The Executives will have the following titles: Mr. Solomon - President, TD Cowen, Executive Vice President, TD Bank Group, and Vice Chair, TD Securities; Mr. Charney - Co-Head, Global Markets, TD Securities and Vice Chair, TD Cowen; Mr. Wieseneck - Co-Head, Global Investment Banking, TD Securities and Vice Chair, TD Cowen; Mr. Holmes - Chief Operating Officer, TD Cowen and Vice President, TD Bank Group; Mr. Lasota - Chief Financial Officer, TD Cowen and Vice President, TD Bank Group; and Mr. Littman - General Counsel, TD Cowen and Vice President, TD Bank Group.
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Base Salary
The Executive Employment Agreements provide for the following base salaries: $1,000,000 for Mr. Solomon, $750,000 for each of Messrs. Charney and Wieseneck, and $725,000 for each of Messrs. Holmes, Lasota and Littman.
New Annual Variable Compensation
Each Executive will be eligible for annual variable compensation in the form of cash-based and equity-based awards, with certain minimum amounts for the 2023 fiscal year. For the 2023 fiscal year, the Executives are entitled upon completion of employment for such fiscal year to certain minimum amounts (pro-rated if applicable) as it relates to their annual variable compensation as follows: $9,000,000 for Mr. Solomon, $7,750,000 for each of Messrs. Charney and Wieseneck, $2,275,000 for Mr. Holmes, and $1,775,000 for each of Messrs. Lasota and Littman. For Messrs. Solomon, Charney and Wieseneck, these amounts are not guaranteed. For the 2024 fiscal year, the Executives are entitled to target annual variable compensation amounts as set forth in their Executive Employment Agreements. For the 2025 fiscal year and beyond, the Executive Employment Agreements with Messrs. Solomon, Charney and Wieseneck provide that their target annual variable compensation amounts will be determined consistent with TD Securities’ practices for similarly situated senior executives of TD Bank Group, while the Executive Employment Agreements with Messrs. Holmes, Lasota and Littman are silent.
The cash-based portion of the annual variable compensation are paid annually in January following the attributable fiscal year and generally require continued employment through the payment date. A certain percentage of the target annual variable compensation (or minimum amount for the 2023 fiscal year) will be subject to deferral, which, for the first three fiscal years of employment under the Executive Employment Agreements, will be 60% for Mr. Solomon, 50% for Messrs. Charney and Wieseneck, and 45% for Messrs. Holmes, Lasota, and Littman, subject to the applicable TD Bank policy then in effect for the Executive’s then-applicable position. For Mr. Solomon, the equity portion of his annual variable compensation will be made in the form of Parent performance share units (“Parent PSUs”) and stock options. The Parent PSUs will cliff vest on the third anniversary of the award date, subject to performance, and the stock options will cliff vest after four years, subject to continued employment. For Messrs. Charney and Wieseneck, the equity portion of their annual variable compensation will be made in the form of Parent restricted stock units (“Parent RSUs”) that will vest on each of the first, second and third anniversaries of the award date, subject to continued employment. For Messrs. Holmes, Lasota, and Littman, the equity portion of their annual variable compensation will be made in the form of Parent RSUs that cliff vest on the third anniversary following the award date, subject to continued employment.
Retention Bonus
Each Executive will be paid a one-time cash retention bonus on the closing of the merger (the “Closing Retention Bonus”), subject to clawback if the Executive’s employment is terminated for “cause”, the Executive resigns without “good reason” (as such terms are defined in the Executive Employment Agreements), or Parent discovers that grounds existed for termination for “cause” at any time between the execution of the merger agreement and closing, in each case, within one year following closing. The amount of each Closing Retention Bonus is as follows: $12,667,000 for Mr. Solomon, $10,500,000 for each of Messrs. Charney and Wieseneck, $3,333,000 for Mr. Holmes and $3,000,000 for each of Messrs. Lasota and Littman.
In addition, each Executive will be granted a one-time deferred cash retention award (the “Deferred Retention Bonus,” and together with the Closing Retention Bonus, the “Retention Bonus”) that will vest ratably in equal one-third (1/3) installments on each of the first, second, and third anniversaries of closing, subject to the Executive’s continued employment through each applicable vesting date. The amount of each Deferred Retention Bonus is as follows: $25,333,000 for Mr. Solomon, $21,000,000 for each of Messrs. Charney and Wieseneck, $6,667,000 for Mr. Holmes, and $6,000,000 for each of Messrs. Lasota and Littman. If the Executive’s employment is terminated (i) without “cause” or due to “disability” or the Executive resigns for “good reason” (as such terms are defined in each Executive Employment Agreement), any unvested portion of the Deferred Retention Bonus will be paid on the original vesting dates, and (ii) due to death, any unvested portion of the Deferred Retention Bonus will be paid within 60 days following such termination, in each case, subject to the execution and nonrevocation of a general release of claims. If the Executive’s employment is terminated for any other reason, any unvested portion of the Deferred Retention Bonus will be forfeited.
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Integration Bonus
Each of Messrs. Solomon, Charney and Wieseneck will be granted a one-time deferred cash integration award (the “Integration Bonus”), which will cliff vest on the third anniversary of the closing of the merger, subject to continued employment. Mr. Solomon will receive an Integration Bonus of $7,500,000 and each of Messrs. Charney and Wieseneck will receive an Integration Bonus of $5,000,000. If the Executive’s employment is terminated (i) without “cause” or due to “disability,” or the Executive resigns for “good reason,” any unvested portion of the Integration Bonus will be paid on the original vesting date, and (ii) due to death, any unvested portion of the Integration Bonus will be paid within 60 days following such termination, in each case, subject to the execution and nonrevocation of a general release of claims. If the Executive’s employment is terminated for any other reason, any unvested portion of the Integration Bonus will be forfeited.
Severance Benefits
Pursuant to the Executive Employment Agreements, each Executive is generally entitled to severance benefits under Parent’s severance terms and conditions (the “Parent Severance Policy”) applicable to similarly situated employees without regard to the length of service such Executive provided to the Company prior to the effective time. In addition, the Executive Employment Agreements provide that, subject to the execution and non-revocation of a general release of claims and the Executive’s continued compliance with applicable restrictive covenants, the Executives are entitled to the following severance benefits:
if the Executive’s employment is terminated without “cause” or the Executive resigns for “good reason” (or due to death for Messrs. Solomon, Charney and Wieseneck) solely during the 2023 fiscal year (or following fiscal 2023 but prior to payment of applicable amounts, in which case the Executive will be eligible to receive the payment described in the paragraph immediately below but no portion of the payment described in the paragraph regarding fiscal 2024 or 2025), then:
for Messrs. Solomon, Charney and Wieseneck, each Executive is entitled to receive a lump-sum amount (payable on the 60th day following such termination) equal to (i) the greater of (x) 50% of the sum of (A) minimum amount of the annual variable compensation for the 2023 fiscal year, plus (B) base salary for the 2023 fiscal year and (y) a pro-rata portion of the sum of (A) plus (B), less (ii) any amount of base salary paid to the Executive during the 2023 fiscal year, less (iii) any amount of cash severance paid (or scheduled to be paid) to the Executive under the Parent Severance Policy.
for Messrs. Holmes, Lasota and Littman, each Executive is entitled to receive a lump-sum amount (payable on the 60th day following such termination) equal to the (i) (A) minimum amount of the annual variable compensation for the 2023 fiscal year, plus (B) base salary for the 2023 fiscal year, less (ii) any amount of base salary paid to the Executive during the 2023 fiscal year, less (iii) any amount of cash severance paid (or scheduled to be paid) to the Executive under the Parent Severance Policy.
if the Executive’s employment is terminated without “cause” or the Executive resigns for “good reason” solely during the 2024 or 2025 fiscal year (or following fiscal year 2024 or 2025, as applicable, but prior to payment of the applicable amounts, and in the case of such termination following fiscal 2024 but prior to payment of the applicable amounts, the Executive will be eligible to receive the payment described in this paragraph with respect to fiscal 2024 but no portion of the payment described in this paragraph with respect to fiscal 2025), then each Executive is entitled to receive a lump-sum amount (payable on the 60th day following such termination) equal to (i) the pro-rata portion of the cash portion of their target annual cash variable compensation for 2024 or 2025 fiscal year, less (ii) any amount of cash severance paid (or scheduled to be paid) to the Executive under the Parent Severance Policy. However, for each of Messrs. Holmes, Lasota and Littman, the amount in clause (i) will instead be an amount equal to the unpaid portion of his total variable compensation for fiscal year 2024 if such Executive terminates his employment at the end of the 2024 calendar year because no future role can be mutually agreed between Parent and such Executive.
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if the Executive’s employment is terminated without “cause” or due to death or “disability,” or the Executive resigns for “good reason,” then each Executive is entitled to receive a lump-sum amount (payable on the 60th day following such termination) equal to 24 months of monthly COBRA premiums (based on the percentage of the health care premium covered by Parent as of such termination) for the Executive and his dependents.
Restrictive Covenants
The Executive Employment Agreements provide for a perpetual confidentiality covenant as well as a 12-month post-termination employee and contractual relationship non-solicitation covenant and a six-month post-termination no hire covenant. The Executive Employment Agreements further provide for an 18-month noncompete period following the closing of the merger, which may be extended to 24 months with the Executive’s consent for Messrs. Solomon, Charney and Wieseneck, and for periods of 12 months and 18 months, respectively, for Messrs. Holmes, Lasota and Littman.
Treatment of 2022 Annual Bonuses For All Company Employees
The Company and Parent has agreed to fund the 2022 annual bonus pool (the “2022 Bonus Pool”) based on the lesser of (i) no greater than 56% of Company revenue on a “value given” (without benefits) basis (determined consistent with past practice), and (ii) no greater than 59% of Company revenue on an “economic income” (including the total cost of benefits, impact of deferrals, current year base salary and cash bonus, and severance) basis (determined consistent with past practice). If the effective time occurs on or prior to December 31, 2022, the 2022 Bonus Pool will be pro-rated based on the number of days that has elapsed during the performance period through the effective time. The 2022 Bonus Pool will be allocated by the Chief Executive Officer of the Company and deferrals will be made in accordance with the Company’s deferral programs, consistent with past practice and with prior reasonable consultation with Parent. Any amounts payable under the 2022 Bonus Pool will be made in cash or deferred cash awards and will generally be paid in the ordinary course of business consistent with past practice; provided that, if the Company and Parent agrees to shorten the fiscal year of the 2022 annual bonus program to match Parent’s bonus program fiscal year, such amounts will be paid at the same time as annual bonuses are paid by Parent with respect to its 2022 bonus program.
Parent Retention Awards and Targeted Compensation Arrangements
The Company and Parent have agreed that certain arrangements be put in place for purposes of the retention of Company employees. These retention arrangements will consist of two components: (1) a retention program (the “Retention Program”) established by Parent for the benefit of certain Company employees and (2) agreements or amendments to employment agreements or offer letters to maintain specified, target levels of annualized compensation for certain Company employees provided by the Company through a certain period of time (the “Targeted Compensation Arrangements”).
Except as may be otherwise agreed between Parent and the Company with respect to any individual award, awards under the Retention Program will be granted in the form of Parent RSUs and will be granted by Parent on Parent’s first regularly scheduled equity award grant date following the effective time (the “Retention Awards”). The Retention Awards will cliff vest on the third anniversary of the effective time, subject to continued employment and certain other conditions. In the event that an employee’s employment is terminated without “cause” (as defined in the Company’s 2020 Equity Incentive Plan, as amended and restated) or due to death or disability, the employee’s Retention Award will remain outstanding and vest on the original vesting date. The aggregate amount of the Retention Awards will not exceed $60 million. No Retention Award will be granted to any Executive and no individual Retention Award will be in excess of $3 million (other than (x) as set forth on a compensation annex as of the date of the merger agreement or (y) with the prior review and approval by Parent).
The Targeted Compensation Arrangements will be provided by the Company other than the Executives to certain employees of the Company and will consist of minimum levels of base salary and targeted bonuses through October 31, 2023. The aggregate amount of the Targeted Compensation Arrangements for all such recipients will not exceed $225 million, and any amount of the Targeted Compensation Arrangements shall be allocated from, and shall not be additive to, the 2022 Bonus Pool for the applicable period.
Continuing Employee Benefits
The merger agreement provides for certain customary protections regarding the compensation and benefits of employees of the Company, including the Executives, during their employment with Parent and its affiliates
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until December 31, 2023. These provisions are described in more detail in the section entitled “The Merger Agreement—Employee Benefits Matters” beginning on page 101 of this proxy statement.
Section 280G Mitigation Actions
The Company may take certain actions before the effective time to mitigate the amount of potential “excess parachute payments” for “disqualified individuals” (each as defined in Section 280G of the Code). As of the date hereof, the Company has not yet approved any specific actions to mitigate the expected impact of Section 280G of the Code on the Company and any disqualified individuals. No Executive is entitled to receive gross-ups or tax reimbursements from the Company with respect to any potential excise taxes.
Director and Officer Indemnification
Pursuant to the terms of the merger agreement, members of the Board and the executive officers will be entitled to certain ongoing indemnification and coverage under directors’ and officers’ liability insurance policies following the merger. For a more detailed description of the provisions of the merger agreement relating to director and officer indemnification, see the section entitled “The Merger Agreement—Covenants and Agreements—Indemnification” beginning on page 102 of this proxy statement.
Quantification of Payments and Benefits
In accordance with Item 402(t) of Regulation S-K, the table below sets forth for each of the Company’s named executive officers estimates of the amounts of compensation that are based on or otherwise relate to the merger for which payment is not conditioned upon a termination or resignation of such named executive officer (i.e., on a “single-trigger” basis) or in the event of a qualifying termination of employment following the merger (i.e., on a “double-trigger” basis). The holders of shares of common stock are being asked to approve, on a non-binding, advisory basis, such compensation. Because the vote to approve such compensation is advisory only, it will not be binding on either the Company, the Board, Parent or the Surviving Corporation. Accordingly, if the merger proposal is approved by the holders of shares of common stock and the merger is consummated, the compensation will be payable regardless of the outcome of the vote to approve such compensation, subject only to the conditions applicable thereto, which are described in the footnotes to the tables below and above under “—Interests of the Company’s Directors and Executive Officers in the Merger”.
The potential payments in the tables below are quantified in accordance with Item 402(t) of Regulation S-K. The estimated values are based on (i) an assumption that the merger is consummated on January 31, 2023, (ii) the per share merger consideration of $39.00, (iii) each named executive officer’s Executive Employment Agreement being effective, (iv) the number of unvested Company compensation awards held by the named executive officers as of immediately prior to January 31, 2023, and assuming no additional grants or forfeitures of Company compensation awards prior to January 31, 2023, and (v) an assumption that each named executive officer experiences a termination of employment without “cause” immediately following the consummation of the merger. As such, the amounts indicated below are estimates based on multiple assumptions that may or may not actually occur, including assumptions described in this proxy statement, and do not reflect certain compensation actions that may occur before consummation of the merger. As a result, the actual amounts, if any, to be received by a named executive officer may materially differ from the amounts set forth below.
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As further detailed below, and in each case, subject to the assumptions set forth in the paragraph immediately above, (i) the amounts quantified in the “Equity” column and with respect to the Company DCAs component in the “Cash” column represent arrangements that existed between the Company and the Executives prior to the entry into the merger agreement (the total amounts for such existing arrangements in the aggregate for each of Messrs. Solomon, Holmes, Lasota and Littman equal approximately (in thousands) $26,158, $3,222, $2,973 and $3,006, respectively), and (ii) the amounts quantified with respect to the Severance Benefit in the “Cash” column represent arrangements entered into in connection with the consummation of the merger, and which are payable in connection with a termination without “cause” in the 2023 fiscal year. The amounts shown below do not attempt to quantify any reduction that may be required as a result of a 280G best-net cutback, which all named executive officers are subject to; therefore, actual payments to the named executive officers may be substantially less than the amounts indicated below.
Potential Payments to Named Executive Officers ($)(In Thousands)
Name
Cash(1)
Equity(2)
Perquisites/
Benefits(3)
Total
Jeffrey Solomon
58,719
17,856
99
76,674
John Holmes
13,671
2,491
44
16,206
Stephen Lasota
12,104
2,309
46
14,459
Owen Littman
12,116
2,330
67
14,513
(1)
The amounts shown in this column represent the estimated value of (i) the severance benefits attributable to base salary and annual variable compensation (assuming the applicable fiscal year ends on December 31 and a termination without “cause” immediately following the consummation of the merger), (ii) the Retention Bonus and Integration Bonus (if applicable), and (iii) unvested Company DCAs previously granted in respect of compensation for prior years as of immediately prior to the closing of the merger, in each case, pursuant to the terms of each named executive officer’s Executive Employment Agreement. If such executive’s employment is terminated without “cause” in the 2023 fiscal year, Mr. Solomon is entitled to a severance benefit equal to 50% of the sum of (A) the minimum amount attributable to his 2023 annual variable compensation and (B) his annual base salary for the 2023 fiscal year, minus base salary paid for the 2023 fiscal year through the termination date, and each of Messrs. Holmes, Lasota and Littman is entitled to a severance benefit equal to the sum of (A) the minimum amount attributable to their respective 2023 annual variable compensation and (B) their respective annual base salary for the 2023 fiscal year, minus base salary paid for the 2023 fiscal year through the termination date. The Retention Bonus for each named executive officer consists of the Closing Retention Bonus, which is payable on the closing (subject to clawback), and the Deferred Retention Bonus, which vests ratably in equal installments over three years following the closing, subject to continued employment. Mr. Solomon is also entitled to an Integration Bonus, which cliff vests at the third anniversary of closing, subject to continued employment. Upon a termination without “cause,” the unvested portion of the Deferred Retention Bonus and Integration Bonus will continue to become vested on their original vesting date(s). All unvested Company DCAs are “double-trigger” and will become vested upon a termination of employment without “cause,” other than the unvested Company DCAs granted to (x) Messrs. Solomon, Holmes and Lasota in 2020, which are “single-trigger” and will become vested solely as a result of the consummation of the merger and (y) Mr. Littman in 2020, which will become vested upon a termination of employment without “cause”. All payments and benefits described hereunder are subject to the named executive officer’s execution and nonrevocation of a general release of claims, other than benefits with respect to “single-trigger” arrangements. Set forth below are the separate values for the cash severance benefits, Closing Retention Bonus, Deferred Retention Bonus, Integration Bonus and unvested Company DCAs reflected in the table above. The aggregate amount (in thousands) attributable to unvested Company DCAs that are “single-trigger” is $2,067 ($1,575 for Mr. Solomon, $256 for Mr. Holmes and $236 for Mr. Lasota) and the aggregate amount (in thousands) attributable to unvested Company DCAs that are “double-trigger” is $8,069 ($6,727 for Mr. Solomon, $475 for Mr. Holmes, $428 for Mr. Lasota and $439 for Mr. Littman).
 
Cash ($)(In Thousands)
Name
Severance
Benefit
Closing
Retention
Bonus
Deferred
Retention
Bonus
Integration
Bonus
Company
DCAs
Total
Jeffrey Solomon
4,917
12,667
25,333
7,500
8,302
58,719
John Holmes
2,940
3,333
6,667
731
13,671
Stephen Lasota
2,440
3,000
6,000
664
12,104
Owen Littman
2,440
3,000
6,000
676
12,116
(2)
The amounts shown in this column represent the estimated aggregate value of the named executive officers’ unvested Company RSUs and Company PSUs previously granted in respect of compensation for prior years as of immediately prior to closing pursuant to the terms of each named executive officer’s Executive Employment Agreement . All unvested Company RSUs and Company PSUs are “double-trigger” and will become vested upon a termination of employment without “cause,” other than the unvested Company RSUs granted to (x) Messrs. Solomon, Holmes and Lasota in 2020, which are “single-trigger” and will become vested solely as a result of the consummation of the merger and (y) Mr. Littman in 2020, which will become vested upon a termination of employment without “cause”. The value attributable to Company PSUs assumes target level of performance. All payments and benefits described hereunder are subject to the named executive officer’s execution and nonrevocation of a general release of claims, other than benefits with respect to “single-trigger” arrangements. Set forth below are the separate values for the Company RSUs and Company PSUs. The aggregate amount (in thousands) attributable to unvested Company RSUs that are “single-trigger” is $3,325 ($2,534 for Mr. Solomon, $411 for Mr. Holmes, and $380 for Mr. Lasota) and the aggregate amount (in thousands) attributable to unvested Company RSUs that are “double-trigger” is $10,458 ($8,829 for Mr. Solomon, $582 for Mr. Holmes, $513 for Mr. Lasota and $534 for Mr. Littman).
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Equity ($)(In Thousands)
Name
Company
RSUs
Company
PSUs
Total
Jeffrey Solomon
11,363
6,493
17,856
John Holmes
993
1,498
2,491
Stephen Lasota
893
1,416
2,309
Owen Littman
914
1,416
2,330
(3)
The amounts shown in this column represent an estimate of the value of severance benefits attributable the COBRA premiums under the terms of the Executive Employment Agreements. Upon a termination of employment without “cause,” each named executive officer is entitled to receive an amount equal to 24 months of monthly COBRA premiums (based on the percentage of the health care premium covered by Parent as of such termination) for such executive and his dependents, subject to the execution and non-revocation of a general release of claims.
Material U.S. Federal Income Tax Consequences of the Merger
The following discussion summarizes the material U.S. federal income tax consequences to holders with respect to the disposition of common stock of the Company pursuant to the merger. It is not intended to be a complete analysis or description of all potential U.S. federal income tax consequences of the merger and does not address consequences to holders of class B common stock or preferred stock or Company equity awards. This discussion is based upon the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), and all of which are subject to change or varying interpretation, possibly with retroactive effect. Any such changes could affect the accuracy of the statements and conclusions set forth herein. The Internal Revenue Service may not agree with the tax consequences described in this discussion.
This discussion assumes that holders of common stock hold their shares as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all aspects of U.S. federal income taxation that may be relevant to a holder of common stock in light of such holder’s particular circumstances, nor does it discuss the special considerations applicable to holders of common stock subject to special treatment under the U.S. federal income tax laws, such as, for example, financial institutions or broker-dealers, mutual funds, partnerships or other pass-through entities and their partners or members, tax-exempt organizations, retirement or other tax-deferred accounts, insurance companies, dealers in securities or non-U.S. currencies, traders in securities who elect mark-to-market method of accounting, controlled foreign corporations, passive foreign investment companies, U.S. expatriates, holders who acquired their shares of common stock through the exercise of stock options or otherwise as compensation, holders subject to the alternative minimum tax, holders who hold their shares of common stock as part of a hedge, straddle, constructive sale or conversion transaction, U.S. holders (as defined below) whose functional currency is not the U.S. dollar, accrual method holders who prepare an “applicable financial statement” (as defined in Section 451 of the Code) and holders who own or have owned (directly, indirectly or constructively) 10% or more of the common stock (by vote or value) outstanding. In addition, this discussion does not address any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction or U.S. federal non-income tax consequences (e.g., the federal estate or gift tax or the application of the Medicare tax on net investment income under Section 1411 of the Code).
If an entity or arrangement treated as a partnership for U.S. federal income tax purposes holds common stock, the tax treatment of a partner in such partnership generally will depend on the status of the partner and activities of the partnership. If you are a partner of a partnership holding common stock, you should consult your own tax advisor.
All holders should consult their own tax advisor to determine the particular tax consequences to them (including the application and effect of any state, local or non-U.S. income and other tax laws) of the receipt of cash in exchange for shares of common stock pursuant to the merger.
For purposes of this discussion, the term “U.S. holder” means a beneficial owner of common stock, that is, for U.S. federal income tax purposes:
an individual citizen or resident of the United States;
a corporation (including any entity treated as a corporation for U.S. federal income tax purposes) created or organized in or under the laws of the United States, any state thereof or the District of Columbia;
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a trust if (1) its administration is subject to the primary supervision of a court within the United States and one or more U.S. persons, within the meaning of Section 7701(a)(30) of the Code, have the authority to control all substantial decisions of the trust or (2) it has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person for U.S. federal income tax purposes; or
an estate, the income of which is subject to U.S. federal income tax regardless of its source.
A “non-U.S. holder” is a beneficial owner (other than a partnership or an entity or arrangement classified as a partnership for U.S. federal income tax purposes) of common stock that is not a U.S. holder.
U.S. Holders
The receipt of cash pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. A U.S. holder generally will recognize gain or loss for U.S. federal income tax purposes equal to the difference, if any, between the amount of cash received pursuant to the merger and such U.S. holder’s adjusted tax basis in the shares of common stock converted into cash pursuant to the merger. Such gain or loss generally will be capital gain or loss and will be long-term capital gain or loss if the holder’s holding period for such shares exceeds one year as of the date of the merger. Long-term capital gains for certain non-corporate U.S. holders, including individuals, are generally eligible for a reduced rate of U.S. federal income taxation. The deductibility of capital losses is subject to limitations. If a U.S. holder acquired different blocks of common stock at different times or at different prices, such U.S. holder must determine its tax basis, holding period, and gain or loss separately with respect to each block of common stock.
A U.S. holder may, under certain circumstances, be subject to information reporting and backup withholding (at a rate of 24%) with respect to the cash received pursuant to the merger, unless such holder properly establishes an exemption or provides its correct tax identification number and otherwise complies with the applicable requirements of the backup withholding rules. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules can be refunded or credited against a U.S. holder’s U.S. federal income tax liability, if any; provided that such U.S. holder furnishes the required information to the Internal Revenue Service in a timely manner.
Non-U.S. Holders
Any gain recognized on the receipt of cash pursuant to the merger by a non-U.S. holder generally will not be subject to U.S. federal income tax unless:
the gain is effectively connected with a U.S. trade or business of such non-U.S. holder (and, if required by an applicable income tax treaty, is also attributable to a permanent establishment or, in the case of an individual, a fixed base in the United States maintained by such non-U.S. holder), in which case the non-U.S. holder generally will be subject to tax on such gain in the same manner as a U.S. holder and, if the non-U.S. holder is a non-U.S. corporation, such corporation may be subject to branch profits tax at the rate of 30% on the effectively connected gain (or such lower rate as may be specified by an applicable income tax treaty);
the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more in the taxable year of the merger and certain other conditions are met, in which case the non-U.S. holder generally will be subject to tax at a 30% rate (or a lower applicable income tax treaty rate) on any gain derived from the disposition of the common stock pursuant to the merger (other than gain effectively connected with a U.S. trade or business), which may be offset by U.S. source capital losses; or
the Company stock constitutes a “United States real property interest” (“USRPI”) for U.S. federal income tax purposes under the Foreign Investment in Real Property Tax Act of 1980 (“FIRPTA”).
If our shares of common stock constitute a USRPI under FIRPTA, a non-U.S. holder would be subject to U.S. federal income tax on any gain or loss recognized on the receipt of cash in exchange for such shares of common stock in the merger on a net basis at applicable U.S. graduated rates in the same manner as a U.S. holder, and such cash consideration may also be subject to the U.S. federal withholding tax under FIRPTA at a rate of 15%. A non-U.S. holder’s shares of common stock generally will not constitute a USRPI, and gain recognized by a non-U.S. holder upon receipt of cash in exchange for our shares of common stock pursuant to
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the merger generally will not be subject to U.S. federal income or U.S. federal withholding tax under FIRPTA, if our shares of common stock are “regularly traded” (within the meaning of applicable U.S. Treasury Regulations) on an established securities market at the effective time (and the non-U.S. holder holds 5% or less of the total fair market value of such class of shares at all times during the shorter of (x) the five year period ending with the effective date of the merger and (y) the non-U.S. holder’s holding period for the shares). We believe that our shares of common stock are, and will be at the effective time, regularly traded on an established securities market (within the meaning of the applicable Treasury Regulation). In any event, the Company does not believe it has been a “United States real property holding corporation” for United States federal income tax purposes at any time during the five-year period preceding the Merger.
Non-U.S. holders should consult their own tax advisors regarding the application of the foregoing rules in light of their particular facts and circumstances, the procedures for claiming treaty benefits or otherwise establishing an exemption from U.S. withholding tax with respect to any portion of the cash consideration payable to them pursuant to the merger.
A non-U.S. holder will be subject to information reporting and, in certain circumstances, backup withholding will apply with respect to the cash received by such holder pursuant to the merger, unless such non-U.S. holder certifies under penalties of perjury that it is a non-U.S. holder (and the payor does not have actual knowledge or reason to know that the holder is a United States person as defined under the Code) or such holder otherwise establishes an exemption from backup withholding. Backup withholding is not an additional tax and any amounts withheld under the backup withholding rules may be refunded or credited against a non-U.S. holder’s U.S. federal income tax liability, if any; provided that such non-U.S. holder furnishes the required information to the Internal Revenue Service in a timely manner.
Dividends
The Company has historically declared and paid a cash dividend each quarter. On July 20, 2022, the Company declared a regular quarterly dividend of $0.12 per share of common stock for the quarter ended June 30, 2022, which will be paid on September 15, 2022 to Cowen stockholders of record at the close of business on September 1, 2022. Pursuant to the terms of the merger agreement, the Company is prohibited from making, declaring, paying or setting a record date for any dividend, or any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exercisable for any shares of its capital stock or other equity or voting securities, including any securities of the Company or any of its subsidiaries, except (A) regular quarterly cash dividends by the Company at a rate not in excess of $0.12 per share of common stock, (B) dividends paid by any of the Company’s subsidiaries to the Company or any of its wholly owned subsidiaries, (C) dividends provided for and paid on preferred stock in accordance with the terms of such preferred stock and (D) the acceptance of shares of common stock as payment for withholding taxes incurred in connection with the vesting or settlement of awards of Company RSUs or Company PSUs, in each case, in accordance with past practice and the terms of the applicable stock plans and award agreements thereunder.
Dividends are declared and paid at the discretion of the Board. The Board may change the Company’s dividend policy at any time and there can be no assurance as to amount or timing of dividends in the future.
Regulatory Approvals in Connection with the Merger
To complete the merger, Cowen and TD are required to obtain approvals or consents from, or make filings with, a number of U.S. and non-U.S. regulatory authorities. Subject to the terms of the merger agreement, Cowen and TD have agreed to, and to cause their respective subsidiaries to, cooperate and use their reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperation with the other parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the merger and the other transactions contemplated by the merger agreement.
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Cowen, TD and Merger Sub will cooperate with each other and use their reasonable best efforts to (i) promptly prepare and file all necessary documentation to effect all applications, notices, petitions and filings necessary or advisable to consummate the transactions contemplated by the merger agreement and, in the case of the requisite regulatory approvals, make such filings within forty-five (45) days of August 1, 2022 (subject to the timely receipt by the party making such filing of all necessary information from the other party as may be reasonably requested for the preparation of such filing), (ii) promptly (and no later than any deadline imposed by such governmental entity) supply such information and documentary material as may be reasonably responsive to any request made by any governmental entity in connection with such applications, notices, petitions and filings, (iii) obtain as promptly as practicable all permits, consents, approvals and authorizations of all third parties and governmental which are necessary or advisable to consummate the transactions contemplated by the merger agreement (including the merger) as promptly as practicable, and (iv) comply with the terms and conditions of all such permits, consents, approvals and authorizations of all such governmental entities. The term “requisite regulatory approvals” includes:
the approval of the transactions contemplated by the merger agreement from the Financial Industry Regulatory Authority (“FINRA”) pursuant to FINRA Rule 1017;
the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976;
the approval of the Superintendent of Financial Institutions (Canada) pursuant to s. 468(6) of the Bank Act (Canada);
non-objection from the Canadian securities commissions under Section 11.9(1)(a) of National Instrument 31-103 - Registration Requirements, Exemptions and Ongoing Registrant Obligations in respect of the deemed acquisition, for the first time, by the applicable subsidiaries of TD of ten percent or more of the voting securities of Cowen and its applicable subsidiaries;
approval from the Ontario District Council of the Investment Industry Regulatory Organization of Canada (“IIROC”) under IIROC dealer member rule 2206(1) to permit TD to form and maintain an interest in new “associates” that carry on “securities related business”;
notice to IIROC under IIROC dealer member rule 2215(2) to permit TD to own an interest in new entities that do not carry on “securities related business”.
approval by the Hong Kong Securities and Futures Commission, pursuant to Section 132 of the Securities and Futures Ordinance (Chapter 571 of the laws of Hong Kong) (the “SFO”), of TD and each other person or entity which will (due to its relationship with TD) be regarded as a substantial stockholder (as such term is defined under Schedule 1 to the SFO) of Cowen and Company (Asia) Limited;
approval of the acquisition of Cowen International Limited and Cowen Executive Services Limited by the UK Financial Conduct Authority under the Financial Services and Markets Act 2000 (“FSMA”);
in respect of the “controllers” who will “acquire or increase control” (as such words are meant in section 178 of the FSMA) over Cowen International Limited and Cowen Execution Services Limited by virtue of the merger and any related transaction, the approval by the UK Financial Conduct Authority of the acquisition or increase of control by the controllers pursuant to sections 178 and 189 of the FSMA;
Cowen Execution Services Limited is a Member of the London Stock Exchange. Notice to the London Stock Exchange will be required at least twenty-one (21) days in advance of the proposed Effective Time;
Cowen International Limited is a Member of MarketAxess MTF. Prompt notification to MarketAxess MTF will be required in advance of the Effective Time;
approval by the Presidency of Council of Ministries (Italy) pursuant to Law Decree no. 21/2012 and implementing decrees (Golden Power Decree);
approval of the foreign investment into F2G Biotech GmbH by the Austrian Federal Ministry of Labour and Economy in accordance with Section 7 of the Austrian Investment Control Act;
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approval from the Malta Financial Services Authority of the (indirect) transfer of ownership and control of Cowen Insurance under the Insurance Business Act, Chapter 403 of the laws of Malta;
approval (or non-objection) of the acquisition of an indirect qualifying holding in Cowen Reinsurance S.A. from the Commissariat aux Assurances in Luxembourg under the law of 7 December 2015 on the insurance sector, as amended;
approval of (or a statement of no objection to) any change of controller resulting from the acquisition of Kelvin Re Limited from the Guernsey Financial Services Commission, under the Insurance Business (Bailiwick of Guernsey) Law, 2002;
approval by the New York Department of Financial Services (the “NYDFS”), to the extent prior approval from the NYDFS is required under applicable law for the merger as a result of an indirect change of control of Standard Custody & Trust Company, LLC, a wholly owned subsidiary of Polysign, Inc. (“Polysign”); provided that, if Cowen and TD have taken all actions necessary, proper or advisable to restructure or otherwise dispose of Cowen’s indirect equity investment in PolySign such that (a) no prior approval for the merger from the NYDFS would be required and (b) Cowen’s indirect equity investment in PolySign would be permissible as a non-controlling investment under U.S. and Canadian bank regulatory standards for TD to hold indirectly, such approval will no longer constitute a requisite regulatory approval;
approval by the Nuclear Regulatory Commission (the “NRC”), to the extent prior approval from the NRC is required under applicable law for the merger in connection with an indirect transfer of control of NRC licenses held by EnergySolutions, Inc. or its subsidiaries (collectively, “EnergySolutions”); provided that, if (i) Cowen and TD have taken all actions necessary, proper or advisable to restructure or otherwise dispose of Cowen’s interests in EnergySolutions such that (a) TD, following the effective time, would not, directly or indirectly, have beneficial ownership of 5% or more of the outstanding shares of any class of equity securities of EnergySolutions, Inc., (b all Cowen subsidiaries would be in compliance with the applicable regulations of the NRC and would not be would be owned, controlled or dominated by any foreign person or entity (as such terms are interpreted and applied by the NRC) and (c) no prior approval for the merger from the NRC (any such approval, an “NRC Approval”) would be required in connection with the indirect transfer of control of NRC licenses held by EnergySolutions or its Subsidiaries and (ii) the NRC has not requested an application for NRC Approval approval, such approval will no longer constitute a requisite regulatory approval;
if any cognizant security agency (as such term is used in 32 C.F.R. Part 117) that has granted EnergySolutions a facility security clearance in accordance with the National Industrial Security Program that remains valid and in effect immediately prior to the Closing (any such agency, a “CSA”) informs TD or Cowen in writing that, notwithstanding any EnergySolutions restructuring that has been implemented, mitigation of foreign ownership, control or influence (“FOCI”) would be required to avoid the invalidation, following the closing, of such facility security clearance (a “CSA mitigation request”), the