VIASP VIA Renewables Inc

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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SCHEDULE 13E-3

Rule 13e-3 Transaction Statement under Section 13(e)

of the Securities Exchange Act of 1934

(Amendment No. 4)

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Via Renewables, Inc.

(Name of the Issuer)

 

Via Renewables, Inc.

William Keith Maxwell, III

Retailco, LLC

NuRetailco LLC

TxEx Energy Investments, LLC

Electric HoldCo, LLC

NuDevco Retail Holdings, LLC

NuDevco Retail, LLC

(Name of Persons Filing Statement)

 

Class A common stock, par value $0.01 per share

(Title of Class of Securities)

 

92556D304

(CUSIP Number of Class of Securities)

 

With copies to:

 

(Name, Address, and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement)

 

This statement is filed in connection with (check the appropriate box):

 

Check the following box if the soliciting materials or information statement referred to in checking box (a) are preliminary copies: ☐

Check the following box if the filing is a final amendment reporting the results of the transaction: ☐

 

NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE TRANSACTION CONTEMPLATED HEREIN, PASSED UPON THE MERITS OR FAIRNESS OF SUCH TRANSACTION, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THIS DOCUMENT.  ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.

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Introduction

 

This Amendment No. 4 (this “Amendment”) to the Rule 13e-3 Transaction Statement on Schedule 13E-3 (as originally filed on February 12, 2024), together with the exhibits hereto (as amended through the date hereof, this “Schedule 13E-3”), is being filed with the Securities and Exchange Commission (the “SEC”) pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the “Exchange Act”), jointly by the following persons (each a “Filing Person,” and collectively the “Filings Persons”): (i) Via Renewables, Inc. (the “Company”), a Delaware corporation and the issuer of the shares of Class A common stock, par value $0.01 per share (the “Class A Common Stock”), that are subject to the transaction pursuant to Rule 13e-3 under the Exchange Act; (ii) Retailco, LLC, a Texas limited liability company (“Parent”); (iii) NuRetailco LLC, a Delaware limited liability company and wholly-owned subsidiary of Parent (“Merger Sub”); (iv) William Keith Maxwell, III, an individual resident of the State of Texas and the sole owner of Parent and the indirect owner of Merger Sub (“Mr. Maxwell”); (v) TxEx Energy Investments, LLC, a Texas limited liability company, of which Mr. Maxwell is the direct sole owner (“TxEx”); (vi) Electric HoldCo, LLC, a Texas limited liability company, of which Mr. Maxwell is the indirect sole owner (“Electric Holdco”); (vii) NuDevco Retail Holdings, LLC, a Texas limited liability company, of which Mr. Maxwell is the indirect sole owner (“NuDevco Retail Holdings”); and (viii) NuDevco Retail, LLC, a Texas limited liability company, of which Mr. Maxwell is the indirect sole owner (“NuDevco Retail” and, together with Mr. Maxwell, TxEx, Electric Holdco and NuDevco Retail Holdings, the “Maxwell Filing Persons”).

As of March 25, 2024, Mr. Maxwell beneficially owned, individually and/or through one or more affiliates controlled by him, approximately (a) 23.2% of the outstanding Class A Common Stock and 100% of the Company’s outstanding Class B common stock, par value $0.01 per share (the “Class B Common Stock” and, together with the Class A Common Stock, the “Common Stock”). Such ownership comprises approximately 65.7% of the issued and outstanding Common Stock.

On December 29, 2023, the Company, Parent, and Merger Sub entered into an Agreement and Plan of Merger (the “Merger Agreement”), which provides for, among other things, the merger of Merger Sub with and into the Company (the “Merger”), with the Company surviving the Merger as the surviving corporation and becoming a subsidiary of Parent (the “Surviving Corporation”), and the other transactions contemplated thereby (the “Transactions”). If the Merger is completed, then the shares of Class A Common Stock (other than: (i) shares of Class A Common Stock held (a) by the Company or any subsidiary of the Company, or (b) held or beneficially owned by Mr. Maxwell and any person or entity controlled by Mr. Maxwell, including Parent, Merger Sub and NuDevco Retail (such shares in (a) and (b), the “Excluded Shares”), and (ii) shares of Class A Common Stock held by any holder of record who did not vote in favor of the Merger Agreement and the Merger and is entitled to demand and validly demands appraisal of such shares pursuant to, and complies in all respects with, Section 262 of the Delaware General Corporation Law (the “DGCL”) (the “Dissenting Shares”)) will be canceled and converted into the right to receive $11.00 in cash, without interest (the “Merger Consideration”).

If the Merger is completed, the Company, as the Surviving Corporation, will continue its operations under the name “Via Renewables, Inc.” Additionally, if the Merger is completed: (i) the registration of the shares of Class A Common Stock and the Company’s reporting obligations with respect to the shares of Class A Common Stock under the Exchange Act will be terminated upon application to the SEC; (ii) the shares of Class A Common Stock will no longer be listed on any stock exchange or quotation system, including the Nasdaq Global Select Market (“NASDAQ”); and (iii) Mr. Maxwell and his affiliates will be the registered or beneficial owners of all of the shares of Class A Common Stock and all issued and outstanding shares of Class B Common Stock. The Company’s 8.75% Series A Fixed-to-Floating Rate Cumulative Redeemable Perpetual Preferred Stock, par value $0.01 per share (the “Series A Preferred Stock”), is also registered under the Exchange Act, and is listed on the NASDAQ under the symbol “VIASP”. The Merger will not have any impact on the registration of the Series A Preferred Stock under the Exchange Act or the continued listing of the Series A Preferred Stock on NASDAQ. Accordingly, the Company expects that it will continue to be subject to the Exchange Act and continue to file reports with the SEC under the Exchange Act.

The board of directors of the Company (the “Board”) (other than Mr. Maxwell, Chairman of the Board, who is the sole owner of Parent and did not attend the meeting at which the Board considered the Merger), based on the unanimous recommendation of its Special Transaction Committee (the “Special Committee”) comprised solely of independent directors, has unanimously determined and approved (1) that the terms of the Merger Agreement, the Merger, the Merger Consideration and the Transactions, are fair to, and in the best interests of the Company and its shareholders (other than certain Excluded Shares and any shares held by any (i) member of the Board, (ii) any “officer” of the Company (as defined by Rule 16a-1(f) under the Exchange Act) and (iii) any immediate family members of any of the foregoing individuals (such shares in (b) being referred to as the “Insider Shares”) as set forth in the Merger Agreement), (2) that the Merger and the Transactions are in the best interests of the Company and its shareholders (other than the Excluded Shares and Insider Shares as set forth in the Merger Agreement), (3) that it is advisable for the Company to execute and deliver the Merger Agreement and to perform its covenants and other obligations under the Merger Agreement and to consummate the Merger upon the terms and conditions set forth in the Merger Agreement, and (4) recommended that the shareholders of the Company approve and adopt the Merger Agreement and the transactions contemplated thereby (including the Merger and the Transactions).

If the Merger is completed, at the effective time of the Merger (the “Effective Time”):

•	Each of the outstanding shares of the Class A Common Stock other than (i) the Excluded Shares and (ii) Dissenting Shares will be canceled and converted into the right to receive the Merger Consideration;

•	each Excluded Share will be canceled without payment of any consideration thereof;

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each Dissenting Share will be canceled and converted into the right to receive payment of such amounts that are payable in accordance with Section 262 of the DGCL and will not have the right to receive the Merger Consideration, unless and until such shareholder loses, waives or withdraws its rights as a dissenting Company shareholder; and

•	each share of capital stock of the Merger Sub will be converted into one share of Class A Common Stock of the Surviving Corporation.

All of the outstanding restricted stock units of the Company (the “Company RSUs”) other than the restricted stock units of the Company held by Mr. Maxwell (the “Maxwell RSUs”), all of which are held by current and former employees and directors of the Company, including its executive officers, will be canceled, extinguished and converted into the right to receive cash (without interest) equal to the number of shares of Class A Common Stock underlying the award multiplied by the Merger Consideration. All of the Maxwell RSUs shall automatically be canceled and cease to exist at the Effective Time and no consideration therefor shall be delivered or deliverable to Mr. Maxwell.

Concurrently with the execution and delivery of the Merger Agreement, Parent, Merger Sub, Mr. Maxwell and four other affiliated entities, TxEx, Electric Holdco, NuDevco Retail Holdings, and NuDevco Retail (the “Subject Shareholders”), entered into a support agreement pursuant to which, among other things, the Subject Shareholders have agreed, subject to the terms and conditions set forth therein, to vote their shares of Common Stock in favor of the approval and adoption of the Merger Agreement and the Transactions, including the Merger. It also reflects the Subject Shareholders’ agreement to vote against any proposal, offer or submission with respect to a Competing Transaction (as defined in the Merger Agreement).

The Merger is not subject to any financing condition, and the Maxwell Filing Persons intend to fund the amount needed for the Merger Consideration from a Credit Agreement and Guaranty dated as of August 15, 2023 (the “Credit Facility”) by and among Parent, TxEx, and NuDevco Retail, as Borrowers (the “Borrowers”); and Mr. Maxwell, Electric Holdco, and NuDevco Retail Holdings, as Guarantors (the “Guarantors”); Woodforest National Bank, a national banking association, as administrative agent, lead arranger and sole bookrunner; and Origin Bank, as syndication agent.

The Credit Facility provides for one or more secured term loan borrowings until August 15, 2025. The Borrowers may not borrow, repay, and reborrow term loans under the Credit Facility. Borrowings under the Credit Facility are secured by substantially all property of the Borrowers and the Guarantors, including, among others, (i) any properties encumbered by mortgages in favor of the administrative agent, and (ii) all of TxEx’s equity interests in Parent and Electric Holdco, all of the shares of Class B Common Stock of the Company owned by Parent and NuDevco Retail, all of Electric Holdco’s equity interests in NuDevco Retail Holdings, and all of NuDevco Retail Holdings’ equity interests in NuDevco Retail. All shares of Class B Common Stock of the Company held by Parent and NuDevco Retail are pledged as collateral under the Credit Facility.

Borrowings under the Credit Facility bear interest at varying rates, depending on the type of loan and the rates of designated benchmarks and the applicable Borrower’s election. For all borrowings under the Credit Facility, the applicable Borrower may choose among the following interest rates: (i) for any day, an interest rate equal to the highest of (1) the prime rate in effect on that day, (2) the federal funds effective rate in effect on that day plus 0.5%, and (3) adjusted term SOFR for a one-month interest period plus 1.00%, in each case plus an applicable margin of 3.0%; or (ii) an interest rate equal to adjusted term SOFR plus an applicable margin of 4.0%.

The Credit Facility contains customary covenants relating to the Borrowers and the Guarantors concerning, among other things, investments, dispositions of assets, indebtedness, liens on assets, and dividends and other distributions. The Credit Facility contains customary events of default. If an event of default occurs and is continuing, the lenders may, among other things, terminate their obligations under the Credit Facility and require the Borrowers to repay all amounts thereunder. In addition, in the case of an event of default arising from certain events of bankruptcy, insolvency or reorganization, the lenders’ obligations under the Credit Facility will automatically terminate and all amounts outstanding under the Credit Facility will automatically become due and payable. The Credit Facility will expire on August 15, 2026.

The Borrowers intend to repay the borrowings under the Credit Facility pursuant to its terms. There are no current plans or arrangements to repay the loan aside from those terms and conditions as set forth in the Credit Facility agreement. The Maxwell Filing Persons have no other current alternative financing plans or arrangements in the event the Maxwell Filing Persons are unable to obtain the funds necessary to pay the Merger Consideration from the Credit Facility.

On March 28, 2024, the Company filed with the SEC a definitive proxy statement under Regulation 14A of the Exchange Act, which proxy statement was supplemented and amended by that certain proxy supplement, filed by the Company with the SEC as additional definitive proxy soliciting material on Schedule 14A on April 30, 2024, as further supplemented and amended by that certain proxy supplement, filed by the Company with the SEC as additional definitive proxy soliciting material on Schedule 14A on May 2, 2024, as further supplemented and amended by that certain proxy supplement, filed by the Company with the SEC as additional definitive proxy soliciting material on Schedule 14A on May 13, 2024 (nothing contained in the proxy supplement filed with the SEC by the Company on May 13, 2024 shall be deemed an admission of the legal necessity, materiality or usefulness of any of the disclosures set forth therein), as further supplemented and amended by that certain proxy supplement, filed by the Company with the SEC as additional definitive proxy soliciting material on Schedule 14A on May 14, 2024, and as further supplemented by that certain proxy supplement, filed by the Company with the SEC as additional definitive proxy soliciting material on Schedule 14A on May 23, 2024 (the “Proxy Statement”), relating to a special meeting of the shareholders of the Company at which the shareholders of the Company will consider and vote upon a proposal to adopt the Merger Agreement. The Merger remains subject to the satisfaction or waiver of the conditions set forth in the Merger Agreement, including obtaining the affirmative vote of (i) the holders of at least a majority of the issued and outstanding shares of Common Stock, and (ii) as a non-waivable condition, the holders of at least a majority of the issued and outstanding shares of Common Stock other than (A) Excluded Shares and (B) Insider Shares, in each case of (i) and (ii) in accordance with the Company’s certificate of incorporation and bylaws and Delaware law.

On May 23, 2024, the Company adjourned the special meeting of its shareholders, scheduled to be held on the same date, in connection with a vote to adopt the Merger Agreement (the “Special Meeting”). Because there were insufficient votes at the time of the Special Meeting to adopt the Merger Agreement, the holders of the Company’s Common Stock as of the close of business on March 25, 2024 (the “Record Date”) approved a proposal to adjourn the Special Meeting until 10:00 AM Central Time on June 7, 2024, to allow holders of the Company’s Common Stock as of the close of business on the Record Date additional time to exercise their voting rights. Except as set forth in this Amendment, all information in the Schedule 13E-3 remains unchanged.

The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required to be included in response to the items of Schedule 13E-3. Pursuant to General Instruction F to Schedule 13E-3, the information contained in the Proxy Statement, including all appendices thereto, is incorporated in its entirety herein by this reference, and the responses to each item in this Schedule 13E-3 are qualified in their entirety by the information contained in the Proxy Statement and the appendices thereto. Capitalized terms used but not defined in this Schedule 13E-3 shall have the meanings given to them in the Proxy Statement.

All information contained in this Schedule 13E-3 concerning each Filing Person has been supplied by such Filing Person.

 

The information set forth in the Proxy Statement under the following caption is incorporated herein by reference:

 

 

 

 

 

	“Questions and Answers About the Special Meeting and the Merger”
	“Rights of Appraisal”
	Appendix D: Section 262 of the Delaware General Corporation Law

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SIGNATURE

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

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VIA Renewables (NASDAQ:VIASP)
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