Apartment Income REIT Corp - Ordinary Shares (AIRC) 8-KOther Events

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The Company denies that it has violated any laws or breached any duties to the Company’s stockholders, denies all allegations in the Demand Letters and the Complaints, and believes that no supplemental disclosure to the Preliminary Proxy Statement and/or the Definitive Proxy Statement was or is required under any applicable law, rule or regulation. However, solely to eliminate the burden and expense of potential litigation, to moot certain of the claims made in the Demand Letters and the Complaints, to avoid nuisance and potential delay or disruption to the Merger, and to provide additional information to the Company’s stockholders, the Company has determined to voluntarily supplement the Definitive Proxy Statement with the below disclosures. The Company believes that the disclosures in the Preliminary Proxy Statement and the Definitive Proxy Statement comply fully with applicable law and nothing in the supplemental disclosures will be deemed an admission of the legal necessity or materiality under applicable law of any of the disclosures set forth herein or of the legal merit of the legal proceedings described in the Definitive Proxy Statement.

These following supplemental disclosures should be read in connection with the Definitive Proxy Statement, which should be read in its entirety. The inclusion in this supplement to the Definitive Proxy Statement of certain information should not be regarded as an indication that any of the Company or its affiliates, officers, directors or other representatives, or any other recipient of this information, considered, or now considers, it to be material, and such information should not be relied upon as such. To the extent that information herein differs from or updates information contained in the Definitive Proxy Statement, the information contained herein supersedes the information contained in the Definitive Proxy Statement. Capitalized terms used but not defined herein have the meanings set forth in the Definitive Proxy Statement, unless otherwise defined below. All page references in the information below are to pages in the Definitive Proxy Statement. For clarity, new text within restated paragraphs (other than tables and related footnotes) from the Definitive Proxy Statement is highlighted with bold, underlined text, and deleted text within restated paragraphs from the Definitive Proxy Statement is highlighted with strikethrough text.

During the afternoon of Sunday, March 31Monday, April 1, 2024, the independent directors of the board met virtually, without Mr. Considine and management, to further discuss the non-binding proposals received to date. Representatives of Skadden were in attendance for a portion of the meeting. The independent directors discussed, among other matters, the proposals from Blackstone and Party A, and the proposed transaction structure and process, including next steps.

At this meeting, the board and the Company’s management again discussed the financial projections, the bases on which they were prepared, and various potential risks and rewards of continuing to pursue the Company’s stand-alone business plan. Representatives from Citi provided to the board additional preliminary financial analysis of the Company and the updated bids. Further, representatives from Skadden reminded the directors of their legal duties with respect to an acquisition of the Company and reviewed the key terms of the initial Blackstone documentary submissions, including (i) those described in the paragraph regarding the events on April 1, 2024, above, (ii) the board’s ability to change its recommendation under certain circumstances and the ability for third parties to submit, and the Company to enter into, an agreement with respect to a superior proposal by paying a termination fee, along with matching rights in favor of the buyer if any superior proposal were received, and (iii) that certain matters related to retention of employees through closing and treatment of certain existing employee benefits entitlements remained to be negotiated. Members of the board asked questions and discussion ensued among the board, the Company’s management and representatives from Citi and Skadden related to the terms of the updated Blackstone proposal, the Company’s recourse if a transaction were not consummated, the terms of the updated Blackstone proposal relative to recent similar Blackstone transactions, and Blackstone’s track record in similar deals. The board also discussed again the transaction structure, including that the proposed merger involving the Company would not impact the Partnership and that all Partnership units would remain outstanding. The board also reviewed and discussed the relationship disclosures that Citi provided regarding certain relationships between Citi and its affiliates, on the one hand, and the Company, Blackstone and Party A, as applicable, on the other hand.

At the time of the execution of the merger agreement, Blackstone had not discussed, and no letter of intent or proposal received from Blackstone (including the initial Blackstone proposal, the updated Blackstone proposal or the final Blackstone proposal), or Party A contained any proposal regarding, the terms of any post-closing employment, or equity participation or board or other management positions for the Company’s management (other than the fact that the Partnership would remain in place and that the Partnership units would remain outstanding) with any members of the Company’s management or the board.

Citi conducted a discounted cash flow analysis of the Company using the financial projections for the purpose of determining an implied fully diluted equity value per share for our common stock (taking into account the OP Units held by third parties). Based on the financial projections, Citi calculated the estimated present value of unlevered free cash flows that the Partnership was forecasted to generate during the fiscal years ending December 31, 2024 through December 31, 2028. Citi also calculated a range of terminal values for the Partnership by applying a range of terminal capitalization rates of 5.5% to 6.0%, which range was selected by Citi based on its professional judgment and experience, to the projected fiscal year 2029 net operating income of the Partnership. The unlevered free cash flows and the range of terminal values were then discounted to present values reflecting implied enterprise values for the Partnership, as of December 31, 2023, using mid-year convention and discount rates ranging from 10.1% to 11.0%, reflecting estimates of the Company’s weighted average cost of capital selected by Citi utilizing its professional judgement and experience, and derived from Citi’s review of public filings, Bloomberg and FactSet Research Systems. From the range of implied enterprise values it derived for the Company, Citi subtracted the Company’s net debt of approximately $3,263 million as of December 31, 2023 (calculated as total debt and preferred equity, less cash and cash equivalents) to derive the equity value of the Company, and subsequently divided such equity value by the approximately 155.4 million fully-diluted shares of common stock (taking into account the OP Units held by third parties) outstanding as of April 5, 2024, as provided by the Company’s management, to derive an implied share price range.

Citi performed a selected public companies analysis to estimate an implied per share value of the Company through an analysis of the public share price and enterprise value of similar publicly-traded companies. Citi reviewed financial and stock information of the Company and the eight selected publicly-traded companies listed below, which we refer to as the “selected companies”, and which are all publicly traded REITs in the multi-family sector. No publicly-traded company is identical to us, but the selected companies were chosen because, among other reasons, they possessed certain financial, operational or business characteristics that, in Citi’s view, based on its professional judgment, were sufficiently comparable to those of the Company or otherwise relevant for purposes of comparison to the Company. Except as otherwise disclosed, no individual multiples were derived from the selected public companies or selected precedent transactions and none were independently determinative of the results of such analyses.

Citi selected the following publicly-traded REITs:

In the ordinary course of Citi’s business, Citi and its affiliates may actively trade or hold the securities of the Company and the Parent Entities or their affiliates for Citi’s own account or for the account of Citi’s customers and, accordingly, may at any time hold a long or short position in such securities.  As of April 1, 2024, Citi held, on a proprietary basis, less than 1% of the outstanding equity securities of (i) the Company and (ii) Blackstone, Inc., which is an affiliate of the Parent Entities.  In addition, Citi and its affiliates (including Citigroup Inc. and its affiliates) may maintain relationships with the Company, the Parent Entities and/or their respective affiliates.

Certain of our directors and executive officers hold LTIP units. As of May 13, 2024,  (i) Mr. Considine owns 3,454,185 LTIP units, (ii) Ms. Finney-Cooke owns 12,111 LTIP units, (iii) Mr. Murphy owns 12,111 LTIP units, (iv) Ms. Paláu-Hernández owns 4,250 LTIP units, (v) Mr. Rayis owns 12,301 LTIP units, (vi) Ms. Sperling owns 12,111 LTIP units and (vii) Ms. Tran owns 12,111 LTIP units. After the merger, the outstanding LTIP units will remain issued and outstanding, and will continue to have the rights, privileges and obligations set forth in the applicable award agreement and the Partnership LPA, as amended in connection with the completion of the merger, which includes a right to convert into Partnership Common Units from time to time at the election of the holder thereof. The LTIP units are convertible into a number of Partnership Common Units based on the extent to which the LTIP units vest (or previously vested at the completion of the relevant performance period) based on achievement of performance goals and satisfaction of service-based vesting conditions, and certain LTIP units (which we refer to as “LTIP II units”) are also subject to a conversion price that reduces the number of Partnership Common Units into which they convert. We refer to LTIP units that are not subject to a conversion price as “LTIP I units”. For LTIP II units, it is anticipated that, after giving effect to the LPA Amendment, the number of Partnership Common Units issued upon conversion at or after the closing will be determined based on (i) (a) the value of a Partnership Common Unit (as determined by the General Partner in good faith) at the date of conversion minus (b) the closing trading price of a share of Company common stock at the date of grant, as adjusted, divided by (ii) the value of a Partnership Common Unit (as determined by the General Partner in good faith) at the date of conversion.

As described above in “The Merger—Financing”, the Parent Entities have informed us that they currently are pursuing obtaining approximately $3.5 billion to $4.8 billion an aggregate of approximately $2.9 billion to $3.4 billion of debt financing to be incurred by the Partnership and/or certain of its subsidiaries, which would be provided substantially concurrently with the closing of the merger. The Parent Entities have indicated to us that they anticipate causing the Partnership to distribute, substantially concurrently but effective after the closing of the merger, a majority some of the debt closing financing proceeds to the Partnership unitholders including the Company, in accordance with the terms of the Partnership Agreement, to allow the Company to fund a portion of the merger consideration using its share of such distribution. The Parent Entities have informed us that any such distribution could be in an amount of approximately $11 $6 to $20 $10 per Partnership Common Unit. We note that any such distribution would result in the holder of a Partnership Common Unit receiving cash and the value of such Partnership Common Unit being reduced accordingly. In addition, as described above in “The Merger—Financing”, the Parent Entities also have informed us that they are pursuing obtaining up to an additional approximately $1.6 billion of debt financing, which may be incurred by the Partnership and/or certain of its subsidiaries during the third quarter of 2024. If the additional financing is obtained, the Parent Entities have also informed us that they anticipate causing the Partnership to distribute the majority of the proceeds from the additional financing, following the incurrence thereof, to the Partnership’s unitholders, including the Company, and that any such distribution could be in an amount of up to approximately $10 per Partnership Common Unit.  We note that that any such distribution would result in the holder of a Partnership Common Unit receiving cash and the value of such Partnership Common Unit being reduced accordingly. The Parent Parties have indicated to us that they expect the actual amount of such financings and the actual amount of any such distribution will depend on interest rates and numerous other factors in the financing markets at the time of closing the related financing, and no assurance can be provided that any such distribution will occur or that it will occur within the expected timeframe.

Assuming the Parent Entities obtain such debt the closing financing and the additional financing described above and such the related distributions is are made, (i) based on the number of Partnership Common Units and LTIP units that Mr. Considine holds as of May 13, 2024, the Parent Entities have indicated that Mr. Considine, entities he controls and his spouse could receive an aggregate distribution amount, disregarding any reduction for tax withholding, of up to approximately $24 million to $45 million in respect of his and their Partnership Common Units and Class I High Performance Partnership Units and up to approximately $4 million to $7 million in respect of his LTIP units, assuming full vesting thereof and (ii) based on the number of LTIP Units each of Ms. Finney-Cooke, Mr. Murphy, Ms. Paláu-Hernández, Mr. Rayis, Ms. Sperling and Ms. Tran holds as of May 13, 2024, the Parent Entities have indicated that Ms. Finney-Cooke, Mr. Murphy, Ms. Paláu-Hernández, Mr. Rayis, Ms. Sperling and Ms. Tran could receive an aggregated distribution amount, disregarding any reduction for tax withholding, of up to $242,220, $242,220, $85,000, $246,020, $242,220 and $242,220, respectively, in respect of their respective LTIP units.

This communication includes certain disclosures which contain “forward-looking statements” within the meaning of the federal securities laws, including but not limited to those statements related to the Merger, including financial estimates and statements as to the expected timing, completion and effects of the Merger. You can identify forward-looking statements because they contain words such as “expect,” “believe,” “target,” “project,” “goals,” “estimate,” “potential,” “predict,” “may,” “will,” “might,” “could,” “forecast,” “outlook” and variations of these terms or the negative of these terms and similar expressions. Forward-looking statements, including statements regarding the Merger, are based on the Company’s current expectations and assumptions. Because forward-looking statements relate to the future, they are subject to inherent uncertainties, risks and changes in circumstances that may differ materially from those contemplated by the forward-looking statements, which are neither statements of historical fact nor guarantees or assurances of future performance.

Important factors, risks and uncertainties that could cause actual results to differ materially from such plans, estimates or expectations include but are not limited to: (i) the parties’ ability to complete the Merger on the anticipated terms and timing, or at all, including the Company’s ability to obtain the required stockholder approval, and the parties’ ability to satisfy the other conditions to the completion of the Merger; (ii) potential litigation relating to the Merger that could be instituted against the Company or its directors, managers or officers, including the effects of any outcomes related thereto; (iii) the risk that disruptions from the Merger will harm the Company’s business, including current plans and operations, including during the pendency of the Merger; (iv) the ability of the Company to retain and hire key personnel; (v) potential adverse reactions or changes to business relationships resulting from the announcement or completion of the Merger; (vi) legislative, regulatory and economic developments; (vii) potential business uncertainty, including changes to existing business relationships, during the pendency of the Merger that could affect the Company’s financial performance; (viii) certain restrictions during the pendency of the Merger that may impact the Company’s ability to pursue certain business opportunities or strategic transactions; (ix) unpredictability and severity of catastrophic events, including but not limited to acts of terrorism, outbreaks of war or hostilities or the COVID-19 pandemic, as well as management’s response to any of the aforementioned factors; (x) the possibility that the Merger may be more expensive to complete than anticipated, including as a result of unexpected factors or events; (xi) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger, including in circumstances requiring the Company to pay a termination fee; (xii) those risks and uncertainties set forth under the headings “Special Note Regarding Forward Looking Statements” and “Risk Factors” in the Company’s most recent Annual Report on Form 10-K, as such risk factors may be amended, supplemented or superseded from time to time by other reports filed by the Company with the Securities and Exchange Commission from time to time, which are available via the SEC’s website at www.sec.gov; and (xiii) those risks that are described in the Definitive Proxy Statement that was filed with the SEC and available from the sources indicated below.

These risks, as well as other risks associated with the Merger, are more fully discussed in the Definitive Proxy Statement filed by the Company with the SEC in connection with the Merger. There can be no assurance that the Merger will be completed, or if it is completed, that it will close within the anticipated time period. These factors should not be construed as exhaustive and should be read in conjunction with the other forward-looking statements. The forward-looking statements relate only to events as of the date on which the statements are made. The Company does not undertake any obligation to publicly update or review any forward-looking statement except as required by law, whether as a result of new information, future developments or otherwise. If one or more of these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, our actual results may vary materially from what we may have expressed or implied by these forward-looking statements. We caution that you should not place undue reliance on any of our forward-looking statements. You should specifically consider the factors identified in this communication that could cause actual results to differ. Furthermore, new risks and uncertainties arise from time to time, and it is impossible for us to predict those events or how they may affect the Company.

This communication is being made in connection with the Merger.  In connection with the Merger, the Company filed the Definitive Proxy Statement on May 21, 2024 and certain other documents regarding the Merger with the SEC. The Definitive Proxy Statement has been mailed to stockholders of the Company. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION, STOCKHOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT FILED WITH THE SEC (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS THAT HAVE BEEN FILED OR WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY CONTAIN OR WILL CONTAIN IMPORTANT INFORMATION ABOUT THE MERGER. Stockholders may obtain, free of charge, copies of such documents filed by the Company when filed with the SEC in connection with the Merger at the SEC’s website (http://www.sec.gov). In addition, the Company’s stockholders will be able to obtain, free of charge, copies of such documents filed by the Company at the Company’s website (www.aircommunities.com). Alternatively, these documents, when available, can be obtained free of charge from the Company upon written request to the Company at 4582 South Ulster Street, Suite 1700, Denver, Colorado 80237.

The Company and certain of its directors, executive officers and other employees may be deemed to be participants in the solicitation of proxies from stockholders of the Company in connection with the Merger. Additional information regarding the identity of the participants, and their respective direct and indirect interests in the Merger, by security holdings or otherwise, are set forth in the Definitive Proxy Statement and other relevant materials filed with the SEC in connection with the Merger (if and when they become available). You may obtain free copies of these documents using the sources indicated above.