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SFNS > SEC Filings for SFNS > Form 8-K on 18-Nov-2013All Recent SEC Filings

Show all filings for SUMMIT FINANCIAL SERVICES GROUP INC

Form 8-K for SUMMIT FINANCIAL SERVICES GROUP INC


18-Nov-2013

Entry into a Material Definitive Agreement, Other Events, Fin


Item 1.01. Entry Into a Material Definitive Agreement.

Summit Financial Services Group, Inc. Enters into a Merger Agreement with RCS Capital Corporation

On November 16, 2013, Summit Financial Services Group, Inc. ("Summit") entered into an agreement and plan of merger (the "Merger Agreement") with RCS Capital Corporation ("RCS") and Dolphin Acquisition, LLC ("Merger Sub"), a newly formed wholly-owned subsidiary of RCS. None of Summit or its subsidiaries has a material relationship with RCS or Merger Sub and the merger will not be an affiliated transaction.

Summit is a Florida-based financial services holding company that, through its subsidiary, Summit Brokerage Services, Inc. ("SBS"), provides a broad range of securities brokerage and investment services to primarily individual investors, sells insurance products, including variable and fixed annuities and life insurance, and provides, through its registered investment advisor subsidiary, asset management and investment advisory services.

Under the Merger Agreement, Summit will merge with and into Merger Sub (the "Merger"), with Merger Sub surviving the merger as a wholly owned subsidiary of RCS. RCS expects that Summit's business, once acquired, will operate independently of RCS's wholesale broker-dealer subsidiary, Realty Capital Securities, LLC, and function as a separate business unit alongside RCS's existing operating subsidiaries.

The Merger Agreement provides that each share of common stock of Summit (excluding any dissenting shares) outstanding immediately prior to the closing will be converted into the right to receive (a) $1.2578, representing the sum of the consideration payable in the Merger by RCS, plus cash contributed by Summit (the "Closing Merger Consideration"), and (b) one non-transferable contingent value right (a "CVR") to be issued by RCS pursuant to a CVR agreement to be entered into at the closing (the CVR and the Closing Merger Consideration, collectively, the "Aggregate Merger Consideration"). The Merger Agreement also entitles the holders of such Summit shares to the pro rata portion of any tax refunds received by RCS as a result of certain net operating losses incurred by Summit with respect to its stub 2014 tax year (the "Tax Refund Amount"). The total consideration payable by RCS in the Merger (not including cash to be contributed by Summit) is $49.0 million, at least $9.8 million of which will be payable in RCS Class A common stock.

The Closing Merger Consideration will be payable in cash (approximately 80%) and RCS Class A common stock (approximately 20%), but Summit's shareholders will have the right to elect to receive additional shares of RCS Class A common stock in lieu of all or any portion of the Cash Merger Consideration payable to them in cash (other than cash contributed by Summit).

Each CVR represents, generally, the right to receive the pro rata portion of: a $4.5 million holdback remaining after deducting amounts, if any, owing to RCS if Summit does not meet certain revenue and EBITDA targets for 2013, and an additional $0.5 million holdback remaining after deducting any amounts owing to the relevant tax authorities with respect to certain taxes, if any, payable by Summit for its tax years prior to the closing; plusor minus the amount by which Summit's "normalized net capital" is greater or smaller than "target net capital" of $4.0 million.

Under the Merger Agreement, any outstanding restricted stock units of Summit that are settled in, and any stock options (granted under Summit's 2000 and 2006 Incentive Compensation Plans) and warrants to purchase, common stock of Summit, to the extent not previously vested or exercised, as applicable, will vest as of immediately prior to the closing. In addition, any stock options granted under the 2000 Plan and any warrants that are outstanding and unexercised immediately prior to the closing will not be entitled to any consideration in the Merger and will be assumed by RCS and converted into options and warrants to purchase Class A common stock of RCS, any stock options granted under the 2006 Plan that are outstanding and unexercised immediately prior to the closing will be deemed exercised on a cashless basis for the Aggregate Merger Consideration and the Tax Refund Amount with respect to the remaining underlying deemed shares of Summit common stock; and any restricted stock units will be converted into the right to receive the Aggregate Merger Consideration and the Tax Refund Amount as if such unit was a share of Summit common stock.

The parties estimate that, if no elections are made to receive additional shares of Class A common stock of RCS, and (i) no options and warrants to purchase Summit common stock are exercised in cash prior to the closing, the per-share cash portion of the Closing Merger Consideration will be $0.960 and the per-share stock portion of the Closing Merger Consideration will be $0.298, or
(ii) all options and warrants to purchase Summit common stock are exercised in cash prior to the closing, the per-share cash portion of the Closing Merger Consideration will be $1.0286 and the per-share stock portion of the Closing Merger Consideration will be $0.2292. The number of shares of Class A common stock to be delivered by RCS will be determined based upon an exchange ratio equal to the quotient of the per-share stock portion of the Closing Merger Consideration divided by the volume weighted average closing sale price per share of RCS Class A common stock for the ten consecutive trading days ending on the second trading day immediately prior to the closing.

The board of directors of RCS and Summit's board of directors (acting upon the unanimous recommendation of a special committee comprised solely of Summit's independent directors (the "Special Committee")) have unanimously approved the Merger Agreement, and the Summit board has agreed to submit the Merger Agreement to a vote of Summit's shareholders and recommended that Summit's shareholders approve the Merger. Summit has agreed, subject to certain exceptions with respect to unsolicited proposals, not to solicit or negotiate competing acquisition proposals or recommend or enter into any alternative business combinations. However, after receiving an unsolicited acquisition proposal, the Summit board may withdraw its recommendation in favor of the approval of the Merger Agreement, terminate the Merger Agreement and enter into an alternative business combination agreement if, among other conditions, the Summit board determines in good faith after consultation with its advisors that the proposal constitutes a "superior proposal" and failure to withdraw its recommendation would be inconsistent with its fiduciary duties; RCS has declined to match such proposal; and concurrently with such termination, Summit pays to RCS a termination fee in the amount of $1,400,000 and expenses up to $600,000. The Merger Agreement contains certain additional termination rights for Summit and RCS, which may require Summit to pay to RCS a termination fee and/or expenses in the amounts described above, as well as a termination right of Summit if, under the circumstances described in the Merger Agreement, at the closing RCS fails to deposit an amount of cash (not to exceed $34.2 million) sufficient to pay the cash consideration payable under the Merger Agreement to holders of Summit common stock and common stock equivalents, in which case RCS must pay to Summit a $1,000,000 termination fee.

Summit and RCS have made customary representations and warranties to one another and agreed to customary covenants in the Merger Agreement.

The completion of the Merger is subject to approval of the Merger by Summit's shareholders and by the Financial Industry Regulatory Authority, Inc. In addition, completion of the Merger is subject to satisfaction or waiver of a number of customary conditions, as well as the following: in the case of Summit, RCS depositing an amount of cash sufficient to pay the cash consideration payable under the Merger Agreement to holders of Summit common stock and common stock equivalents; in the case of RCS, subject to any elections made by Summit's shareholders, RCS not being required to pay cash in an amount in excess of $34.2 million in the aggregate and Class A common stock in an amount in excess of $9.8 million in the aggregate; the employment agreements and employment term sheets entered into with certain officers and employees of Summit at the time of the Merger Agreement being in full force and effect; in the case of Summit, the transaction payment plan adopted by Merger Sub at the time of the Merger Agreement (which provides for aggregate restrictive covenant payments of $2.8 million at the closing to certain officers and employees of Summit, as well as additional incentive compensation of $2.0 million for the achievement of performance targets for 2014) being in full force and effect; the effectiveness of a registration statement on Form S-4 with respect to the Class A common shares to be issued pursuant to the Merger and approval for listing on the New York Stock Exchange of the Class A common stock issued by RCS; and, in the case of RCS, dissenting shares representing less than 7% of the outstanding common stock of Summit, and Summit maintaining certain agreed levels of "gross dealer concessions" and "net capital." The completion of the Merger is not conditioned on antitrust clearance or receipt of any financing by RCS. The Merger is . . .



Item 8.01. Other Events.

Press Release

On November 18, 2013, RCS and Summit issued a joint press release announcing the execution of the Merger Agreement and related information, a copy of which is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.

Forward-Looking Statements

Information set forth in this Current Report on Form 8-K (including information furnished, included or incorporated by reference herein) contains "forward-looking statements" (as defined in Section 21E of the Exchange Act), which reflect Summit's expectations regarding future events. The forward-looking statements involve a number of risks, uncertainties and other factors that could cause actual results to differ materially from those contained in the forward-looking statements. Such forward-looking statements include, but are not limited to, whether and when the transactions contemplated by the Merger Agreement will be consummated, plans for the operations of RCS and Merger Sub post-closing, market and other expectations, objectives, intentions, as well as any expectations or projections with respect to RCS, Summit and Merger Sub post-closing, including regarding future dividends and market valuations, and other statements that are not historical facts.

The following additional factors, among others, could cause actual results to differ from those set forth in the forward-looking statements: the ability to obtain requisite approvals for the Merger, including, among other things, Summit shareholder approval and regulatory approval of certain changes in control of Summit's FINRA-regulated broker-dealer businesses; market volatility; unexpected costs or unexpected liabilities that may arise from the Merger, whether or not consummated; the inability to retain key personnel; the deterioration of market conditions; and future regulatory or legislative actions that could adversely affect the parties to the Merger Agreement. Additional factors that may affect future results are contained in Summit's filings with the SEC, which are available at the SEC's website at www.sec.gov. Summit disclaims any obligation to update and revise statements contained in these materials based on new information or otherwise.

Important Additional Information Filed With the SEC

RCS plans to file with the SEC a Registration Statement on Form S-4 in connection with the proposed transaction and Summit plans to file with the SEC and mail to their respective shareholders a proxy statement in connection with the proposed transaction, which will be included in RCS's Registration Statement on Form S-4 (the "Proxy Statement/Prospectus"). THE REGISTRATION STATEMENT AND
THE PROXY STATEMENT/PROSPECTUS WILL CONTAIN IMPORTANT INFORMATION ABOUT SUMMIT, RCS, THE PROPOSED TRANSACTION AND RELATED MATTERS. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE REGISTRATION STATEMENT AND THE PROXY STATEMENT/PROSPECTUS CAREFULLY WHEN THEY BECOME AVAILABLE. Investors and security holders will be able to obtain free copies of the Registration Statement and the Proxy Statement/Prospectus and other documents filed with the SEC by Summit and RCS in connection with the proposed transaction through the web site maintained by the SEC at www.sec.gov. In addition, investors and security holders will be able to obtain free copies of the Registration Statement and the Proxy Statement/Prospectus and such other documents by phone, e-mail or written request by contacting the investor relations department of Summit or RCS as follows:

Summit:

Steven C. Jacobs, CFO

Summit Financial Services Group, Inc.

sjacobs@summitbrokerage.com

Phone: (561) 338-2800

RCS:

Brian S. Block, CFO

RCS Capital Corporation

bblock@arlcap.com

Phone: (866) 904-2988

Participants in the Solicitation

Summit, RCS and their respective directors and executive officers, may be deemed to be participants in the solicitation of proxies in respect of the proposed transactions contemplated by the Merger Agreement. Information regarding Summit's directors and executive officers is contained in Summit's Form 10-K for the year ended December 31, 2012 and proxy statement dated October 8, 2012, which are filed with the SEC. Information regarding RCS's directors and executive officers is contained in RCS's prospectus filed with the SEC pursuant to Rule 424(b) (4) under the Securities Act of 1933, as amended, on June 6, 2013. A more complete description will be available in the Registration Statement and the Proxy Statement/Prospectus to be filed with the SEC.



Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.   Description

2.1*          Agreement and Plan of Merger, dated as of November 16, 2013, by and
              among RCS Capital Corporation, Dolphin Acquisition, LLC and Summit
              Financial Services Group, Inc.

10.1          Voting Agreement, dated as of November 16, 2013, by and among RCS
              Capital Corporation and Marshall Leeds

99.1          Press Release issued by Summit and RCS on November 18, 2013

* Pursuant to Item 601(b)(2) of Regulation S-K, Summit agrees to furnish supplementally a copy of any omitted exhibit or schedule to the SEC upon request

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