David Tepper, owning 9.5% of TerraForm Power (TERP), reaches out to the company with another letter demanding the fund be able to inspect the company’s books and records. Tepper and his Appaloosa Management are looking to investigate the breaches of Delaware common and statutory law and breaches of fiduciary duties perpetrated on shareholders.
Here’s the full letter:
TerraForm Power, Inc.
12500 Baltimore Avenue
Beltsville, Maryland 20705
Attention: Corporate Secretary
Re: Demand for Inspection of Books and Records
Dear Corporate Secretary:
Appaloosa Management L.P., a Delaware limited partnership (“AMLP”), is the investment adviser to the following funds:
(i) Appaloosa Investment Limited Partnership I, a Delaware limited partnership (“AILP”);
(ii) Palomino Fund Ltd., a British Virgin Islands company (“Palomino”)
(iii) Thoroughbred Fund L.P., a Delaware limited partnership (“TFLP”); and
(iv) Thoroughbred Master Ltd., a British Virgin Islands company (“TML” and collectively with AILP, Palomino and TFLP, the “Funds”).
As publicly disclosed, the Funds collectively own 7,600,000 shares, or 9.5%, of the outstanding Class A common stock, par value $0.01 per share (the “Common Stock”) of TerraForm Power, Inc. (the “Company”), in the applicable amounts set forth onSchedule A, annexed hereto and made part hereof. Enclosed with this letter as Exhibit A is a true and correct copy of documentary evidence of the Funds’ respective ownership of the Common Stock set forth on Schedule A.
Pursuant to Section 220 of the General Corporation Law of the State of Delaware (the “DGCL”), on behalf of the Funds, AMLP hereby demands that it and its attorneys, representatives and agents be given, during usual business hours, the opportunity to inspect the following books and records of the Company:
1. All minutes of meetings and written consents of the Company’s board of directors (the “Board”) or any committee thereof relating to the Company’s and/or its controlled subsidiaries’ transactions with SunEdison Inc. (“SUNE”) regarding Vivint Solar Inc. (“Vivint”), and any modifications thereto, announced on or after June 1, 2015 (the “Subject Transactions”), and all documents or other materials presented to the Board or any committee at such meetings. This shall include any minutes or written consents related to the financing of the Subject Transactions, including any purported warehouse facilities or the assumption of debt at the acquired companies.
2. Fully executed copies of all transaction documents, including any related financings, related to the Subject Transactions, which have not been publicly filed.
3. All records reflecting the analysis, if any, conducted by the Board and/or the Corporate Governance and Conflicts Committee of the Board (the “Committee”) related to the Subject Transactions, including, but not limited to, any valuation of the renewable assets constituting Vivint’s rooftop solar portfolio (the “Rooftop Assets”) to be acquired by TerraForm Power, LLC, a controlled subsidiary of the Company (“Terra LLC”).
4. All records reflecting the Board’s and/or the Committee’s consideration, discussion and acceptance of the terms of that certain agreement, dated as of July 20, 2015 and amended as of December 9, 2015, by and among SUNE, SEV Merger Sub Inc., a wholly-owned subsidiary of SUNE, and Terra LLC (the “Interim Agreement”), particularly as it relates to the decision to enter into the take/pay arrangement with SUNE and its subsidiaries for the sale of residential solar systems (the “Solar Residential Systems”), rather than a right of first refusal (“ROFR”) pursuant to standard industry custom and practice.
5. All bids, term sheets, letters of intent or other offers received by or on behalf of the Company or any of the Company’s subsidiaries regarding the purchase of Rooftop Assets or Solar Residential Systems (collectively, the “Asset Bids”).
6. All minutes of meetings of the Board or any committee thereof at which the Asset Bids were discussed and all documents or other materials presented to the Board or any committee thereof (including without limitation, the Committee) at such meetings.
7. All records reflecting the Company’s efforts to date, if any, to seek competitive offers for the purchase of the Rooftop Assets and Solar Residential Systems.
8. All minutes of meetings and written consents of the Board or any committee thereof at which Cleary Gottlieb Steen & Hamilton LLP (“Cleary”) was present and relating in any way to transactions with SUNE or Vivint.
9. All minutes from the meeting of the Board held on November 20, 2015 and any and all documents or other materials relating thereto, including any correspondence prior to or after such meeting.
10. All minutes of meetings and written consents of the Board or any committee thereof relating to the departure of Cleary as counsel to the Committee and its replacement with Greenberg Traurig LLP and all documents or other materials presented to the Board or any committee at such meetings.
11. Complete copies of all of the Company’s current directors’ and officers’ liability (or equivalent) insurance policies, binders, supplements and agreements.
12. Complete copies of the executed indemnification agreements between the Company and each of the members of the Board and the Company’s officers.
13. Copies of the engagement letters and retention agreements between the Committee and each of Cleary and Greenberg Traurig LLP, and between the Company and each of the advisors who rendered services to the Company, the Board and the Committee in connection with the Subject Transactions.
AMLP also demands the right to make copies or extracts from the foregoing.
AMLP further demands the right to inspect all information referred to in this letter that is within the legal possession, custody or control of the Company, including, but not limited to, such information that is within the possession, custody or control of the Company’s subsidiaries or the Company’s outside legal counsel, accountants, auditors, financial advisors and other agents, representatives and advisors.
AMLP demands that all modifications, additions or deletions to any and all information referred to above be immediately furnished to AMLP as such modifications, additions or deletions become available to the Company or its agents, representatives or advisors.