Transaction Valuation(1): | Amount of Filing Fee(2)(3): | ||||
$5,112,900 |
$364.55 | ||||
(1) | Estimated solely for the purpose of calculating the amount of the filing fee in accordance with the Securities Exchange Act of 1934 based on the product of (i) $1.71 (the average of the high and low prices of NovaStar Financial, Inc.s 8.90% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, as quoted by Pink OTC Markets inter-dealer quotation service on December 9, 2010) and (ii) 2,990,000 (the maximum number of shares of NovaStar Financial, Inc.s 8.90% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share, subject to the transaction reported hereby). | |
(2) | The amount of the filing fee calculated in accordance with the Securities Exchange Act of 1934, as amended, equals $71.30 for each $1,000,000 of value. The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934. | |
(3) | The filing fee was previously paid. | |
þ | Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing. |
Amount previously paid:
|
$248.83 | |
Filing Party:
|
NovaStar Financial, Inc. | |
Form or registration no.:
|
Form S-4 | |
Date Filed:
|
December 10, 2010 |
þ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
o | third-party tender offer subject to Rule 14d-1. | |
þ | issuer tender offer subject to Rule 13e-4. | |
þ | going-private transaction subject to Rule 13e-3. | |
o | amendment to Schedule 13D under Rule 13d-2. |
(a) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary is incorporated herein by reference. | ||
(b) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary and The Series C Offer and Consent SolicitationGeneral is incorporated herein by reference. The incorporated information called for by this item is current as of December 10, 2010. | ||
(c) | In January 2004, our registration statement for our initial public offering of the of 8.90% Series C Cumulative Redeemable Preferred Stock, par value $0.01 per share (the Series C Preferred Stock), became effective and the Series C Preferred Stock commenced trading on the New York Stock Exchange (the NYSE). In January 2008, the Series C Preferred Stock was delisted from the NYSE and is currently quoted by Pink OTC Markets inter-dealer quotation service as an OTCQB security under the symbol NOVSP. |
2008 | High | Low | ||||||
First Quarter |
$ | 4.75 | $ | 1.16 | ||||
Second Quarter |
4.90 | 2.01 | ||||||
Third Quarter |
3.25 | 0.81 | ||||||
Fourth Quarter |
2.70 | 0.40 |
2009 | High | Low | ||||||
First Quarter |
$ | 2.00 | $ | 0.66 | ||||
Second Quarter |
3.25 | 1.50 | ||||||
Third Quarter |
3.22 | 1.62 | ||||||
Fourth Quarter |
2.80 | 1.50 |
2010 | High | Low | ||||||
First Quarter |
$ | 2.05 | $ | 1.55 | ||||
Second Quarter |
3.75 | 1.55 | ||||||
Third Quarter |
1.90 | 1.10 | ||||||
Fourth Quarter (through December 9, 2010) |
2.15 | 1.51 |
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(a) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary and Directors, Executive Officers and Control Persons is incorporated herein by reference. |
(a)(1)(i) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationGeneral is incorporated herein by reference. | ||
(a)(1)(ii) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationGeneral is incorporated herein by reference | ||
(a)(1)(iii) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationGeneral is incorporated herein by reference. | ||
(a)(i)(iv) | Not applicable. | ||
(a)(i)(v) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationExtension, Termination and Amendment is incorporated herein by reference. | ||
(a)(i)(vi) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationWithdrawal Rights is incorporated herein by reference. | ||
(a)(i)(vii) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationProcedure for Tendering Shares and Notice of Guaranteed Delivery and Withdrawal Rights is incorporated herein by reference. | ||
(a)(i)(viii) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationExchange of Shares; Offer Consideration is incorporated herein by reference. | ||
(a)(i)(ix) | Not applicable. | ||
(a)(i)(x) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationDifferences in Rights of Our Common Stock and Series C Preferred Stock is incorporated herein by reference. | ||
(a)(i)(xi) | Not applicable. | ||
(a)(i)(xii) | The information set forth in the Prospectus under Material United States Federal Income Tax Considerations is incorporated herein by reference. | ||
(a)(2)(i)-(a)(2)(vii) Not applicable. | |||
(b) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offerand Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and Transactions with the Series C Directors is incorporated herein by reference. |
(e) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer,Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and Transactions with the Series D Holders and Agreements and Transactions with the Series C Directors is incorporated herein by reference. |
2
(a) | The information set forth in the Prospectus under Background of the Series C Offer and Consent Solicitation is incorporated herein by reference. | ||
(b) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationGeneral and Consequences for Failure to Participate is incorporated herein by reference. | ||
(c)(1) | None. | ||
(c)(2) | None. | ||
(c)(3) | The information set forth in the Prospectus under Background of the Series C Offer and Consent Solicitation and Capitalization is incorporated herein by reference. | ||
(c)(4) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest in Certain Persons in the Series C Offer and Directors, Executive Officers and Control Persons is incorporated herein by reference. | ||
(c)(5) | None. | ||
(c)(6) | None. | ||
(c)(7) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationEligible for Termination of Registration under the Exchange Act is incorporated herein by reference. | ||
(c)(8) | None. | ||
(c)(9) | The information set forth in the Prospectus under Background of the Series C Offer and Consent Solicitation, The Series C Offer and Consent SolicitationConditions of the Series C Offer and Consent Solicitation and Capitalization is incorporated herein by reference. The Board has discussed the possibility of enacting a shareholder rights plan in the future as an additional measure of protection for the Companys NOLs. | ||
(c)(10) | The information set forth in the Prospectus under The Special MeetingReasons for the Special Meeting and Consideration of the Proposals, Proposal 4 Articles Amendment to Preserve the Companys Net Operating Loss Carryforwards and Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. |
(a) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationSource of Funds is incorporated herein by reference. | ||
(b) | None. | ||
(d) | None. |
(a) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest in Certain Persons in the Series C Offer is incorporated herein by reference. | ||
(b) | None. |
(a) | None. |
(a)(1) | The financial statements set forth in the Prospectus, beginning on page F-5 thereof, are incorporated herein by reference. | ||
(a)(2) | The financial statements set forth in the Prospectus, beginning on page F-5 thereof, are incorporated herein by reference. | ||
(a)(3) | As a smaller reporting company, the Company is not required to present this information. |
3
(a)(4) | The information set for the in the Prospectus under Summary Historical and Unaudited Pro Forma Financial Information is incorporated herein by reference. | ||
(b)(1)(3) | As a smaller reporting company, the Company is not required to present this information. Further, this pro forma financial information is not material to the Offer. However, the information set forth in the Prospectus under Summary Historical and Pro Forma Financial Information is incorporated herein by reference and contains certain information called for in this Item. |
(a)(1) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and Transactions with the Series D Holders and Agreements and Transactions with the Series C Directors is incorporated herein by reference. | ||
(a)(2) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationAppraisal Rights and the Right to Petition for Fair Value is incorporated herein by reference. | ||
(a)(3) | Not applicable. | ||
(a)(4) | Not applicable. | ||
(a)(5) | None. | ||
(b) | None. |
Exhibit No. | Description | |
(a)(1)(A) | Proxy
Statement/Consent Solicitation/Prospectus, dated
[], 2010 (the Prospectus),
filed as part of the Companys Registration Statement on Form
S-4 (Reg. No.
333-171115), filed on December
10, 2010. |
|
(a)(1)(B) | Letter of Transmittal.* |
|
(a)(1)(C) | Notice of Guaranteed Delivery.* |
|
(a)(4) | The Prospectus (see Exhibit (a)(1)(A)). |
|
(a)(5) | Articles
of Amendment and Restatement (included as Appendix A to the
Prospectus; see Exhibit (a)(1)(A)). |
|
(d)(1) | Voting Agreement, dated December 10, 2010, between the Company and Howard M. Amster and
Barry A. Igdaloff. |
|
(d)(2) | Exchange Agreement, dated December 10, 2010, between the Company and the holders of
NovaStar Financials 9.00% Series D1 Mandatory Convertible Preferred Stock, par value $0.01
per share. |
|
(h) | Tax Opinion of Bryan Cave LLP.* |
|
|
||
* To be filed by amendment. |
(d) | The information set forth in the Prospectus under Description of SecuritiesSeries C Preferred Stock and Background of the Series C Offer and Consent Solicitation is incorporated herein by reference. | ||
(e) | None. | ||
(f) | None. |
Item 1003(b) and (c) of Regulation M-A |
(b) | None. |
4
(c) | The information set forth in the Prospectus under Directors, Executive Officers and Control Persons is incorporated herein by reference. No person to which this Item applies was convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors), nor has any such person been a party to a judicial or administrative proceeding during the past five years (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining the person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of federal or state securities laws. All persons to which this Item applies are U.S. citizens. |
(c) | None. | ||
(d) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationAppraisal Rights and the Right to Petition for Fair Value is incorporated herein by reference. | ||
(e) | None. | ||
(f) | The Common Stock offered as part of the Series C Offer when issued will be quoted by Pink OTC Markets inter-dealer quotation service as a OCTQB security under the symbol NOVS. |
(a)(1)
|
None. | |
(a)(2)
|
The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and under Review and Approval of Transaction with Related Parties; Related Party Transactions is incorporated herein by reference. | |
(b)(1)
|
None. | |
(b)(2)
|
None. | |
(b)(3)
|
On April 26, 2009, NovaStar Financial, Inc. entered into a Securities Purchase Agreement (the Purchase Agreement) with Advent Financial Services, LLC (Advent) and Mark A. Ernst to acquire 70% of the fully diluted membership interests in Advent in exchange for an initial payment of $2,000,000 and, upon Advents achievement of certain financial metrics for the twelve months ended on April 30, 2010, an additional payment of $2,000,000. Because these financial metrics were not achieved by April 30, 2010, the additional payment was not made by the Company. The Purchase Agreement required the parties to make certain representations, warranties, covenants and contained other closing conditions. On May 15, 2009, the closing conditions set forth in the Purchase Agreement were satisfied and the parties thereto closed the transaction. | |
On November 4, 2010, StreetLinks National Appraisal Services LLC, an 88%-owned subsidiary of the Company, completed the acquisition of 51% of Corvisa LLC (Corvisa). Corvisa is a technology company that develops and markets its software products to mortgage lenders. The purchase price was comprised of $1.5 million of cash, plus contingent consideration related to an earn-out opportunity based on future net income. The amount of the future payments that the Company could be required to make under the earn-out opportunity is $0.6 million. | ||
(b)(4)
|
The information set forth in the Prospectus under Background of the Series C Offer and Consent Solicitation and Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and Transactions with the Series D Holders is incorporated herein by reference. | |
(b)(5)
|
The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and under Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and Transactions with the Series C Directors is incorporated herein by reference. | |
(b)(6)
|
None. | |
(c)
|
The information set forth in the Prospectus under Background of the Series C Offer and Consent Solicitation, Review and Approval of Transaction with Related Parties; Related Party TransactionsAgreements and |
5
Transactions with the Series D Holders and Agreements and Transactions with the Series C Directors is incorporated herein by reference. | ||
(e) |
The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and under Review and Approval of Transaction with Related Parties; Related Party TransactionsLoan to Mr. Anderson, Agreements and Transactions with the Series D Holders and Agreements and Transactions with the Series C Directors is incorporated herein by reference. |
(a) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary and Background of the Series C Offer and Consent Solicitation is incorporated herein by reference. | ||
(b) | None. | ||
(c) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary and Background of the Series C Offer and Consent Solicitation is incorporated herein by reference. | ||
(d) | The information set forth in the Prospectus under The Series C Offer and Consent Solicitation Summary, Background of the Series C Offer and Consent SolicitationBackground of the Series C Offer and Consent Solicitation, Conclusions of the Board of Directors of the Company, The Series C Offer and Consent SolicitationAppraisal Rights and the Right to Petition for Fair Value and Material United States Federal Income Tax Consequences is incorporated herein by reference. |
(a) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. | ||
(b) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. | ||
(c) | The Offer is not structured so that approval of at least a majority of unaffiliated Company shareholders is required. Information set forth in the Prospectus under The Special MeetingRecord Date and Voting Rights and Quorum and Votes Required for Approval of Proposals is incorporated herein by reference. | ||
(d) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is Incorporated herein by reference. The board of directors, including both the employee and non-employee directors, engaged Stifel, Nicolaus & Company, Incorporated, (Stifel) who was unaffiliated with the Company, to assist the board of directors in its analysis of the potential transaction, including whether or not the Offer is fair to the unaffiliated shareholders of the Company. A description of the opinion from Stifel will be incorporated into the applicable registration statement of the company on Form S-4 by amendment thereto, and that information will be incorporated herein by amendment. | ||
(e) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. | ||
(f) | Not applicable. |
(a) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. A description of the opinion from Stifel will be incorporated into the applicable registration statement of the company on Form S-4 by amendment thereto, and that information will be incorporated herein by amendment. | ||
(b) | The information set forth in the Prospectus under Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. A description of the opinion from Stifel will be incorporated into the applicable registration statement of the company on Form S-4 by amendment thereto, and that information will be incorporated herein by amendment. No material relationship existed during the past two years or is mutually understood to be contemplated, nor was any compensation received or to be received as a result of the relationship between (i) Stifel, Nicolaus & Company, Incorporated (acting as the financial advisor), its affiliates or unaffiliated representatives and (ii) the Company or its affiliates. |
6
(c) | Copies of the opinion and presentation from Stifel will be filed as Exhibits by amendment hereto and will be available for inspection and copying at the Companys principal executive offices located at 2114 Central Street, Suite 600, Kansas City, Missouri 64108, during regular business hours by any stockholder or stockholder representative who has been so designated in writing. |
(c) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationFees and Expenses is incorporated herein by reference. |
(d) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and The Special MeetingVoting of Proxies is incorporated herein by reference. | ||
(e) | The information set forth in the Prospectus under The Series C Offer and Consent SolicitationInterest of Certain Persons in the Series C Offer and Background of the Series C Offer and Consent SolicitationConclusions of the Board of Directors of the Company is incorporated herein by reference. |
(b) | None. |
Exhibit No. | Description | |||
(c)(1)
|
Fairness Opinion provided by Stifel, Nicolaus & Company, Incorporated (Stifel) to the Board of Directors of the Company on December 10, 2010.* | |||
(c)(2)
|
Presentation of Stifel to the Board of the Company, dated December 10, 2010, related to the Series C Offer.* | |||
(f)
|
Section 2-602(a) and Sections 3-201 through 3-213 of the Maryland General Corporation Law. | |||
* To be filed by amendment. |
7
Novstar Financial, Inc. |
||||
/s/ W. Lance Anderson | ||||
W. Lance Anderson | ||||
Chairman and Chief Executive Officer | ||||
8
Exhibit No. | Description | |||
(a)(1)(A) |
Proxy Statement/Consent Solicitation/Prospectus, dated [], 2010 (the Prospectus), filed as part of the Companys Registration Statement on Form S-4 (Reg. No. 333-171115), filed December 10, 2010 | |||
(a)(1)(B) |
Letter of Transmittal.* | |||
(a)(1)(C) |
Notice of Guaranteed Delivery.* | |||
(a)(4) |
The Prospectus (see Exhibit (a)(1)(A)). | |||
(a)(5) |
Articles of Amendment and Restatement (included as Appendix A to the Prospectus; see Exhibit (a)(1)(A)). | |||
(c)(1) |
Fairness Opinion provided by Stifel, Nicolaus & Company, Incorporated (Stifel) to the Board of Directors of the Company on December 10, 2010.* | |||
(c)(2) |
Presentation of Stifel to the Board of the Company, dated December 10, 2010, related to the Series C Offer.* | |||
(d)(1) |
Voting Agreement, dated December 10, 2010, between the Company and Howard M. Amster and Barry A. Igdaloff. | |||
(d)(2) |
Exchange Agreement, dated December 10, 2010, between the Company and the holders of NovaStar Financials 9.00% Series D1 Mandatory Convertible Preferred Stock, par value $0.01 per share. | |||
(f) |
Section 2-602(a) and Sections 3-201 through 3-213 of the Maryland General Corporation Law. | |||
(h) |
Tax Opinion of Bryan Cave LLP.* | |||
* To be filed by amendment. |
9