UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
September 8, 2017
Date of Report (Date of Earliest Event Reported)
DUPONT FABROS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
Maryland | 001-33748 | 20 8718331 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
401 9th Street NW, Suite 600,
Washington, D.C. 20004
(Address of Principal Executive Offices) (Zip Code)
(202) 728-0044
(Registrants Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule l4a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule l4d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule l3e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. | Entry into a Material Definitive Agreement |
On September 8, 2017, DuPont Fabros Technology, Inc. (the Company), DuPont Fabros Technology, L.P. (the Operating Partnership) and U.S. Bank National Association, as trustee (the Trustee), entered into that certain Second Supplemental Indenture (the Second Supplemental Indenture) to the Indenture, dated as of June 9, 2015, by and among the Operating Partnership, the Company, the other guarantors party thereto and the Trustee, relating to the Operating Partnerships 5.625% Senior Notes due 2023, to cure an incorrect cross reference in Section 10.04(a)(4) in the First Supplemental Indenture, dated as of June 9, 2015.
The foregoing description is qualified in its entirety by the complete terms of the Second Supplemental Indenture, which is attached as Exhibit 4.1 hereto and is incorporated by reference into this Item 1.01.
Item 5.07. | Submission of Matters to a Vote of Security Holders |
The Company held a special meeting (the Special Meeting) of stockholders at 10:00 a.m., Eastern Time, on September 13, 2017 at Market Square North, 401 9th Street NW, 10th Floor, Washington, DC 20004 to vote on the proposals set forth in the definitive joint proxy statement / prospectus dated August 15, 2017 and first mailed to the Companys stockholders on or about August 15, 2017.
1. Company Merger. At the Special Meeting, the Companys stockholders voted upon and approved a proposal (the Merger Proposal) for the Company to merge with and into Penguins REIT Sub, LLC (REIT Merger Sub), a wholly owned subsidiary of Digital Realty Trust, Inc. (DLR), pursuant to that certain Agreement and Plan of Merger (the Merger Agreement), dated as of June 8, 2017, by and among the Company, the Operating Partnership, DLR, REIT Merger Sub, Digital Realty Trust, L.P., Penguins OP Sub 2, LLC and Penguins OP Sub, LLC. The votes on this proposal were as follows:
Votes For |
Votes Against |
Abstentions |
Broker Non-Votes | |||
64,950,892 |
116,224 | 628,722 | 0 |
2. Advisory Vote on Executive Compensation. At the Special Meeting, the Companys stockholders voted upon a non-binding advisory proposal of compensation that may be paid or become payable to certain executive officers of the Company in connection with the Merger Agreement and the transactions contemplated thereby. The votes on this proposal were as follows:
Votes For |
Votes Against |
Abstentions |
Broker Non-Votes | |||
21,706,830 |
43,189,147 | 799,861 | 0 |
3. Adjournment of Special Meeting. Stockholder action on a third proposal, to approve the adjournment of the Special Meeting, if necessary or appropriate, to solicit additional proxies in favor of the Merger Proposal, was not required and no vote was taken on that proposal.
Item 9.01. | Financial Statements and Exhibits |
(d) The following exhibits are filed as part of this report:
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
DUPONT FABROS TECHNOLOGY, INC. | ||||||
September 13, 2017 | /s/ Richard A. Montfort, Jr. | |||||
Richard A. Montfort, Jr. | ||||||
General Counsel and Secretary |
Exhibit 4.1
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF SEPTEMBER 8, 2017
TO INDENTURE DATED JUNE 9, 2015, AMONG
DUPONT FABROS TECHNOLOGY, L.P., AS ISSUER,
DUPONT FABROS TECHNOLOGY, INC., AS GUARANTOR
AND
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
5.625% SENIOR NOTES DUE 2023
THIS SECOND SUPPLEMENTAL INDENTURE, entered into as of September 8, 2017 (the Second Supplemental Indenture) among DuPont Fabros Technology, L.P., a Maryland limited partnership (the Operating Partnership), DuPont Fabro Technology, Inc. (the Company), a Maryland corporation, and U.S. Bank National Association, a national banking association, as trustee (the Trustee).
RECITALS
WHEREAS, the Operating Partnership, the Guarantors party thereto and the Trustee entered into an Indenture, dated as of June 9, 2015 (the Base Indenture), as supplemented by the First Supplemental Indenture, dated as of June 9, 2015 (the First Supplemental Indenture and together with the Base Indenture, the Indenture), relating to the Operating Partnerships 5.625% Senior Notes due 2023 (the Notes); and
WHEREAS, pursuant to Section 9.02(1) of the First Supplemental Indenture, the Operating Partnership, the Company and the Trustee may amend or supplement the Indenture without notice to or the consent of any Noteholder (as defined in the First Supplemental Indenture) to cure an ambiguity, defect, omission or inconsistency in the Indenture.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally, the parties to this Second Supplemental Indenture hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. Section 10.04(a)(4) of the First Supplemental Indenture is hereby amended and restated in its entirety as follows:
(4) defeasance or discharge of the Notes, as provided in Section 8.02, Section 8.03 or Section 8.04.
Section 3. This Second Supplemental Indenture shall be governed in accordance with the laws of the State of New York.
Section 4. This Second Supplemental Indenture may be signed in various counterparts, which together will constitute one and the same instrument.
Section 5. This Second Supplemental Indenture is an amendment supplemental to the Indenture and this Second Supplemental Indenture will henceforth be read together.
Section 6. The recitals in this Second Supplemental Indenture shall be taken as statements of the Operating Partnership, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Second Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this Second Supplemental Indenture and perform its obligations hereunder.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental Indenture to be duly executed as of the date first above written.
DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership, as Issuer | ||
By: | DuPont Fabros Technology, Inc., its general partner | |
By: | /s/ Richard A. Montfort Jr. | |
Name: | Richard A. Montfort, Jr. | |
Title: | Executive Vice President, General Counsel and Secretary | |
DUPONT FABROS TECHNOLOGY, INC., a Maryland corporation, as Guarantor | ||
By: | /s/ Richard A. Montfort, Jr. | |
Name: | Richard A. Montfort, Jr. | |
Title: | Executive Vice President, General Counsel and Secretary | |
U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Richard Prokosch | |
Name: | Richard Prokosch | |
Title: | Vice President |