Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
The board of directors of the Company (the "Company Board") has unanimously (i) approved, adopted and declared advisable the Merger Agreement and the Merger and the consummation by the Company of the transactions contemplated thereby, including the Merger (the "Transactions"), (ii) authorized and approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation of the Transactions, (iii) determined that the Transactions, are fair to and in the best interests of the Company and its stockholders, (iv) directed that a proposal to adopt the Merger Agreement be submitted to a vote at a meeting of the Company's stockholders and (v) recommended that the Company's stockholders vote for the adoption and approval of the Merger Agreement.
At the effective time of the Merger (the "Effective Time"), and by virtue of the
Merger, each share of common stock, par value
If the Merger is consummated, the Shares will be delisted from The Nasdaq Global Market and deregistered under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), at or after the Effective Time.
Treatment of Company Equity Compensation
The Merger Agreement provides that, prior to the Effective Time, the Company may, in its discretion, accelerate the exercisability of any outstanding option to purchase Shares of the Company (a "Company Option") or stock appreciation rights (a "Company SAR"). At the Effective Time:
(i) each Company Option or Company SAR, as applicable, that is then outstanding and unexercised that has a per Share exercise price or strike price per Share, that is less than the Merger Consideration (an "In the Money Option" and an "In the Money SAR", respectively) will be cancelled and the holder thereof will be entitled to receive a cash payment equal to (i) the excess, if any, of (A) the Merger Consideration over (B) the exercise price payable per Share under such In the Money Option or In the Money SAR, as applicable, multiplied by (ii) the total number of Shares subject to such In the Money Option or In the Money SAR, as applicable, immediately prior to the Effective Time (without regard to vesting); (ii) each Company Option or Company SAR that is not an In the Money Option nor an In the Money SAR, as applicable, will be cancelled without any consideration;
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(iii) each then outstanding Share of Company Restricted Stock that vests solely on the passage of time, whether or not vested, will be cancelled and the holder thereof will be entitled to receive a cash payment equal to the Merger Consideration with respect to each Share of time-vested Company Restricted Stock, whether or not vested, held by such holder (without regard to vesting); (iv) each then outstanding Share of Company Restricted Stock that vests based on achievement of strategic performance metrics (the "Strategic PSAs"), whether or not vested, will be cancelled and the holder thereof will be entitled to receive a cash payment equal to (i) the product of (A) the target number of Shares of Strategic PSAs granted to the holder, multiplied by (B) 100% (such product, the "Earned Strategic PSAs"), multiplied by (ii) the Merger Consideration (without regard to vesting). Promptly following the Effective Time, Parent will calculate the cumulative shareholder return through the closing date of the Merger (the "Relative TSR Performance") for each of the Company and each member of the comparator group companies as set forth in terms of the award agreement for each then outstanding Share of Company Restricted Stock that vests based on achievement of a relative total shareholder return metric (the "rTSR PSAs"), and will pay the holders of the rTSR PSAs in accordance with the Relative TSR Performance and the terms of each rTSR PSA; and (v) each then outstanding Company restricted stock unit ("Company RSU"), whether or not vested, will be cancelled and the holder thereof will be entitled to receive a cash payment equal to the product of (i) the Merger Consideration and (ii) the total number of Shares subject to such Company RSU (without regard to vesting).
Conditions Precedent to the Merger
The consummation of the Merger (the "Closing") is subject to certain conditions, including, but not limited to, (i) the approval and adoption of the Merger Agreement and the Merger by a majority of the outstanding Shares of the Company voting to approve and adopt the Merger Agreement and the Merger at the stockholder meeting (the "Company Stockholder Approval"), (ii) the absence of any temporary restraining order, preliminary or permanent injunction or final judgment, or law, regulation, or order promulgated, enacted, issued or deemed applicable to the Merger, by any governmental entity in any jurisdiction in which Parent or the Company has material business operations that prohibits or otherwise makes illegal the consummation of the Merger and (iii) the expiration or termination of any waiting period (or any extension thereof) applicable to the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder. The parties expect the transaction to close following the receipt of all required regulatory and antitrust approvals and the satisfaction or waiver of the other Closing conditions.
Non-Solicitation
During the period from the date of the Merger Agreement until the earlier of the Effective Time (as defined in the Merger Agreement) and the termination of the Merger Agreement in accordance with the Merger Agreement, the Company has agreed not to (i) directly or indirectly solicit, initiate or knowingly facilitate or encourage (including by way of furnishing non-public information) any inquiries regarding, or the making of any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal (as defined in the Merger Agreement), (ii) engage in, continue or otherwise participate in any discussions or negotiations regarding, or furnish to any other person any non-public information in connection with, or for the purpose of knowingly encouraging, or facilitating, an Acquisition Proposal, or (iii) enter into any letter of intent, acquisition agreement, agreement in principle or similar agreement with respect to an Acquisition Proposal or any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal. Notwithstanding these restrictions, the Company may under certain circumstances provide, pursuant to an
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acceptable confidentiality agreement, engage in or otherwise participate in discussions or negotiations with third parties with respect to a bona fide Acquisition Proposal that the Company Board has determined in good faith, after consultation with its financial advisors and outside legal counsel, could reasonably be expected to lead to a Superior Offer (as defined in the Merger Agreement).
Termination and Fees
The Merger Agreement contains customary termination rights for each the Company
and Parent, including, among others, (a) if the consummation of the Merger does
not occur on or before
The Company is required to pay Parent a termination fee of
Other Terms of the Merger Agreement
The Merger Agreement includes representations, warranties and covenants of the parties customary for a transaction of this nature. From the date of the Merger Agreement until the earlier of the Effective Time and the termination of the Merger Agreement, the Company has agreed, subject to certain exceptions, (i) to use commercially reasonable efforts to conduct its business, in all material respects, in the ordinary course, (ii) to convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval and, subject to certain customary exceptions, for the Company Board to recommend that the stockholders adopt the Merger Agreement and (iii) to certain other customary operating covenants, as set forth more fully in the Merger Agreement.
The foregoing description of the Merger Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached as Exhibit 2.1 to this report and incorporated by reference herein.
The Merger Agreement and the foregoing description of such agreement have been included to provide investors and stockholders with information regarding the terms of such agreement. The representations and warranties contained in the Merger Agreement are qualified by information in confidential disclosure schedules delivered by the Company to Parent and Merger Sub in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as material to stockholders, or may have been used for the purpose of allocating risk between the parties to the Merger Agreement. Accordingly, the representations and warranties in the Merger Agreement should not be relied on by any persons as characterizations of the actual state of facts and circumstances of the Company, Parent or Merger Sub, as applicable, at the time they were made and
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investors should consider the information in the Merger Agreement in conjunction
with the entirety of the factual disclosure about the Company or Parent and/or
Merger Sub, as applicable, in their respective public reports filed with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
2.1* Agreement and Plan of Merger, dated as ofAugust 22, 2022 , by and among the Company, Parent and Merger Sub. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Certain exhibits and schedules have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
of any omitted exhibits or schedules upon request.
Cautionary Statement Regarding Forward-Looking Statements
This communication and any documents referred to in this communication contain
certain forward-looking statements within the meaning of the federal securities
laws with respect to the proposed transaction between Parent and the Company,
including, but not limited to, statements regarding the expected benefits of the
proposed transaction and the anticipated timing of the proposed transaction,
strategies, objectives and the products and markets of each company. These
forward-looking statements generally are identified by the words "believe,"
"predict," "target," "contemplate," "potential," "project," "expect,"
"anticipate," "estimate," "intend," "strategy," "future," "opportunity," "plan,"
"may," "should," "will," "would," "could," "will be," "will continue," "will
likely result," and similar expressions. Forward-looking statements are
predictions, projections and other statements about future events that are based
on current expectations and assumptions and, as a result, are subject to risks
and uncertainties. Many factors could cause actual future events to differ
materially from the forward-looking statements in this communication, including
but not limited to: (i) the risk that the proposed transaction may not be
completed in a timely manner or at all, (ii) the failure to satisfy the
conditions to the consummation of the proposed transaction, including the
adoption of the Merger Agreement by the stockholders of the Company and the
receipt of certain governmental and regulatory approvals, (iii) the occurrence
of any event, change or other circumstance that could give rise to the
termination of the Merger Agreement, (iv) the effect of the announcement or
pendency of the proposed transaction on the Company's business relationships,
operating results, and business generally, (v) risks that the proposed
transaction disrupts current plans and operations of the Company or Parent and
potential difficulties in the Company employee retention as a result of the
proposed transaction, (vi) risks related to diverting management's attention
from the Company's ongoing business operations, and (vii) the outcome of any
legal proceedings that may be instituted against Parent or against the Company
related to the Merger Agreement or the proposed transaction. The risks and
uncertainties may be amplified by economic, market, business or geopolitical
conditions or competition, or changes in such conditions, negatively affecting
the Company's business, operations and financial performance. The foregoing list
of factors is not exhaustive. You should carefully consider the foregoing
factors and the other risks and uncertainties that affect the Company's business
as described in the "Risk Factors" section of the Company's Annual Report on
Form 10-K, Quarterly Reports on Form 10-Q and other documents filed from time to
time with the
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not to put undue reliance on forward-looking statements, and the Company assumes no obligation to, and does not intend to, update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, unless required by law.
Additional Information and Where to Find It
In connection with the proposed transaction, the Company will be filing
documents with the
No Offer or Solicitation
This communication is for informational purposes only and is not intended to and does not constitute, or form part of, an offer, invitation or the solicitation of an offer or invitation to purchase, otherwise acquire, subscribe for, sell or otherwise dispose of any securities, or the solicitation of any vote or approval in any jurisdiction, pursuant to the proposed transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
Participants in the Solicitation
The Company and certain of its directors, executive officers and employees may
be deemed to be participants in the solicitation of proxies in connection with
the proposed transaction. Company stockholders may obtain additional information
regarding the direct and indirect interests of the participants in the
solicitation of proxies in connection with the proposed transaction, including
the interests of the Company directors and executive officers in the
transaction, which may be different than those of the Company stockholders
generally, by reading the definitive proxy statement that will be filed with the
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