Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the terms of the Merger Agreement, at the effective time of the
Merger (the "Effective Time") and as a result of the Merger, each share of
common stock of ARA issued and outstanding immediately prior to the Effective
Time (other than (i) shares owned by Parent, Merger Sub or any other direct or
indirect wholly owned subsidiary of Parent immediately prior to the Effective
Time and shares owned by ARA, including shares held in treasury by ARA, and in
each case not held on behalf of third parties, and (ii) shares as to which the
holders thereof have properly demanded appraisal with respect thereto under
The consummation of the Merger is subject to customary closing conditions, including, among others, the following conditions to the obligations of either party: (i) the adoption of the Merger Agreement by the holders of a majority of ARA's outstanding shares of common stock; (ii) the absence of any applicable law or governmental order prohibiting, restraining or enjoining the consummation of the Merger; (iii) the expiration or termination of any applicable waiting period (and extension thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and receipt of any required approvals thereunder; (iv) the accuracy of the other party's representations and warranties in the Merger Agreement, subject to customary exceptions; and (v) the other party's performance and compliance with its covenants and obligations under the Merger Agreement in all material respects. Furthermore, the consummation of the Merger is subject to the following additional conditions to the obligations of Parent and Merger Sub: (i) the absence of a "Material Adverse Effect" (as defined in the Merger Agreement) with respect to ARA and its subsidiaries, taken as a whole, and (ii) the receipt of certain specified healthcare regulatory approvals.
The Merger Agreement contains customary representations, warranties and
covenants, including covenants obligating ARA to conduct its business in the
ordinary course and not engage in certain specified transactions or activities
without Parent's prior consent. In addition, the Merger Agreement obligates ARA
to call and hold a meeting of its stockholders for the purpose of adopting the
Merger Agreement and, subject to certain exceptions, requires the ARA Board to
recommend to the ARA stockholders that they vote in favor of the adoption of the
Merger Agreement and approval of the Merger (and not withdraw, rescind or
materially adversely change or qualify such recommendation). However, subject to
the satisfaction of certain terms and conditions, ARA and the ARA Board, as
applicable, are permitted to take certain actions which may, as more fully
described in the Merger Agreement, include changing the ARA Board's
recommendation and entering into a definitive agreement with respect to a
Superior Proposal (as defined in the Merger Agreement) if, among other things,
the ARA Board (or a duly authorized committee thereof) has determined after
consultation with its outside legal counsel and financial advisors that the
failure to take such action would be reasonably likely to be inconsistent with
its fiduciary duties under applicable law. The Merger Agreement also contains a
"go-shop" provision pursuant to which ARA retains the right to initiate,
solicit, facilitate and encourage any inquiry or acquisition proposal from third
parties and engage in discussions and negotiations with respect to such
alternative acquisition proposals through
From the No-Shop Period Start Date until the Effective Time, ARA has agreed not to initiate, solicit, knowingly facilitate or knowingly encourage any inquiries or discussions with respect to, or the making of, any proposal or offer that constitutes or would be reasonably likely to result in an Acquisition Proposal (as defined in the Merger Agreement), or take certain other restricted actions in connection therewith. Notwithstanding the foregoing, if ARA receives a bona fide Acquisition Proposal that did not result from a material breach of the non-solicitation provisions of the Merger Agreement that the ARA Board (or a duly authorized committee thereof) determines in good faith, after consultation with its financial advisors and outside legal counsel, constitutes a Superior Proposal, ARA may take certain actions to participate in discussions and negotiations and furnish information with respect to such Acquisition Proposal, after providing written notice to Parent of such determination.
The Merger Agreement also contains certain termination rights for ARA and
Parent, including the right of ARA to terminate the Merger Agreement to accept a
Superior Proposal after complying with certain requirements. In addition, either
party may terminate the Merger Agreement if the Merger is not consummated on or
before
Parent has obtained financing commitments for the purpose of financing the
transactions contemplated by the Merger Agreement and paying related fees and
expenses (the "Financing").
This summary of the principal terms of the Merger Agreement and the copy of the
Merger Agreement filed as an exhibit to this report are intended to provide
information regarding the terms of the Merger Agreement and are not intended to
modify or supplement any factual disclosures about ARA in its public reports
filed with the
Item 7.01 Regulation FD Disclosure.
On
As provided in General Instruction B.2 of Form 8-K, the information in this Item 7.01 and the exhibit contained in this report shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall this item or the exhibit be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such a filing. --------------------------------------------------------------------------------
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 2.1* Agreement and Plan of Merger, dated as ofOctober 1, 2020 , by and amongIRC Superman Midco, LLC ,Superman Merger Sub, Inc. andAmerican Renal Associates Holdings, Inc. 10.1 Voting and Support Agreement, dated as ofOctober 1, 2020 , by and amongIRC Superman Midco, LLC , the stockholders ofAmerican Renal Associates Holdings, Inc. ("ARA") party thereto and solely for purposes of Sections 8 and 21 therein, ARA. 99.1 Press release, datedOctober 2, 2020 104 Cover Page Interactive Data File (embedded within the Inline XBRL document and contained in Exhibit 101).
*The schedules to the Agreement and Plan of Merger have been omitted from this
filing pursuant to Item 601(a)(5) of Regulation S-K. ARA will furnish copies of
any such schedules to the
* * *
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Additional Information and Where to Find It
This communication relates to the proposed merger (the "Merger") of
This communication may be deemed solicitation material in respect of the Merger.
This communication does not constitute a solicitation of any vote or approval.
In connection with the proposed merger, ARA plans to file with the
Participants in the Solicitation
ARA and its directors, executive officers and certain employees and other
persons may be deemed to be participants in the solicitation of proxies from
ARA's stockholders in connection with the proposed merger. Security holders may
obtain information regarding the names, affiliations and interests of ARA's
directors and executive officers in ARA's Annual Report on Form 10-K for the
fiscal year ended
Cautionary Statement Regarding Forward-Looking Statements
This communication contains certain information, including financial estimates and statements as to, among other things, the expected timing, completion and effects of the proposed merger between ARA and Parent, which may constitute forward-looking statements within the meaning of the "safe harbor" provisions of the Private Securities Litigation Reform Act of 1995. These statements are subject to risks and uncertainties, and actual results may materially differ. All statements other than statements of historical fact or relating to present facts or current conditions included in this communication are forward-looking statements. Such forward-looking statements include, among others, ARA's current expectations and projections relating to its financial condition, results of operations, plans, objectives, future performance and business. You can identify forward-looking statements by the fact that they do not relate strictly to historical or current facts. These statements may include words such as "anticipate," "estimate," "expect," "project," "seek," "plan," "intend," "believe," "will," "may," "could," "continue," "likely," "should" and other similar words.
The forward-looking statements contained in this communication, including
without limitation statements regarding the anticipated benefits and effects of
the anticipated merger of ARA and Parent, are based on assumptions that ARA has
made in light of its industry experience and its perceptions of historical
trends, current conditions, expected future developments and other factors that
ARA believes are appropriate under the circumstances. These statements are not
guarantees of performance or results. These assumptions and ARA's future
performance or results involve risks and uncertainties, many of which are beyond
ARA's control. Such risks and uncertainties include, among others, the inability
to consummate the Merger within the anticipated time period, or at all, due to
any reason, including the failure to obtain required regulatory approvals or the
failure to satisfy the other conditions to the consummation of the Merger; the
failure by Parent or Merger Sub to obtain the necessary debt and equity
financing arrangements set forth in the commitment letters received in
connection with the Merger; the risk that the Merger Agreement may be terminated
in circumstances requiring ARA to pay a termination fee; the risk that the
Merger disrupts ARA's current plans and operations or diverts management's
attention from its ongoing business; the effect of the announcement of the
Merger on the ability of ARA to retain and hire key personnel and maintain
relationships with its customers, suppliers, physician partners and others with
whom it does business; the effect of the announcement of the Merger on ARA's
operating results and business generally; the amount of costs, fees and expenses
related to the Merger; the risk that ARA's stock price may decline significantly
if the Merger is not consummated; the nature, cost and outcome of any litigation
and other legal proceedings, including any such proceedings related to the
Merger and instituted against ARA and others; the effect of the ongoing COVID-19
pandemic and responses thereto; the effect of the restatement of ARA's
previously issued financial results and related matters and the related
Any forward-looking statement made in this communication speaks only as of the date on which it is made. ARA undertakes no obligation, and expressly disclaims any obligation, to update, alter or otherwise revise any forward-looking statement, whether written or oral, that may be made from time to time, whether as a result of new information, future developments or otherwise, except as may be required by law. --------------------------------------------------------------------------------
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