Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the Merger Agreement, as soon as practicable after acquiring
sufficient shares of Company Common Stock pursuant to the Offer, and subject to
the satisfaction or waiver of certain conditions set forth in the Merger
Agreement, Purchaser will merge with and into Company, and Company will become a
wholly-owned subsidiary of Parent (the "Merger"), in accordance with Section
251(h) of the Delaware General Corporation Law (the "DGCL"), without a meeting
or vote of the Company's stockholders. In the Merger, the shares of Company
Common Stock remaining outstanding following the consummation of the Offer
(other than (a) shares owned immediately prior to the time as of which the
Merger becomes effective (the "Effective Time") by the Company or any direct or
indirect wholly-owned subsidiary of the
The obligation of Purchaser to accept for payment and pay for the shares tendered in the Offer is subject to the satisfaction or waiver of a number of offer conditions set forth in the Merger Agreement, including, without limitation: (1) that prior to the expiration of the Offer at least one share more than 50% of all then outstanding Company Common Stock when added to the shares of Company Common Stock, if any, already owned by Parent or any of its subsidiaries (as determined pursuant to the terms of the Merger Agreement) shall have been validly tendered and not validly withdrawn (the "Minimum Condition"), excluding, for purposes of determining whether the Minimum Condition has been satisfied, shares tendered in the Offer pursuant to guaranteed delivery procedures that have not yet been "received" (as such term is defined in the DGCL), which may not be waived, amended or changed by Purchaser without the consent of Company; (2) the absence of legal orders or restraints prohibiting the consummation of the transactions contemplated by the Merger Agreement; (3) the non-occurrence of a Company Material Adverse Effect (as defined in the Merger Agreement) that is continuing; (4) compliance by the Company with its covenants in the Merger Agreement in all material respects; (5) the accuracy of the Company's representations and warranties in the Merger Agreement, subject to specific materiality qualifications and thresholds; and (6) the absence of a termination of the Merger Agreement in accordance with its terms.
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The Company agreed to customary "no-shop" restrictions on its, its subsidiaries' and their respective representatives' ability to initiate, solicit or encourage alternative acquisition proposals from third parties and to provide nonpublic information to or participate in discussions or negotiations with third parties regarding alternative acquisition proposals, except as otherwise permitted by the Merger Agreement, including in connection with the compliance by the Company's Board of Directors (the "Board") with its fiduciary duties under applicable law.
The Company and Parent have each made customary representations and warranties in the Merger Agreement. The Company has agreed to customary covenants in the Merger Agreement, including, among others, covenants (1) to use commercially reasonable efforts to conduct its business and operations in the ordinary course and in accordance in all material respects with past practice until the Merger is consummated, and (2) not to engage in certain types of actions related to the operation of its business during this period without Parent's consent. The Company and Parent each agreed to use reasonable best efforts to take all actions as are necessary to consummate the Merger.
The Merger Agreement also includes termination provisions for both Company and
Parent. In connection with the termination of the Merger Agreement under
specified circumstances involving a superior proposal to acquire Company, or a
change in the recommendation by Board with respect to the transaction to
Company's stockholders, Company may be required to pay Parent a termination fee
of
Parent has obtained an equity commitment from
Based on the recommendation of a Special Committee of the Board consisting of
independent, disinterested directors, the Board approved the Merger Agreement
and the transactions contemplated by the Merger Agreement, including the Offer
and the Merger, and determined that the Merger Agreement and the transactions
contemplated by the Merger Agreement, including the Offer and the Merger, are
fair to, and advisable and in the best interests of the Company and its
stockholders, and the Company intends to file a Solicitation/Recommendation
Statement on Schedule 14D-9 (the "14D-9") with the
In connection with its recommendation and approvals as described in the preceding paragraph, the Special Committee and the Board took into consideration, among other things (in addition to these or other factors that may be further described in the 14D-9):
? that in
continue as a going concern and announced the formation of a special committee
of the Company's board of directors to explore strategic options, including
continuing to seek debt or equity financing, evaluating the potential sale of . . .
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
The Amendment will not become effective until the closing of the Merger and will terminate in the event that the Merger is not consummated for any reason.
The Amendment provides that
A copy of the Amendment is attached as Exhibit 10.2 to this report and is incorporated herein by reference. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment.
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Item 8.01 Other Events.
On
Additional Information
This report on Form 8-K is being filed in accordance with the requirements of
the Exchange Act and is neither a recommendation, an offer to purchase nor a
solicitation of an offer to sell any securities of the Company. The tender offer
described in this document and the exhibits filed herewith has not yet
commenced. This document is provided for informational purposes only. At the
time the tender offer is commenced, Parent and Purchaser will file with the
Cautionary Note Regarding Forward-Looking Statements
The statements contained in this Current Report on Form 8-K that are not
historical facts are forward-looking statements under the federal securities
laws. Words such as "anticipates," "could," "may," "estimates," "expects,"
"projects," "intends," "pending," "plans," "believes," "will" and words or
phrases of similar substance, or the negative of those words, used in connection
with any discussion of future operations, financial performance, plans, events,
trends or circumstances can be used to identify some, but not all,
forward-looking statements. In particular, statements regarding the expected
timing of the acquisition, plans, expectations and opportunities, new product
expectations and capabilities, projections, statements regarding future events,
and our outlook regarding our performance and growth are forward-looking
statements. These forward-looking statements are subject to risks and
uncertainties, including uncertainties regarding the expected timetable for
completing the tender offer and merger; uncertainties regarding the strategic
and other potential benefits of the transaction; uncertainties as to the
percentage of
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Item 9.01 Financial Statements and Exhibits. (d) Exhibits 2.1* Agreement and Plan of Merger, dated as ofJuly 24, 2022 , by and among Unity AC 1, LLC, aDelaware limited liability company ("Parent"), Unity AC 2, Inc., aDelaware corporation and a wholly-owned subsidiary of Parent, andAutoWeb, Inc. 10.1 Form of Tender and Support Agreement, dated as ofJuly 24, 2022 , by and among Unity AC 1, LLC, aDelaware limited liability company ("Parent"), Unity AC 2, Inc., aDelaware corporation and a wholly-owned subsidiary of Parent, and certain stockholders of the Company. 10.2 Amendment No. 2 to Employment Agreement, dated as ofJuly 24, 2022 , by an among,AutoWeb, Inc. , AC 1, LLC, Unity AC 2, Inc., andJared R. Rowe . 99.1 Joint press release datedJuly 25, 2022 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
*Certain schedules and exhibits omitted pursuant to item 601(a)(5) of Regulation S-K.
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