Item 1.01 Entry Into a Material Definitive Agreement.
On
The Merger Agreement and the transactions contemplated therein, including the Offer (as defined below) and the Merger, were unanimously approved and declared advisable by the Company's Board of Directors (the "Board").
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions described therein, Parent will cause Merger Sub to commence a tender
offer (the "Offer") for all of the Company's outstanding shares of common stock,
par value
The Offer will initially remain open for 30 business days from the date of commencement of the Offer. If at the scheduled expiration time of the Offer any of the conditions to the Offer have not been satisfied or waived by Parent and Merger Sub, Parent will cause Merger Sub to extend the Offer to permit the satisfaction of all Offer conditions.
The obligation of Merger Sub to purchase Shares tendered in the Offer is subject
to customary closing conditions, including (1) Shares having been validly
tendered and not properly withdrawn that represent, together with the Shares
then owned by Merger Sub, at least a majority of the then outstanding Shares
(the "Minimum Condition"), (2) the absence of any law, injunction, judgment or
other legal restraint that makes unlawful or prevents the consummation of the
Offer or the Merger, (3) the expiration or early termination of the waiting
periods applicable to the Offer and the Merger under
Following the consummation of the Offer, subject to the satisfaction or waiver
of certain customary conditions set forth in the Merger Agreement, Merger Sub
will merge with and into the Company, with the Company surviving as a wholly
owned subsidiary of Parent (the "Merger"), pursuant to the procedure provided
for under by Section 251(h) of the General Corporation Law of the
At the effective time of the Merger (the "Effective Time"), each issued and outstanding Share (other than Shares that are held by any stockholders who properly demand appraisal in connection with the Merger and Shares then owned by Royal Philips, Parent, Purchaser or the Company) will be converted into the right to receive the Offer Price, without interest and subject to any required withholding taxes.
The Merger Agreement contains representations and warranties and covenants of the parties customary for a transaction of this nature, including an agreement that, subject to certain exceptions, the parties will use reasonable best efforts to cause the Offer and the Merger to be consummated. Until the earlier of the termination of the Merger Agreement and the Effective Time, the Company has agreed to operate its business in the ordinary course of business in all material respects and has agreed to certain other negative operating covenants, as set forth more fully in the Merger Agreement.
--------------------------------------------------------------------------------
Starting on the date of the Merger Agreement, the Company will become subject to customary "no-shop" restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide non-public information to and engage in discussions or negotiations with third parties regarding alternative acquisition proposals.
Notwithstanding the limitations applicable under the "no-shop" restrictions, prior to the Offer Acceptance Time, the Company may under certain circumstances provide information to and participate in discussions or negotiations with third parties with respect to any unsolicited alternative acquisition proposal that the Board has determined constitutes or would be reasonably likely to result in a Superior Proposal. A "Superior Proposal" is an unsolicited bona fide written acquisition proposal that if consummated would result in a person or group becoming the beneficial owner of at least 80% of the (i) total voting power of the equity securities of the Company and its subsidiaries or (b) consolidated net revenues, net income or total assets of the Company, and in each case, the Board determines in its good faith judgment, after consultation with its financial advisors and outside legal counsel, would result in a transaction more favorable to the Company's stockholders from a financial point of view than the transactions contemplated by the Merger Agreement and is reasonably likely to be consummated, taking into account any legal, financial, regulatory and financing aspects (including the existence of a financing contingency), and the likelihood and timing of closing.
The Merger Agreement contains certain termination rights for the Company and Parent, including, among others, the right of (1) the Company to terminate the Merger Agreement in order to enter into a definitive acquisition agreement providing for a Superior Proposal and (2) Parent to terminate the Merger Agreement as a result of the Company's material breach of the no-shop provisions, the Board changing its recommendation with respect to the Offer or failing to reaffirm its recommendation in response to a competing proposal to acquire the Company or the Board permitting the Company to enter into a definitive acquisition agreement providing for a Superior Proposal.
Upon termination of the Merger Agreement under specified circumstances, including (1) a termination by the Company to accept a Superior Proposal that did not result from a breach of the non-solicitation provisions, (2) a termination by Parent if the Company enters into a definitive acquisition . . .
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
In connection with the Merger Agreement, the Board amended the Bylaws of the Company (the "Amendment") to add a new Article XV, Section 47 containing exclusive forum selection provisions, effective immediately.
The new Section 47 provides that, unless the Company consents in writing to the
selection of an alternative forum, the
The new Section 47 also provides that unless the Company consents in writing to
the selection of an alternative forum, the federal district court for the
District of
The foregoing description of the Amendment is qualified in its entirety by reference to the full text of the Amendment, a copy of which is attached hereto as Exhibit 3.1, and is incorporated herein by reference.
Item 8.01 Other Events.
Attached as Exhibit 99.1 is a copy of the Company's press release dated
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Exhibit Title 2.1 Agreement and Plan of Merger, datedDecember 18, 2020 , by and amongBioTelemetry, Inc. ,Philips Holding USA Inc. , andDavies Merger Sub, Inc. 3.1 Amendment to Bylaws, approvedDecember 18, 2020 99.1 Press release, datedDecember 18, 2020 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
--------------------------------------------------------------------------------
Forward-looking statements
This communication may contain certain forward-looking statements regarding the
Offer and Merger. Completion of the Offer and Merger are subject to conditions,
including satisfaction of a minimum tender condition and the need for regulatory
approvals, and there can be no assurance that those conditions can be satisfied
or that the transactions described in this communication (the "Transactions")
will be completed or will be completed when expected. Often, but not always,
forward-looking statements can be identified by the use of words such as
"plans," "expects," "expected," "scheduled," "estimates," "intends,"
"anticipates," "projects," "potential," "continues" or "believes," or variations
of such words and phrases, or by statements that certain actions, events,
conditions, circumstances or results "may," "could," "should," "would," "might"
or "will" be taken, occur or be achieved. By their nature, forward-looking
statements involve risk and uncertainty because they relate to events and depend
on circumstances that will occur in the future and there are many factors that
could cause actual results and developments to differ materially from those
expressed or implied by these forward-looking statements. These factors include,
but are not limited to, (i) the risk that not all conditions of the Offer or the
Merger will be satisfied or waived; (ii) uncertainties relating to the
anticipated timing of filings and approvals relating to the Transactions;
(iii) uncertainties as to the timing of the Offer and Merger; (iv) uncertainties
as to how many of the Company's stockholders will tender their stock in the
Offer; (v) the possibility that competing offers will be made; (vi) the failure
to complete the Offer or the Merger in the timeframe expected by the parties or
at all; (vii) the outcome of legal proceedings that may be instituted against
the Company and/or others relating to the Transactions; (viii) the risk that the
Transactions disrupt current plans and operations of the Company and adversely
affect its ability to maintain relationships with employees, customers, or
suppliers; (ix) the possibility that the parties may be unable to achieve
expected synergies and operating efficiencies within the expected time-frames or
at all and to successfully integrate the Company's operations into those of
Philips; (x) the successful implementation of Philips' strategy and the ability
to realize the benefits of this strategy; (xi) domestic and global economic and
business conditions; (xii) market and supply chain disruptions due to the
COVID-19 outbreak; (xiii) regulatory developments affecting Philips' and or the
Company's actual or proposed products or technologies; (xiv) political, economic
and other developments in countries where Philips operates;
(xv) unpredictability and severity of catastrophic events or epidemics,
pandemics or similar public health events (including the COVID-19 outbreak);
(xvi) industry consolidation and competition; (xvii) the possibility that
Philips' business and/or the Company's business will be adversely impacted
during the pendency of the Transactions and (xviii) other risk factors described
in the Company's Annual Report on Form 10-K and Quarterly Reports on Form 10-Q
filed with the
Important Information
The Offer has not yet commenced, and this communication is neither an offer to
purchase nor a solicitation of an offer to sell any shares of the common stock
of the Company or any other securities. On the commencement date of the Offer, a
tender offer statement on Schedule TO, including an offer to purchase, a letter
of transmittal and related documents, will be filed with the
--------------------------------------------------------------------------------
© Edgar Online, source