Item 1.01. Entry into a Material Definitive Agreement.
On February 21, 2022, Cummins Inc. (the "Company") entered into an Agreement and
Plan of Merger (the "Merger Agreement") with Meritor, Inc., an Indiana
corporation ("Meritor"), and Rose NewCo Inc., an Indiana corporation ("Merger
Sub"), pursuant to which the Company agreed to acquire Meritor through the
merger of Merger Sub with and into Meritor (the "Merger"), with Meritor
surviving the Merger as a wholly owned subsidiary of the Company (together with
the other transactions contemplated thereby, the "Transaction").
Pursuant to the terms and conditions in the Merger Agreement, at the effective
time of the Merger (the "Effective Time"), each share of common stock, par value
$1.00 per share, of Meritor ("Common Stock") issued and outstanding as of
immediately prior to the Effective Time, other than shares of Common Stock held
by Meritor as treasury stock or held by the Company or Merger Sub or held by a
subsidiary of the Company (other than Merger Sub) or Meritor (other than shares
held on behalf of third parties), will be automatically cancelled and converted
into the right to receive $36.50 in cash, without interest (the "Merger
Consideration"). The total Transaction value is approximately $3.7 billion,
including assumed debt and net of acquired cash.
Pursuant to the terms and conditions in the Merger Agreement, at the effective
time of the Merger, each outstanding share of restricted Common Stock will be
fully vested and treated as outstanding shares of Common Stock, and performance
share units ("PSUs") that are scheduled to vest on or before September 30, 2024
will vest and be cancelled in exchange for the right to receive, on a per share
basis, the Merger Consideration. Restricted stock units, and PSUs that are
scheduled to vest after September 30, 2024, will be converted into the right to
receive, on a per share basis, cash equal to the Merger Consideration, without
interest, with awards continuing to vest over the remaining service-vesting
schedule (subject to accelerated vesting on a qualifying termination of
employment). If a performance period in respect of any PSU is incomplete or
performance is not determinable as of the effective time, the number of shares
subject to such PSU will be determined assuming applicable performance goals are
satisfied at the target level of performance at the effective time of the
Merger.
Conditions
The Transaction is subject to the satisfaction or waiver of customary closing
conditions, including, among other things, (i) approval of the Merger Agreement
by the affirmative vote of the holders of a majority of all the votes entitled
to be cast to approve the Merger Agreement (the "Shareholder Approval"); (ii)
the expiration or termination of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iii) the
receipt of specified regulatory approvals; (iv) the absence of an enacted law,
injunction or order prohibiting the Merger; (v) the accuracy of the
representations and warranties contained in the Merger Agreement (subject to
certain materiality and material adverse effect qualifiers); (vi) compliance in
all material respects with the covenants and agreements in the Merger Agreement;
(vii) absence of an effect or effects that have had a Company Material Adverse
Effect (as defined in the Merger Agreement) that is continuing or that would
reasonably be expected to have a Company Material Adverse Effect within a
reasonable period following the closing of the Merger; and (viii) the absence of
an enacted law, injunction or order in connection with specified regulatory
approvals that would require the Company, Meritor or any of their respective
subsidiaries to take or commit to take an action that constitutes or would
reasonably be expected to result in a Burdensome Condition (as defined in the
Merger Agreement). The Merger Agreement does not contain a financing condition.
The Company intends to fund the Merger Consideration using a combination of cash
on the Company's balance sheet and debt.
Representations, Warranties and Covenants
The Merger Agreement contains representations and warranties customary for
transactions of this type. Meritor has agreed to various customary covenants and
agreements, including, among others; (i) a covenant providing for Meritor to
convene and hold a meeting of its shareholders for the purpose of obtaining the
Shareholder Approval; (ii) an agreement to use commercially reasonable efforts
to conduct its business in all material respects in the ordinary course
consistent with past practice during the period between the execution of the
Merger Agreement and the closing of the Merger, subject to certain exceptions;
(iii) an agreement not to engage in specified types of actions during this
period, subject to certain exceptions; and (iv) subject to certain exceptions,
not to solicit or negotiate alternative proposals or withdraw, modify or qualify
in any manner adverse to the Company the recommendation of Meritor's board of
directors (the "Meritor Board") that Meritor's shareholders approve the Merger
Agreement.
Termination and Termination Fees
The Merger Agreement contains certain termination rights, including that either
party may terminate the Merger Agreement if, subject to certain exceptions and
limitations, the Merger has not closed by December 21, 2022 (subject to an
automatic extension to March 21, 2023 and an additional automatic extension to
June 21, 2023, if, on such date, all of the closing conditions except those
relating to regulatory approvals have been satisfied or waived) (the "End
Date"). Additionally, Meritor may terminate the Merger Agreement under specified
circumstances to accept an unsolicited superior proposal from a third party, and
the Company may terminate the Merger Agreement if, (i) before the Shareholder
Approval has been obtained, the Meritor Board changes its recommendation that
Meritor's shareholders approve the Merger Agreement or Meritor willfully
breached its non-solicitation obligations or (ii) a governmental authority has
enacted a law, injunction or order in connection with specified regulatory
approvals that requires the Company, Meritor or any of their respective
subsidiaries to take or commit to take an action that constitutes a Burdensome
Condition.
The Merger Agreement provides that, upon termination of the Merger Agreement by
Meritor or the Company under specified circumstances (including termination by
Meritor to accept a superior proposal), a termination fee of $73.5 million will
be payable by Meritor to the Company.
The Merger Agreement also provides that a reverse termination fee of $160
million will be payable by the Company to Meritor if the Merger Agreement is
terminated by Meritor or the Company under certain specified circumstances
(including as a result of failing to obtain regulatory approvals by the End
Date).
The Merger Agreement also provides that either party may seek to compel the
other party to specifically perform its obligations under the Merger Agreement.
The foregoing description of the Merger Agreement is not complete and is
qualified in its entirety by reference to the Merger Agreement, which is
attached hereto as Exhibit 2.1 and is incorporated by reference herein.
The Merger Agreement has been included to provide security holders with
information regarding its terms. It is not intended to provide any other factual
information about the Company or Meritor. The Merger Agreement contains
representations and warranties that the Company, on one hand, and Meritor, on
the other hand, made to and solely for the benefit of each other as of specific
dates. The assertions embodied in those representations and warranties were made
solely for purposes of the Merger Agreement and may be subject to important
qualifications and limitations agreed to by the parties in connection with
negotiating the terms of the Merger Agreement or contained in confidential
disclosure schedules. Some of those representations and warranties (i) may not
be accurate or complete as of any specified date and are modified, qualified and
created in important part by the underlying disclosure schedules; (ii) may be
subject to a contractual standard of materiality different from those generally
applicable to security holders; or (iii) have been used for the purpose of
allocating risk between the parties to the Merger Agreement rather than
establishing matters as facts. For the foregoing reasons, the representations
and warranties should not be relied upon as statements of factual information.
Security holders are not third-party beneficiaries under the Merger Agreement
and should not rely on the representations, warranties and covenants or any
descriptions thereof as characterizations of the actual state of facts or
conditions of the Company or Meritor. Moreover, information concerning the
subject matter of the representations and warranties may change after the date
of the Merger Agreement, which subsequent information may or may not be fully
reflected in the Company's or Meritor's public disclosures.
Cautionary Language Regarding Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements
within the meaning of the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995 related to the proposed transaction between
Cummins and Meritor, including statements regarding the benefits and the timing
of the transaction as well as statements regarding the companies' products and
markets. Forward-looking statements are typically identified by words or phrases
such as "expects," "anticipates," "believes," "estimates," "intends," "plans
to," "ought," "could," "will," "should," "likely," "appears," "projects,"
"seeks," "forecasts," "outlook," "may" and similar expressions. These statements
are not guarantees of future performance and involve certain risks,
uncertainties and assumptions, which we refer to as "future factors," which are
difficult to predict. Actual outcomes and results may differ materially from
those expressed or projected in such forward-looking statements. Such risks and
uncertainties include, among others, the occurrence of any event, change or
other circumstances that could give rise to the termination of the merger
agreement between the parties to the proposed transaction; the failure to obtain
the approval of Meritor's shareholders; the failure to obtain certain required
regulatory approvals or the failure to satisfy any of the other closing
conditions to the completion of the proposed transaction within the expected
timeframes or at all; risks related to disruption of management's attention from
ongoing business operations due to the transaction; the effect of the
announcement of the transaction on Cummins' and Meritor's ability to retain and
hire key personnel, to maintain relationships with customers, suppliers and
others with whom Meritor and Cummins do business, or on the companies'
respective operating results and businesses generally; the ability to meet
expectations regarding the timing and completion of the transaction; the
duration and severity of the COVID-19 pandemic and its effects on public health,
the global economy, and financial markets, as well as Meritor and Cummins'
industries, customers, operations, workforce, supply chains, distribution
systems and demand for their respective products; reliance on major OEM
customers and possible negative outcomes from contract negotiations with major
customers, including failure to negotiate acceptable terms in contract renewal
negotiations and the ability to obtain new customers; the outcome of actual and
potential product liability, warranty and recall claims; technological changes
in Meritor's and Cummins' industries as a result of the trends toward
electrified drivetrains and the integration of advanced electronics and the
impact on the demand for products and services; labor relations of the
respective companies, suppliers and customers, including potential disruptions
in supply of parts to facilities or demand for products due to work stoppages;
possible adverse effects of any future suspension of normal trade credit terms
by suppliers; potential impairment of long-lived assets, including goodwill;
potential adjustment of the value of deferred tax assets; competitive product
and pricing pressures; the amount of Meritor's and Cummins' debt; the ability to
continue to comply with covenants in Meritor's and Cummins' financing
agreements; the outcome of existing and any future legal proceedings, including
any proceedings or related liabilities with respect to environmental,
asbestos-related, or other matters; possible changes in accounting rules; and
the other risks listed from time to time the Company's filings with the SEC and
other substantial costs, risks and uncertainties, including but not limited to
those detailed in the Company's Annual Report on Form 10-K for the year ended
December 31, 2021 and from time to time in other filings of the Company with the
SEC. These forward-looking statements are made only as of the date hereof, and
the Company undertakes no obligation to update or revise the forward-looking
statements, whether as a result of new information, future events or otherwise,
except as otherwise required by law.
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