Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Merger Consideration. As a result of the Merger, each share of common stock, par
value
Treatment of Company Awards. The Merger Agreements provides that, at the Effective Time, each outstanding share of restricted stock (a "Restricted Share"), will be cancelled and converted into a right to receive an amount in cash, without interest and less applicable taxes, equal to (1) the total number of Restricted Shares prior to the Effective Time multiplied by (2) the Per Share Price.
Each outstanding performance shares (a "Performance Share"), if unvested, will vest either (1) as if the target level of performance had been achieved as of the Effective Time, or (2) if specifically provided under an individual employment agreement or award agreement in the event of a "Change of Control" at the greater of target or actual performance through the Closing, and all vested Performance Shares will be canceled and converted into a right to receive an amount in cash, without interest and less applicable taxes, equal to (1) the total number of such vested Performance Shares prior to the Effective Time multiplied by (2) the Per Share Price.
At the Effective Time, each outstanding restricted stock unit (a "Restricted Stock Unit"), vested or unvested, will be cancelled an converted into a right to receive an amount in cash, without interest and less applicable taxes, equal to (1) the total number of Restricted Stock Units prior to the Effective Time multiplied by (2) the Per Share Price.
Board Recommendation. In connection with the approval of the Merger Agreement,
the Company's Board of Directors unanimously resolved to recommend that the
Company's stockholders adopt the Merger Agreement in accordance with the General
Corporation Law of the
Representations, Warranties and Covenants. 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 to (1) to conduct the business of the Company and its subsidiaries, in all material respects, in the ordinary course of business and applicable law between the date of the Merger Agreement and the Effective Time, 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. Parent agreed to use reasonable best efforts to obtain the debt financing contemplated by the debt commitment letters delivered to Parent in connection with the execution and delivery of the Merger Agreement, and the Company agreed to take actions to cooperate with such efforts.
Closing Conditions. The consummation of the Merger is subject to certain customary conditions, including, but not limited to, (1) receipt of the vote in favor of the approval of the Merger Agreement by the holders of a majority of the outstanding shares of Company Common Stock entitled to vote on the Merger Agreement; (2) expiration of waiting periods (and any extensions thereof), if any, applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976; (3) the absence of a Company Material Adverse Change and (4) the absence of any law or order prohibiting, making illegal or enjoining the Merger.
Termination; Termination Fees. The Merger Agreement contains certain termination
rights, including the right of the Company to terminate the Merger Agreement to
accept a Superior Proposal, subject to specified conditions and limitations, and
the right of either party to terminate the Merger Agreement if the Merger is not
consummated by
The foregoing description of the Merger and the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1, which is incorporated herein by reference in its entirety. The Merger Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company. In particular, the assertions embodied in the representations and warranties contained in the Merger Agreement are qualified by information in the confidential Company Disclosure Letter provided by the Company to Parent in connection with the signing of the Merger Agreement. The confidential Company Disclosure Letter delivered in connection with the execution of the Merger Agreement contains information that modifies, qualifies and creates exceptions to the representations and warranties and certain covenants set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purposes of allocating risk between the Company and Parent rather than establishing matters as facts. In addition, investors are not third party beneficiaries under the Merger Agreement. Accordingly, the representations and warranties in the Merger Agreement should not be relied on as characterizations of the actual state of facts about the Company.
Important Information for Investors and Stockholders
Important Information and Where to Find it
The proposed acquisition of the Company by Parent and Merger Sub will be
submitted to the stockholders of the Company for approval of the merger
agreement by such stockholders. In connection with the proposed transaction, the
Company will file with the
THE COMPANY AND THE PROPOSED TRANSACTION. Investors and stockholders will be
able to obtain free copies of the proxy statement and other documents containing
important information about the Company, Parent and Merger Sub, once such
documents are filed with the
Certain Information Regarding Participants
The Company and certain of its directors, executive officers and other members
of management and employees may be deemed to be participants in the solicitation
of proxies from the stockholders of the Company in connection with the proposed
transaction. Information about the directors and executive officers of the
Company is set forth in its Annual Report on Form 10-K for the year ended
Forward-Looking Statements
All statements made in this Form 8-K, other than statements of historical fact,
are or may be deemed to be forward-looking statements. These statements are
forward-looking statements under the federal securities laws. We can give no
assurance that any future results discussed in these statements will be
achieved. These statements are based on current plans and expectations of
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits: Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofSeptember 9, 2021 , by and amongEcho Global Logistics, Inc. ,Einstein Midco, LLC andEinstein Merger Sub, Inc. * 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of
any omitted schedule will be furnished supplementally to the
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