Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Upon the terms and subject to the conditions of the Merger Agreement, Merger Sub
will commence the Offer no later than
Pursuant to the Merger Agreement, following the consummation of the Offer, and subject to the conditions set forth in the Merger Agreement, Merger Sub will be merged with and into the Company (the "Merger"), whereupon the separate existence of Merger Sub shall cease, and the Company shall be the surviving corporation of the Merger and a wholly owned subsidiary of Parent. The Merger shall be governed by and effected under Section 251(h) of the Delaware General Corporation Law (the "DGCL"), without a vote of the stockholders of the Company.
At the effective time of the Merger (the "Effective Time"), all remaining outstanding Shares not tendered in the Offer (other than Shares held by Parent or any of its Subsidiaries, including Merger Sub, or in the treasury of the Company, or Shares held by stockholders who are entitled to exercise, and properly exercise, appraisal rights with respect to such Shares pursuant to, and who comply in all respects with, the provisions of Section 262 of the DGCL) will be cancelled and converted into the right to receive cash in an amount equal to the Offer Price, without interest (the "Merger Consideration"), subject to any required withholding of taxes.
Merger Sub's obligation to accept for payment and pay for all Shares validly tendered and not withdrawn pursuant to the Offer is subject to certain conditions including: (i) there being validly tendered and not validly withdrawn prior to the expiration of the Offer a number of Shares which, considered together with all other Shares, if any, beneficially owned by Parent, and its affiliates, but excluding any Shares tendered to guaranteed delivery procedures that have not yet been received, represents at least a majority of the Shares outstanding on a fully diluted basis, (ii) the expiration or termination of any waiting period (and extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, relating to the purchase of Shares pursuant to the Offer or the consummation of the Merger, (iii) the absence of any law, judgment, injunction, order or decree by any governmental authority that would make illegal or otherwise prevent or prohibit the consummation of the Offer or the Merger, (iv) that any change, event, effect or development that, individually or in the aggregate, has had or would reasonably be expected to have, a Company Material Adverse Effect (as defined in the Merger Agreement) shall not have occurred, (v) the accuracy of the representations and warranties of the Company contained in the Merger Agreement, subject to customary exceptions, (vi) the Company's material compliance with its covenants contained in the Merger Agreement, (vii) the Merger Agreement shall not have been terminated, and (viii) other customary conditions.
The Merger Agreement contains representations, warranties and covenants of the
parties as customary for transactions of this type. The Company has also agreed
to customary covenants governing the conduct of its business, including an
obligation to conduct its business in the ordinary course consistent with past
practices through the Effective Time. The Merger Agreement contains a "go-shop"
provision pursuant to which the Company retains the right to initiate, solicit,
propose, induce, receive, evaluate, encourage and engage in discussions and
negotiations with respect to alternative acquisition proposals from third
parties through
The Merger Agreement also provides that at the Effective Time, each outstanding Share of restricted stock granted under the Company's equity plans (a "Company Restricted Stock") that, as of immediately prior to the Effective Time, remains subject to any performance-vest, time-vest or other condition(s) that constitutes a "substantial risk of forfeiture" within the meaning of Section 83 of the Internal Revenue Code, which is outstanding immediately prior thereto shall become fully vested as of the Effective Time. Each award of Company Restricted Stock will, without any action on the part of Parent, Merger Sub, the Company or the holder thereof, be cancelled and converted into and will become a right to receive an amount in cash, without interest, equal to the product obtained by multiplying (i) the amount of the Merger Consideration by (ii) the total number of shares of Company Restricted Stock.
The Merger Agreement has been approved by the member manager of Parent and the board of directors of Merger Sub and the Company, and the Company's Board of Directors has determined that the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, are in the best interests of the Company and its stockholders, and recommended that stockholders of the Company accept the Offer and tender their Shares to Merger Sub pursuant to the Offer.
The Borrowers have obtained debt financing commitments from
The foregoing description of the Offer, the Merger and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated into this report by reference.
Limited Guarantee
On
Item 8.01 Other Events.
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description
2.1 Agreement and Plan of Merger, dated as ofJuly 19, 2020 , by and among the Company,Help/Systems, LLC ,Grail Merger Sub, Inc. , and solely with respect to certain sections therein,HS Purchaser, LLC andHelp/Systems Holdings, Inc. * 99.1 Limited Guarantee, dated as ofJuly 19, 2020 , byHS Midco, Inc. in favor of the Company. 99.2 Form of Support Agreement. 99.3 Press Release, datedJuly 20, 2020 .
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
Notice to Investors
The Offer described above has not yet commenced. This report and the attached
exhibits are not an offer to buy nor a solicitation of an offer to sell any
securities of the Company. The solicitation and the offer to buy shares of the
Company's common stock will only be made pursuant to a tender offer statement on
Schedule TO, including an offer to purchase, a letter of transmittal and other
related materials that Parent and Merger Sub intend to file with the
Forward-Looking Statements
Statements included in this report that are not a description of historical
facts are forward-looking statements. Words or phrases such as "believe," "may,"
"could," "will," "estimate," "continue," "anticipate," "intend," "seek," "plan,"
"expect," "should," "would" or similar expressions are intended to identify
forward-looking statements, and are based on the Company's current beliefs and
expectations. These forward-looking statements include, without limitation,
statements regarding the planned completion of the Offer and the Merger. You are
cautioned not to place undue reliance on these forward-looking statements, which
speak only as of the date hereof. The Company's actual future results may differ
materially from the Company's current expectations due to the risks and
uncertainties inherent in its business, the Offer and the Merger. These risks
include, but are not limited to: uncertainties as to the timing of the Offer and
the Merger; uncertainties as to the percentage of the Company's stockholders
tendering their shares in the Offer; the possibility that competing offers will
be made; the possibility that various closing conditions for the Offer or the
Merger may not be satisfied or waived, including that a governmental authority
may prohibit, delay or refuse to grant approval for the consummation of the
Merger; the effects of disruption from the Offer or Merger on the Company's
business; the fact that the announcement and pendency of the Offer and Merger
may make it more difficult to establish or maintain relationships with
employees, suppliers and other business partners; the effects of disruption
caused by the Offer or Merger making it more difficult to maintain relationships
with employees, customers, vendors and other business partners; the risk that
stockholder litigation in connection with the Offer or the Merger may result in
significant costs of defense, indemnification and liability; and risks and
uncertainties pertaining to the business of the Company, including the risks
detailed under "Risk Factors" and elsewhere in the Company's public periodic
filings with the
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