MOMENTIVE GLOBAL INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Subject to the terms and conditions of the Merger Agreement, at the effective
time of the Merger (the "Effective Time"), each outstanding share of common
stock, par value
Under the terms of the Merger Agreement, the completion of the Merger is subject
to certain customary closing conditions, including, among others: (i) the
adoption of the Merger Agreement by the affirmative vote of the holders of a
majority of the outstanding Momentive Shares; (ii) the approval of the issuance
of Zendesk Shares in the Merger (the "Zendesk Share Issuance") by a majority of
the votes cast by the holders of Zendesk Shares on such proposal; (iii) the
approval for listing on the
The Merger Agreement also provides that, at the Effective Time:
• Each share of Momentive restricted stock that is outstanding and unvested
and held by a Momentive employee who will continue employment with the
combined company immediately following the Effective Time will be
converted automatically into corresponding Zendesk restricted stock based
on the Exchange Ratio and otherwise subject to substantially the same
terms as were applicable to such share of restricted stock prior to the
Effective Time.
• Each option (whether vested or unvested and whether in-the-money or
out-of-the-money) relating to Momentive Shares held by a Momentive
employee who will continue employment with the combined company
immediately following the Effective Time will be assumed by Zendesk and
converted automatically into corresponding options relating to Zendesk
Shares based on the Exchange Ratio and otherwise subject to substantially
the same terms as were applicable to such option prior to the Effective
Time.
• Each in-the-money vested option relating to Momentive Shares that is held
by a Momentive employee who will not continue employment with the
combined company immediately following the Effective Time will be
cancelled and extinguished and the holder will receive for each Momentive
Share subject to such option a cash payment (subject to applicable
withholding) equal to the difference between (a) the product of the
Exchange Ratio times the volume weighted average trading price of a
Zendesk Share for the five trading days ending on the trading day
immediately preceding the closing date of the Merger, and (b) the option
exercise price per Momentive Share.
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• Each unvested option (whether in-the-money or out-of-the-money) relating
to Momentive Shares and each out-of-the-money vested option relating to
Momentive Shares, in each case held by a Momentive employee who will not
continue employment with the combined company immediately following the
Effective Time, will be cancelled and extinguished for no consideration.
• Each Momentive restricted stock unit that is unvested and held by a
Momentive employee who will continue employment with the combined company
immediately following the Effective Time will be converted automatically
into corresponding restricted stock units relating to Zendesk Shares
based on the Exchange Ratio and otherwise subject to substantially the
same terms as were applicable to such restricted stock unit prior to the
Effective Time.
• Each Momentive restricted stock unit and each share of Momentive
restricted stock that is outstanding and unvested and held by a Momentive
employee who will not continue employment with the combined company
immediately following the Effective Time will be cancelled and
extinguished for no consideration.
• Each Momentive restricted stock unit and each share of Momentive
restricted stock that is outstanding and vested will be cancelled and
extinguished, and the holder thereof will be entitled to receive (subject
to applicable withholding) a number of Zendesk Shares equal to the number
of Momentive Shares subject to such vested equity award multiplied by the
Exchange Ratio, with a cash payment for any fractional shares resulting
from the calculation.
The Merger Agreement contains customary representations, warranties and covenants made by each of Zendesk and Momentive, including, among others, covenants by Momentive regarding the conduct of its business prior to the closing of the Merger. Zendesk and Momentive are required, among other things, not to solicit proposals for certain alternative transactions and, subject to certain exceptions, not to engage in discussions or negotiations with any person making a proposal for any such alternative transaction. Zendesk is required to hold a meeting of its stockholders to vote on the Zendesk Share Issuance and Momentive is required to hold a meeting of its stockholders to vote on the adoption of the Merger Agreement.
Each of Zendesk and Momentive may terminate the Merger Agreement under certain
specified circumstances, including but not limited to, (i) if the Merger is not
consummated by
In certain circumstances in connection with the termination of the Merger
Agreement, Zendesk or Momentive may be required to pay the other a termination
fee of
Under the Merger Agreement, Momentive may be required to pay to Zendesk the Termination Fee if the Merger Agreement is terminated: (i) by Zendesk or Momentive because (A) the Merger has not been consummated on or prior to the End Date, (B) the failure to consummate the Merger was primarily due to a material failure on the part of Momentive to perform its covenants or obligations under the Merger Agreement, (C) at or prior to such termination, a third-party offer or proposal to acquire Momentive has been made known to Momentive, and (D) within 12 months after the date of such termination, Momentive has consummated a transaction with a third party or has entered into a definitive agreement with a third party providing for a transaction (and such transaction is ultimately consummated), in each case, for an acquisition of Momentive; (ii) by Zendesk or Momentive because Momentive has failed to obtain the necessary stockholder vote to adopt the Merger Agreement and (A) at or prior to such termination, a third-party offer or proposal to acquire Momentive has been made known publicly and has not been publicly withdrawn at least 10 business days prior to Momentive's stockholder meeting called for purposes of voting on the adoption of the Merger Agreement and (B) within 12 months after the date of such termination, Momentive has consummated a transaction with a third party or has entered into a definitive agreement with a third party providing for a transaction (and such transaction is ultimately consummated), in each case, for an acquisition of Momentive; and (iii) by Zendesk upon the occurrence of a Company Triggering Event (as defined in the Merger Agreement) or by Zendesk or Momentive because Momentive has failed to obtain the necessary stockholder vote to adopt the Merger Agreement after the occurrence of a Company Triggering Event.
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Under the Merger Agreement, Zendesk may be required to pay to Momentive the Termination Fee if the Merger Agreement is terminated: (i) by Zendesk or Momentive because (A) the Merger has not been consummated on or prior to the End Date, (B) the failure to consummate the Merger before the End Date was primarily due to a material failure on the part of Zendesk to perform its covenants or obligations under the Merger Agreement, (C) at or prior to such termination, a Disruptive Parent Acquisition Proposal (as defined in the Merger Agreement) has been made known to Zendesk, and (D) within 12 months after the date of such termination, Zendesk has consummated a transaction or has entered into a definitive agreement with a third party providing for a transaction (and such transaction is ultimately consummated), in each case, for an acquisition of Zendesk; (ii) by Zendesk or Momentive because Zendesk has failed to obtain the necessary stockholder vote to approve the Zendesk Share Issuance and (A) at or prior to such termination, a Disruptive Parent Acquisition Proposal has been made known publicly and has not been publicly withdrawn at least 10 business days prior to Zendesk's stockholder meeting called for purposes of voting to approve the Zendesk Share Issuance, and (B) within 12 months after the date of such termination, Zendesk has consummated a transaction or has entered into a definitive agreement with a third party providing for a transaction (and such transaction is ultimately consummated), in each case, for an acquisition of Zendesk; and (iii) by Momentive upon the occurrence of a Parent Triggering Event (as defined in the Merger Agreement) or by Zendesk or Momentive because Zendesk has failed to obtain the necessary stockholder vote to approve the Zendesk Share Issuance after the occurrence of a Parent Triggering Event.
The foregoing description of the Merger Agreement does not purport to be
complete and is qualified in its entirety by the full text of the Merger
Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated by
reference herein. 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 Zendesk or Momentive. In particular, the assertions
embodied in the representations and warranties contained in the Merger Agreement
are qualified by information in confidential disclosure schedules provided by
each of Zendesk and Momentive to each other in connection with the signing of
the Merger Agreement or in filings of the parties with the
Voting Agreements
Concurrently with the execution of the Merger Agreement,
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
2.1* Agreement and Plan of Merger, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Milky Way Acquisition Corp. andMomentive Global Inc. 10.1 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. andRyan Nabil Finley 10.2 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. and Sheryl K Sandberg Revocable Trust Dated9/3/2004 10.3 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. andSM Profits, LLC 10.4 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. andAlexander Joseph Lurie
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10.5 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. and Eliza and Larry Becker Family 2018 Irrevocable Trust DatedMay 31, 2018 10.6 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. and Jason and Jennifer Lurie Family 2018 Irrevocable Trust DatedMay 31, 2018 10.7 Voting Agreement, dated as ofOctober 28, 2021 , by and among Zendesk, Inc.,Momentive Global Inc. and Scott and Caitlin Vogelsong Family 2018 Irrevocable Trust DatedMay 31, 2018 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K. Momentive
agrees to furnish supplementally a copy of any omitted schedule to the
request; provided, however, that Momentive may request confidential treatment
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended, for
any schedules or exhibits so furnished.
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