Item 1.01. Entry into a Material Definitive Agreement.
On
In addition, as of the effective time of the Merger (the "Effective Time"), (i)
each Company Stock Option (as defined in the Merger Agreement) that is
outstanding and unexercised immediately prior to the Effective Time, whether or
not vested or exercisable, will be canceled and converted into the right to
receive a cash payment, less any required withholding, equal to the product of
(A) the excess, if any, of the Offer Price per share over the applicable
exercise price per share of such Company Stock Option and (B) the number of
shares such holder could have purchased (assuming full vesting of all options)
had such holder exercised such Company Stock Option in full immediately prior to
the Effective Time, and (ii) each Company RSU (as defined in the Merger
Agreement) that is outstanding immediately prior to the Effective Time, whether
or not vested, will be canceled and replaced by an award providing the right to
receive, on the date that such Company RSU otherwise would have been settled, a
number of American Depositary Receipts of
The board of directors of SC, acting on the unanimous recommendation of a special committee (the "Special Committee") consisting of the independent and disinterested directors of SC and formed to negotiate and evaluate a potential transaction with SHUSA, has unanimously determined to recommend the Tender Offer to SC's shareholders (other than SHUSA). The board of directors of SHUSA has unanimously approved the Transaction.
The Merger Agreement contains customary representations and warranties from the parties, and each party has agreed to customary covenants, including, among others, covenants relating to (i) the conduct of business during the interim period between the execution of the Merger Agreement and the effective time of the Merger (including prohibition on certain actions, such as amendment to organizational documents, payment of dividends or distributions, incurrence of certain capital expenditures, entry into a new line of business, and incurrence of certain indebtedness, among others) and (ii) the obligation to use reasonable best efforts to take all actions and cause to be done all things necessary, proper or advisable to consummate the Transaction.
Consummation of the Tender Offer is subject to certain customary conditions,
including that: (i) the Merger Agreement has not been terminated; (ii) SC and
SHUSA must have obtained approval of the Transaction from the
If the Tender Offer is consummated, the only condition to the Merger is the absence of a legal prohibition.
The Merger Agreement provides for certain termination rights for both SHUSA and
SC (and, in the case of SC, with the approval of its Special Committee),
including in the event that: (i) the parties agree to terminate the Merger
Agreement by mutual agreement; (ii) the Tender Offer has not been consummated
prior to
--------------------------------------------------------------------------------
The Merger Agreement contains certain customary restrictions on SC and its representatives from soliciting alternative acquisition proposals prior to the closing of the Transaction.
The foregoing description of the Merger Agreement and the transactions
contemplated thereby 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 filed as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by
reference into this Item 2.01. The Merger Agreement is incorporated herein by
reference to provide investors and security holders with information regarding
its terms. It is not intended to provide any other factual or financial
information about SHUSA, SC, or any of their respective subsidiaries or
affiliates. The representations, warranties and covenants contained in the
Merger Agreement were made only for purposes of that agreement and as of
specific dates; were solely for the benefit of the parties to the Merger
Agreement; may be subject to limitations agreed upon by the parties, including
being qualified by confidential disclosures made for the purposes of allocating
contractual risk between the parties to the Merger Agreement instead of
establishing those matters as facts; and may be subject to standards of
materiality applicable to the contracting parties that differ from those
applicable to investors. Investors should not rely on the representations,
warranties and covenants or any description thereof as characterizations of the
actual state of facts or condition of SHUSA, SC or any of their respective
subsidiaries or affiliates. Moreover, information concerning the subject matter
of the representations, warranties and covenants may change after the date of
the Merger Agreement, which subsequent information may or may not be fully
reflected in public disclosures by SHUSA or SC. The Merger Agreement should not
be read alone, but should instead be read in conjunction with the other
information regarding the companies and the Transaction that will be contained
in, or incorporated by reference into, the tender offer statement on Schedule TO
and Schedule 13E-3 and the Solicitation/Recommendation Statement on Schedule
14D-9, as well as in the other filings that each of SHUSA and SC make with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofAugust 23, 2021 , by and amongSantander Consumer USA Holdings Inc. ,Santander Holdings USA, Inc. andMax Merger Sub, Inc. 104 Cover page formatted as Inline XBRL and contained in Exhibit 101
* Certain schedules have been omitted pursuant to Item 601(a)(5) of Regulation
S-K. SC hereby undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the
confidential treatment pursuant to Rule 24b-2 of the Exchange Act for any
schedules so furnished.
Cautionary Statement Regarding Forward-Looking Statements
This communication contains forward-looking statements, including statements regarding the potential consummation of the proposed Transaction, which involve a number of risks and uncertainties, including the satisfaction of closing conditions for the Transaction; the possibility that the Transaction will not be completed; and the impact of general economic, industry, market or political conditions. These statements constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933 and Section 21E of the Securities Exchange Act of 1934. The words "may," "might," "will," "should," "estimate," "project," "plan," "anticipate," "expect," "intend," "outlook," "believe" and other similar expressions (or the negative of such terms) are intended to identify forward-looking statements. If underlying assumptions prove inaccurate or unknown risks or uncertainties materialize, actual results and the timing of events may differ materially from the results and/or timing discussed in the forward-looking statements, and readers are cautioned not to place undue reliance on these forward-looking statements. Forward-looking statements speak only as of the date of this communication, and SC does not undertake any obligation to update any forward-looking statement except as required by law.
Additional Information and Where to Find It
The tender offer referenced in this communication has not been commenced. This
communication is for informational purposes only and is neither an offer to
purchase nor a solicitation of an offer to sell securities, nor is it a
substitute for the transaction disclosure materials that will be filed with the
--------------------------------------------------------------------------------
commenced. SHUSA and its acquisition subsidiary will file a tender offer
statement on Schedule TO and Schedule 13E-3 and thereafter SC will file a
Solicitation/Recommendation Statement on Schedule 14D-9 with the
--------------------------------------------------------------------------------
© Edgar Online, source