https://www.sec.gov/Archives/edgar/data/1357204/000119312520283269/0001193125-20-283269-index.htm
MA Dated: 10/30/20
Merger Consideration: $106.50
Tender Commencement: 10 business days (11/16/20)
Minimum Tender Condition: there shall have been validly tendered in the Offer and not validly withdrawn that number of Shares that (together with any Shares owned by Parent and its Affiliates and excluding any Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” (as such term is defined in Section 251(h)(6)(f) of the DGCL)) represent at least a majority of the Shares outstanding as of the consummation of the Offer at the Offer Expiration Time (the “Minimum Tender Condition”);
Close: Promptly; not obligated to consummate on or prior to 12/18/20
Termination Date: 3/21/20
Termination Fee:
Company: $268M
Parent: $469M
Confidentiality Agreement: 11/5/20
Regulatory:
HSR 5 business days (11/6/20)
Best efforts:
(b) Without limiting the generality of the undertaking of Parent and Merger Sub pursuant to Section 7.06(a), Parent and Merger Sub shall, and shall cause each of their respective Subsidiaries to use reasonable best efforts to take any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other party so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of Parent’s, Merger Sub’s and their respective Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent and Merger Sub pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding that would otherwise have the effect of materially delaying or preventing the consummation of the Transactions. In addition, Parent and Merger Sub shall take all action necessary, including litigation on the merits and defending any Action in order to resist avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent or materially impede, interfere with, hinder or delay the consummation of the Offer, the Merger or the other Transactions or which would prevent the consummation of the Transactions prior to the Outside Date; provided, however, that in no event shall Parent, Merger Sub or any of their Affiliates be required under this Agreement to commence, threaten or otherwise seek to commence any Action against any Governmental Authority.
Dividends: Without limiting the generality of the foregoing, except as set forth in Section 6.01 of the Company Disclosure Schedule, expressly required by this Agreement, required by Law or Contract, as consented to in writing by Parent (such consent not to be unreasonably withheld, conditioned or delayed and shall be deemed to be given if, within five (5) Business Days after the Company has provided to Parent a written request for consent, Parent has not rejected such request in writing), during the period from the date of this Agreement to the Effective Time, the Company shall not, and shall not permit any Subsidiary of the Company to:
(a) declare, authorize, establish a record date for, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or other equity, property or a combination thereof) in respect of, any of its capital stock, other than dividends or distributions by a wholly-owned Subsidiary of the Company to its parent;
Superior Proposal Notice: 3 business days; 2 business days for any subsequent notice
Dissenters Rights: available
Governing Law: DE
“Material Adverse Effect” means any change, effect, event, occurrence, development, condition or fact that, individually or in the aggregate with all other changes, effects, events, occurrences, developments, conditions or facts, has had or would reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however, that in no event shall any change, effect, event, occurrence, development, condition or fact arising out of or resulting from any of the following, alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been, or there is reasonably expected to be, a Material Adverse Effect: (i) a change in general political, social, geopolitical or regulatory conditions, including any changes or developments arising from or in connection with the November 3, 2020 United States federal elections and the results thereof, (ii) any change in economic, financial, credit, banking, currency or capital market conditions, including interest, foreign exchange or exchange rates or any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) on any securities exchange or over-the-counter market, (iii) a change generally affecting the industry, or other companies in the industry, in which the Company and its Subsidiaries operate, (iv) any change in accounting requirements or principles required by GAAP (or any authoritative interpretations thereof), (v) any adoption, implementation, promulgation, repeal, modification,change, reinterpretation or proposal of any Law, (vi) any seasonal fluctuations affecting any of the businesses of the Company, its Subsidiaries or the Franchisees, (vii) any change in prices, availability or quality of raw materials used in any of the businesses of the Company, its Subsidiaries or the Franchisees, (viii) any plagues, pandemics (including COVID-19) or any escalation or worsening or subsequent waves thereof, epidemics or other outbreaks of diseases or public health events, escalation or acts of terrorism or sabotage, cyberterrorism, armed hostility, war (whether or not declared), military action or any weather-related event, fire, volcanoes, tsunamis, earthquakes, hurricanes, tornadoes, floods, wild fires, weather conditions or other natural or man-made disaster, force majeure or acts of God or other national or international calamity or the escalation or worsening of any of the occurrences or conditions referred to in this clause (viii), (ix) any quarantine, “shelter in place,” “stay at home,” workforce reduction, social distancing, shut down, closure, sequester, safety or similar Law, directive, restrictions, guidelines, responses or recommendations of or promulgated by any Governmental Authority, including the Centers for Disease Control and Prevention and the World Health Organization, in each case, in connection with or in response to SARS-CoV-2 or COVID-19 (together, “COVID-19”) and any evolutions or mutations thereof or related or associated epidemics, pandemics or disease outbreaks (all of the foregoing, “COVID-19 Measures”), including any change, effect, event, occurrence, development, condition or fact with respect to COVID-19 or the COVID-19 Measures or any escalation or worsening thereof (including any subsequent waves), (x) any changes in the market price or trading volume of the Shares or change in the Company’s credit ratings (provided, that, except as otherwise provided in this definition, the underlying causes of such failure referred to in this clause (x) may be considered in determining whether there is a Material Adverse Effect), (xi) the announcement of this Agreement and the Transactions or the pendency, performance or consummation of the Transactions, including any impact on the Company’s or the Company Subsidiaries’ relationships with employees, customers, suppliers, Franchisees or any other person (including pursuant to contractual relationships) (provided, that this clause (xi) shall not apply to references to “Material Adverse Effect” in Section 4.04), (xii) the taking of any action required by, or the failure to take any action prohibited by, this Agreement or consented to or requested by Parent, (xiii) any failure to meet, or changes to, any internal or published projections, forecasts, guidance, estimates, milestones, budgets, operating statistics or internal or published financial or operating predictions of revenue, earnings, cash flow, cash position or other financial or performance measures or operating statistics for any period (whether made by the Company or third parties) (provided, that, except as otherwise provided in this definition, the underlying causes of such failure referred to in this clause (xiii) may be considered in determining whether there is a Material Adverse Effect), (xiv) the identity of, or any facts relating to, Parent or Merger Sub or (xv) any Actions relating to this Agreement or the Transactions made or brought by any of the current or former stockholders of the Company (on their own behalf or on behalf of the Company) or any other person; provided, however, that any change, effect, event, occurrence, development, condition or fact resulting from or arising out of the exceptions set forth in clauses (i), (ii), (iii), (iv) and (v) shall only be taken into consideration in determining whether a Material Adverse Effect has occurred to the extent that such change, effect, event, occurrence, development, condition or fact has a materially disproportionate impact on the Company and its Subsidiaries, taken as a whole, compared to other companies that operate in the industry and geographic markets in which the Company and its Subsidiaries operate (it being understood and agreed that, for purposes of determining whether there is a materially disproportionate impact on the Company and its Subsidiaries, taken as a whole, compared to other companies that operate in the industry and geographic markets in which the Company and its Subsidiaries operate, the Company and its Subsidiaries shall be compared to other companies that have comparable presences in the geographic markets in which the Company and its Subsidiaries operate).
“Parent Material Adverse Effect” means any change, effect, event, occurrence, development, condition or fact that would reasonably be expected to prevent, materially delay or materially impede the consummation of the Transactions by Parent or Merger Sub or otherwise prevent, materially delay or materially impede Parent or Merger Sub from performing its obligations under this Agreement.
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