Director and Executive Officer Compensation Arrangements
Employment Agreements
Each of Messrs. Lucia, O'Gara, Sherman and Williams and Mses. Perrin and Bjorck has entered into an employment agreement with HMS, each
of which was amended in connection with the Merger (each, as amended, an "Employment Agreement"). Each Employment Agreement provides the executive with
certain payments and benefits if the executive's employment is terminated by HMS or its affiliates without "cause" or by the executive for "good reason," in either case, within 24 months
following a "change in control" of HMS (as such terms are defined in the applicable agreement) (any such termination, a "Qualifying Termination").
Upon
a Qualifying Termination, Mr. Lucia is entitled to receive the following payments and benefits:
-
-
Cash severance paid in a single lump sum payment in an amount equal to (i) 24 times his monthly base salary plus (ii) 2.0 times
his annual target bonus for the year of termination;
-
-
Continued health coverage for 24 months or until he becomes eligible for health coverage from another employer, whichever is earlier;
and
-
-
Company-provided financial and tax services for the one-year period following the effective date of the release.
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Additionally,
if Mr. Lucia's employment is terminated by HMS without cause or by him for good reason within six months prior to a change in control, Mr. Lucia will receive
a cash payment equal to the excess of the amount he would have received for any equity awards outstanding or deemed to be outstanding, or canceled or forfeited as a result of his termination or such
change in control, if he were continuing in service as of the date of the change in control and terminated immediately thereafter over the amount actually received, paid in a single lump sum payment.
Upon
a Qualifying Termination, each of Mses. Perrin and Bjorck and Messrs. O'Gara, Sherman and Williams is entitled to receive the following payments and
benefits:
-
-
Cash severance in an amount equal to 1.5 times the sum of the executive's annual base salary and target bonus opportunity for the year in which
the termination occurs, paid in a single lump sum;
-
-
A lump sum amount equal to 18 times the difference between the executive's monthly COBRA coverage premium for the same type of medical and
dental coverage in which the executive is enrolled as of the termination date and the executive's then-monthly employee contribution; and
-
-
Company-provided financial and tax services for the one-year period following the effective date of the release.
Each
of Messrs. Alexander and Sims is entitled to receive the following payments and benefits upon a termination by HMS (or an affiliate) without cause or by the executive for
good reason:
-
-
Cash severance in an amount equal to one times the executive's annual base salary, payable in equal installments over the 12-month period
following the termination date; and
-
-
A lump sum amount equal to 12 times the difference between the executive's monthly COBRA coverage premium for the same type of medical and
dental coverage in which the executive is enrolled as of the termination date and the executive's then-monthly employee contribution.
All
of the severance payments and benefits described above are subject to the executive's timely execution and non-revocation of a general release of claims and continued compliance with
his or her restrictive covenants agreement.
Transaction Bonuses
On December 20, 2020, in connection with the Merger, the Board approved transaction bonus awards for each of our current executive
officers. The transaction bonuses are each evidenced by a letter agreement, which provides that the executive will be entitled to receive the transaction bonus in a single lump sum within
30 days following the Effective Time, subject to the executive's continued employment through the Effective Time, or upon an earlier termination without cause or for good reason.
|
|
|
|
|
Name
|
|
Transaction
Bonus
|
|
William C. Lucia
|
|
$
|
1,275,000
|
|
David A. Alexander
|
|
$
|
136,000
|
|
Meredith W. Bjorck
|
|
$
|
400,000
|
|
Emmet W. O'Gara
|
|
$
|
212,500
|
|
Maria E. Perrin
|
|
$
|
550,000
|
|
Jeffrey S. Sherman
|
|
$
|
550,000
|
|
Jacob J. Sims
|
|
$
|
182,500
|
|
Douglas M. Williams, Jr.
|
|
$
|
550,000
|
|
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Retention Bonuses
The Board adopted the HMS Holdings Corp. Retention Bonus Plan (the "Retention Plan"), effective
as of December 20, 2020, and approved retention bonuses under the Retention Plan for certain key employees. Each of our current executive officers, except for Mr. Lucia, was granted a
retention bonus equal to 75% of his or her annual base salary. Pursuant to the terms of the Retention Plan, each retention bonus will vest in full on the 90-day anniversary of the Closing Date,
subject to the executive's continued employment with HMS through such date. If the executive's
employment is terminated without cause or for good reason after the Closing Date but prior to the 90-day anniversary of the Closing Date, the executive will be entitled to receive the retention bonus,
subject to his or her timely execution and non-revocation of a release.
|
|
|
|
|
Name
|
|
Retention
Bonus
|
|
David A. Alexander
|
|
$
|
255,000
|
|
Meredith W. Bjorck
|
|
$
|
300,000
|
|
Emmet W. O'Gara
|
|
$
|
318,750
|
|
Maria E. Perrin
|
|
$
|
412,500
|
|
Jeffrey S. Sherman
|
|
$
|
412,500
|
|
Jacob J. Sims
|
|
$
|
273,750
|
|
Douglas M. Williams, Jr.
|
|
$
|
412,500
|
|
Employee Benefits
The Merger Agreement requires Gainwell (or the surviving corporation) to provide certain compensation and benefits for a period of
18 months following the Effective Time for continuing HMS employees, and to take certain actions in respect of employee benefits provided to HMS's employees, including its executive officers.
For a detailed description of these requirements,
please see the section entitled "The Merger AgreementEmployee Matters" of this proxy statement.
Insurance and Indemnification of Directors and Executive Officers
Gainwell has agreed that it will indemnify and hold harmless each present and former director, officer and employee of HMS and its subsidiaries
against any costs or expenses incurred in connection with any claim or proceeding occurring at or prior to the Effective Time to the fullest extent that HMS and its subsidiaries would have been
required by applicable law and their respective organizational documents or indemnification agreements, in effect as of the date of the Merger Agreement, to indemnify such persons.
Prior
to the Effective Time, HMS will purchase a pre-paid, non-cancelable six-year "tail" policy, of directors' and officers' liability insurance with respect to matters arising on or
before the Effective Time.
Financing of the Merger
The Merger Agreement is not conditioned upon receipt of financing by Gainwell. We anticipate that the total amount of funds necessary to
consummate the Merger and the related transactions, not including fees and expenses, will be approximately $3.4 billion, including the estimated funds needed to (i) pay our stockholders
the Merger Consideration due to them under the Merger Agreement; (ii) make payments in respect of outstanding HMS stock options, and restricted stock unit and deferred stock unit awards
pursuant to the Merger Agreement; and (iii) pay the outstanding net indebtedness of HMS.
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Gainwell,
Intermediate Holdco and Gainwell Holding Corp., a Delaware corporation and wholly owned subsidiary of Intermediate Holdco
("Holdings"), have obtained financing commitments for the purpose of financing the Transactions and paying related fees and expenses (the
"Financing"). JPMorgan Chase Bank, N.A. and the other lenders party to the debt commitment letter (together with certain of their respective affiliates,
the "Lenders") have agreed to provide Gainwell with debt financing in an aggregate principal amount of up to $2,486 million on the terms and
conditions set forth in a debt commitment letter. Additionally, Intermediate Holdco and Holdings have received a preferred equity/payment-in-kind debt commitment in an aggregate amount of up to
$1,068 million on the terms set forth in a preferred equity/mezzanine commitment letter. The obligations of the Lenders to provide debt financing under the debt commitment letter, and the
obligations of the preferred Investors (as defined in the preferred equity/mezzanine commitment letter) to provide preferred equity financing and payment-in-kind debt financing under the preferred
equity/mezzanine commitment letter are subject to customary terms and conditions. The Merger Agreement provides that Gainwell, Merger Sub and Intermediate Holdco will use reasonable best efforts to do
all things necessary or advisable to arrange or obtain the Financing as promptly as practicable following the date of the Merger Agreement and to consummate the Financing on or prior to the Closing
Date. The Merger is not conditioned on Gainwell's or Intermediate Holdco's receipt of the Financing.
Closing and Effective Time of the Merger
Subject to the terms and conditions of the Merger Agreement, the closing of the Merger will take place at the offices of Latham &
Watkins LLP, 885 Third Avenue, New York, NY 10022, at 10:00 a.m. (Eastern Time) on the date that is two business days after the date on which all of the closing conditions set forth in
the Merger Agreement (described under the section entitled "The Merger AgreementConditions to the Merger" of this proxy statement) have
been satisfied or waived (other than those conditions that by their terms are to be satisfied immediately prior to or at the Closing, but subject to the satisfaction or waiver of such conditions),
unless another time, date or place is agreed to by HMS and Gainwell, except that the Closing will not occur prior to the date that is the earlier to occur of (i) January 29, 2021 and
(ii) the date that is a date specified by Gainwell on no less than three business days' notice to HMS (subject in each case to the satisfaction or waiver (by the party entitled to grant such
waiver) of all the closing conditions set forth in the Merger Agreement described under the section entitled "The Merger AgreementConditions to the
Merger" of this proxy statement as of the date determined pursuant to this sentence).
Concurrently
with, or as promptly as practicable after, the Closing, the parties to the Merger Agreement will cause to be filed with the Delaware Secretary of State an appropriate,
executed certificate of merger with respect to the Merger in accordance with the DGCL. The Merger will become effective upon the filing of such certificate of merger, or at such later date and time as
is agreed by Gainwell and HMS and specified in such certificate of merger.
Appraisal Rights
If the Merger is consummated, HMS's stockholders will be entitled to appraisal rights in connection with the Merger under Section 262,
provided they comply with the conditions established by Section 262.
The
following discussion is not a complete statement of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262,
which is attached to this proxy statement as Appendix B. The following summary does not constitute any legal or other advice nor does it constitute a recommendation that stockholders exercise
their appraisal rights under Section 262.
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Under
Section 262, record holders of Common Stock who make the demand described below with respect to such shares, do not vote in favor of the Merger Proposal, continuously hold
such shares through the Effective Time, and otherwise comply with the statutory requirements of Section 262 will be entitled to an appraisal of their shares of our Common Stock and to receive
payment in cash for the fair value of their shares as of the Effective Time, exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the
Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be fair value. The "fair
value" of the shares of our Common Stock as determined by the Delaware Court of Chancery may be more than, less than, or equal to the Merger
Consideration per share that holders thereof are otherwise entitled to receive under the terms of the Merger Agreement. Stockholders should be aware that an investment banking
opinion as to the fairness, from a financial point of view, of the consideration payable in a sale transaction, such as the Merger, is not an opinion as to, and does not otherwise address "fair value"
under Section 262 of the DGCL. All references in this summary of appraisal rights to a "stockholder" or "holders of shares" are to the record holder or holders of such shares of our Common
Stock.
Under
Section 262, when a merger agreement is to be submitted by a corporation's board of directors for adoption at a meeting of such corporation's stockholders, not less than
20 days before such meeting, the corporation submitting the matter to a vote of stockholders must notify the stockholders who were stockholders on the record date for notice of such meeting
with respect to shares for which appraisal rights will be available pursuant to Section 262 that such appraisal rights will be available. A copy of Section 262 must be included with such
notice. This proxy statement constitutes HMS's notice to its stockholders that appraisal rights are available in connection with the Merger and the full text of
Section 262 is attached to this proxy statement as Appendix B, in compliance with the requirements of Section 262. Stockholders who wish to exercise such appraisal rights should
carefully review the text of Section 262 contained in Appendix B. Failure to comply timely and properly with the requirements of Section 262 may result in the loss of such
stockholder's appraisal rights under the DGCL. Moreover, because of the complexity of the procedures for exercising appraisal rights, HMS believes that a stockholder considering the exercise of such
rights should seek the advice of legal counsel.
Stockholders
who wish to exercise their appraisal rights of their shares of our Common Stock must deliver to HMS a written demand for appraisal of the holder's shares before the vote is
taken to approve the Merger Proposal. The demand must reasonably inform HMS of the identity of the holder of record of shares who intends to demand appraisal of his, her or its shares. A stockholder
seeking appraisal of his or her shares may not vote or submit a proxy in favor of the Merger Proposal. If a stockholder fails to deliver such written demand or votes or submits a proxy in favor of the
Merger Proposal, such stockholder may remain entitled to receive the per share Merger Consideration, without interest and less any applicable withholding taxes, for his, her or its shares of our
Common Stock but will not have appraisal rights with respect to such shares. In addition, a holder of shares wishing to exercise appraisal rights must hold of record the shares on the date the written
demand for appraisal is made and must continue to hold such shares of record through the Effective Time.
A
proxy that is submitted and does not contain voting instructions will, unless properly revoked, be voted "FOR" the Merger Proposal, and it may result in the loss of the stockholder's
right of appraisal and nullify any previously delivered written demand for appraisal. Therefore, a stockholder who submits a proxy and who wishes to exercise appraisal rights must either submit a
proxy containing instructions to vote "AGAINST" the Merger Proposal or "ABSTAIN" from voting on the Merger Proposal. Voting against or failing to vote on the Merger Proposal by itself does not
constitute a demand for appraisal within the meaning of Section 262. The written demand for appraisal must be in addition to and separate from any proxy or vote on the Merger Proposal.
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All
demands for appraisal should be addressed to:
HMS
Holdings Corp.
5615 High Point Drive
Irving, Texas 75038
Attention: Corporate Secretary
and
must be delivered to HMS before the vote is taken to approve the Merger Proposal at the Special Meeting, and must be executed by, or on behalf of, the stockholder. The demand will be sufficient if
it reasonably informs HMS of the identity of the stockholder and the intention of the stockholder to demand appraisal of the "fair value" of his, her or its shares of our Common Stock. A stockholder's
failure to deliver to HMS the written demand prior to the taking of the vote on the Merger Proposal at the Special Meeting may result in the loss of appraisal rights.
Only
a holder of record is entitled to demand an appraisal of the shares registered in that holder's name. Accordingly, to be effective, a demand for appraisal by a stockholder must be
made by, or on behalf of, the record stockholder. The demand should set forth, fully and correctly, the record stockholder's name as it appears in the transfer agent's records and should specify the
stockholder's mailing address and the number of shares registered in the stockholder's name. The demand must state that the person intends thereby to demand appraisal of the stockholder's shares in
connection with the Merger. The demand cannot be made by the person having a beneficial interest in such shares if he or she does not also hold such shares of record. A person having a beneficial
interest in shares that are held of record in the name of another person, such as a broker, fiduciary, bank or other nominee, must act promptly to cause the record holder to follow the steps
summarized herein properly and in a timely manner to perfect appraisal rights. If shares are owned of record by a person other than the beneficial owner, including a broker, fiduciary (such as a
trustee, guardian or custodian), bank or other nominee, such demand must be executed by or for the record owner. If a stockholder holds shares through a broker or bank who in turn holds the shares
through a central securities depository nominee, a demand for appraisal of such shares must be made by or on behalf of the depository nominee and must identify the depository nominee as record holder.
If a stockholder holds through a broker, bank or other nominee and wishes to exercise appraisal rights, such stockholder should consult with his, her or its broker, bank or other nominee to determine
the appropriate procedures for the making of a demand for appraisal by the nominee.
If
shares are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, execution of a demand for appraisal must be made in that capacity. If the shares are
owned of record by more than one person, as in a joint tenancy or tenancy in common, the demand must be executed by or for all joint owners. An authorized agent, including an authorized agent for two
or more joint owners, may execute the demand for appraisal for a stockholder of record; however, the agent must identify the record owner or owners and expressly disclose the fact that, in executing
the demand, he or she is acting as agent for the record owner. A record owner, such as a broker, bank or other nominee, who holds shares as a nominee for others, may exercise his or her right of
appraisal with respect to the shares held for one or more beneficial owners, while not exercising this right for other beneficial owners. In that case, the written demand should state the number of
shares as to which appraisal is sought. Where no number of shares is expressly mentioned, the demand will be presumed to cover all shares held in the name of the record owner.
Within
10 days after the Effective Time, the surviving corporation in the Merger must give written notice of the Effective Time to each stockholder who has demanded appraisal in
accordance with Section 262 and who did not vote in favor of the Merger Proposal. At any time within 60 days after the Effective Time, any stockholder who has not commenced an appraisal
proceeding or joined a proceeding as a named party may withdraw the stockholder's demand and accept the Merger Consideration, without interest and less any applicable withholding taxes, for that
holder's shares of our
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Common
Stock by delivering to the surviving corporation a written withdrawal of the demand for appraisal. However, any such attempt to withdraw the demand made more than 60 days after the
Effective Time will require written approval of the surviving corporation. No appraisal proceeding in the Delaware Court of Chancery will be dismissed as to any stockholder without the approval of the
Delaware Court of Chancery, with such approval conditioned upon such terms as the Delaware Court of Chancery deems just. If the surviving corporation does not approve a request to withdraw a demand
for appraisal when that approval is required, or, except with respect to any stockholder who withdraws such stockholder's right to appraisal in accordance with the proviso in the immediately preceding
sentence, if the Delaware Court of Chancery does not approve the dismissal of an appraisal proceeding, the stockholder will be entitled to receive only the appraised value of his, her or its shares of
our Common Stock determined in any such appraisal proceeding, which value may be more than, less than, or equal to the Merger Consideration per share, without interest and less any applicable
withholding taxes.
Within
120 days after the Effective Time, but not thereafter, either the surviving corporation or any stockholder who has complied with the requirements of Section 262 and
is entitled to appraisal rights under Section 262 may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery demanding a determination of the fair value of the
shares held by all such stockholders. Upon the filing of the petition by a stockholder, service of a copy of such petition will be made upon the surviving corporation. The surviving corporation has no
obligation to file such petition and has no present intention to file a petition and holders should not assume that the surviving corporation will file a petition. In the event that the
surviving corporation does not file such petition, it is the obligation of the holders of our Common Stock to initiate all necessary action to perfect their appraisal rights with respect to shares
within the time prescribed in Section 262. In addition, within 120 days after the Effective Time, any stockholder who has theretofore complied with the applicable provisions of
Section 262 will be entitled to receive from the surviving corporation, upon written request, a statement setting forth the aggregate number of shares not voted in favor of the Merger Proposal
and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. A person who is the beneficial owner of shares held either in a voting trust or
by a nominee on behalf of such person and for which appraisal has been properly demanded may, in such person's own name, file a petition for appraisal or request from the surviving corporation
such statement. The statement must be mailed within 10 days after such written request has been received by the surviving corporation or within 10 days after the expiration of the period
for delivery of demands for appraisal, whichever is later.
If
a petition for appraisal is duly filed by a stockholder and a copy of the petition is delivered to the surviving corporation, then the surviving corporation will be obligated, within
20 days after receiving service of a copy of the petition, to file with the Delaware Register in Chancery in which the petition was filed a duly verified list containing the names and addresses
of all stockholders who have demanded an appraisal of their shares and with whom agreements as to the value of their shares have not been reached. After notice to stockholders who have demanded
appraisal from the Delaware Register in Chancery, if such notice is ordered by the Delaware Court of Chancery, the Delaware Court of Chancery will conduct a hearing upon the petition and determine
those stockholders who have
complied with Section 262 and who have become entitled to the appraisal rights provided by Section 262. Additionally, because our Common Stock will have been publicly listed on the
Nasdaq Global Select Market, the Delaware Court of Chancery is required under Section 262 to dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal
rights unless (i) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of our Common Stock or (ii) the value of the Merger Consideration for such total
number of shares of our Common Stock exceeds $1 million.
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After
determination of the stockholders entitled to appraisal of their shares, the Delaware Court of Chancery will appraise the shares, determining their fair value as of the Effective
Time after taking into account all relevant factors exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the
amount determined to be the fair value. When the fair value has been determined, the Delaware Court of Chancery will direct the payment of such value by the surviving corporation to the stockholders
entitled thereto. Unless the Delaware Court of Chancery in its discretion determines otherwise for good cause shown, and except as provided in the following sentence, interest from the Effective Time
through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during
the period between the Effective Time and the date of payment of the judgment. At any time before the entry of judgment in the appraisal proceeding, the surviving corporation may pay to each
stockholder entitled to appraisal an amount in cash, in which case interest will accrue thereafter as provided in the preceding sentence only upon the sum of (i) the difference, if any, between
the amount so paid and the fair value of shares as determined by the Delaware Court of Chancery and (ii) interest theretofore accrued, unless paid at that time.
Neither
HMS nor Gainwell anticipates offering more than the Merger Consideration provided for in the Merger Agreement to any stockholder exercising appraisal rights and they reserve the
right to assert, in any appraisal proceeding, that, for purposes of Section 262, the "fair value" of a share of our Common Stock is less than the per share Merger Consideration. In determining
"fair value," the Delaware Court of Chancery is required to take into account all relevant factors. In Weinberger v. UOP, Inc., 457 A.2d 701
(Del. 1983), the Delaware Supreme Court discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that "proof of value by any techniques or methods
which are generally considered acceptable in the financial community and otherwise admissible in court" should be considered and that "[f]air price obviously requires
consideration of all relevant factors involving the value of a company." The Delaware Supreme Court has stated that in making this determination of fair value, the court must consider market value,
asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the
merged corporation. Section 262 provides that fair value is to be "exclusive of any element of value arising from the accomplishment or expectation of the merger." In Cede & Co. v. Technicolor,
Inc., 634 A.2d 345 (Del. 1993), the Delaware Supreme Court stated that such exclusion is a "narrow
exclusion [that] does not encompass known elements of value," but which rather applies only to the speculative elements of value arising from such accomplishment or
expectation. In Weinberger, the Delaware Supreme Court also stated that "elements of future value,
including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered."
Costs
of the appraisal proceeding (which do not include attorneys' fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and imposed upon the
surviving corporation and the stockholders participating in the appraisal proceeding by the Delaware Court of Chancery, as it deems equitable in the circumstances. Each dissenting stockholder is
responsible for his, her or its attorneys and expert witness expenses, although upon the application of a dissenting stockholder, the Delaware Court of Chancery may order all or a portion of the
expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorneys' fees and the fees and expenses of experts used in the appraisal
proceeding, to be charged pro rata against the value of all shares entitled to appraisal. Any stockholder who demanded appraisal rights will not, after the Effective Time, be entitled to vote shares
subject to that demand for any purpose or to receive payments of dividends or any other distribution with respect to those shares other than with respect to payment as of the Record Date prior to the
Effective Time.
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At
any time within 60 days after the Effective Time, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party will have the right
to withdraw such demand for appraisal and to accept the terms offered in the Merger; after this period, the stockholder may withdraw such demand for appraisal only with the consent of the surviving
corporation. If no petition for appraisal is filed with the Delaware Court of Chancery within 120 days after the Effective Time, or if the stockholder otherwise fails to perfect, successfully
withdraws or loses such holder's right to appraisal, then the stockholder's right to appraisal will cease, and such stockholder will be entitled to receive the Merger Consideration, without interest
and less any applicable withholding taxes. Inasmuch as the surviving corporation has no obligation to file such a petition, and has no present intention to do so, any holder of shares who desires such
a petition to be filed is advised to file it on a timely basis. As indicated above, any stockholder may withdraw such stockholder's demand for appraisal by delivering to the surviving corporation a
written withdrawal of his, her or its demand for appraisal and acceptance of the Merger Consideration, without interest and less any applicable withholding taxes, except (i) that any such
attempt to withdraw made more than 60 days after the Effective Time will require written approval of the surviving corporation and (ii) that no appraisal proceeding in the Delaware Court
of Chancery will be dismissed as to any stockholder without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems
just, provided, however, that the preceding clause (ii) will not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to
withdraw such stockholder's demand for appraisal and to accept the Merger Consideration, without interest and less any applicable withholding taxes, on terms offered upon the Merger within
60 days after the Effective Time.
Failure to comply strictly with all of the procedures set forth in Section 262 may result in the loss of a stockholder's statutory appraisal
rights.
Material U.S. Federal Income Tax Consequences of the Merger to Holders of Common Stock
The following discussion is a summary of the material U.S. federal income tax consequences of the Merger that generally are relevant to holders
of shares of Common Stock whose shares are converted into the right to receive cash pursuant to the Merger. This discussion is based upon the Internal Revenue Code of 1986, as amended (the
"Code"), Treasury Regulations promulgated under the Code, court decisions, published positions of the Internal Revenue Service (the
"IRS"), and other applicable authorities, all as in effect on the date of this proxy statement and all of which are subject to change or differing
interpretations, possibly with retroactive effect. Any such change or differing interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion
is limited to holders who hold their shares of Common Stock as "capital assets" within the meaning of Section 1221 of the Code (generally, property held for investment purposes). This summary
does not describe any of the tax consequences arising under the laws of any state, local or foreign tax jurisdiction and does not consider any aspects of U.S. federal tax law other than income
taxation (e.g., estate, gift or alternative minimum tax or the Medicare net investment income surtax). In addition, this summary does not address the U.S. federal income tax consequences to
holders of shares who exercise appraisal rights under the DGCL. For purposes of this discussion, a "holder" means either a U.S. Holder or a Non-U.S. Holder or both, as the context may require.
This
discussion is for general information only and does not address all of the tax consequences that may be relevant to holders in light of their particular circumstances,
including:
-
-
holders who may be subject to special treatment under U.S. federal income tax laws, such as: financial institutions, tax-exempt organizations,
S corporations or any other entities or arrangements treated as partnerships or pass-through entities for U.S. federal income tax purposes or any investors in or owners of any such S corporation,
entity or arrangement, insurance companies, mutual funds, dealers in stocks and securities, traders in securities that
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elect
to use the mark-to-market method of accounting for their securities, regulated investment companies, real estate investment trusts, or certain expatriates or former long-term residents of the
United States;
-
-
holders holding the shares as part of a hedging, constructive sale or conversion, straddle or other risk reducing transaction;
-
-
holders that received their shares of Common Stock in a compensatory transaction;
-
-
holders that are "controlled foreign corporations" or "passive foreign investment companies," as those terms are used in the Code;
-
-
holders that have held at any time, directly, indirectly or constructively, more than 5% of our Common Stock;
-
-
holders who own an equity interest, actually or constructively, in Gainwell or the surviving corporation; or
-
-
U.S. Holders whose "functional currency" is not the U.S. dollar.
If
an entity or arrangement classified as a partnership for U.S. federal income tax purposes is an owner of shares of Common Stock, the tax treatment of a partner in such partnership
will generally depend upon the status of the partner and the activities of the partnership. Partnerships holding the shares of Common Stock and partners therein should consult their tax advisors
regarding the consequences of the Merger.
We
have not sought, and do not intend to seek, any ruling from the IRS with respect to the statements made and the conclusions reached in the following summary. No assurance can be given
that the IRS will agree with the views expressed in this summary, or that a court will not sustain any challenge by the IRS in the event of litigation.
THIS DISCUSSION IS PROVIDED FOR GENERAL INFORMATION ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE TO ANY HOLDER. A HOLDER SHOULD CONSULT ITS OWN TAX ADVISORS
CONCERNING THE U.S. FEDERAL INCOME TAX CONSEQUENCES RELATING TO THE MERGER IN LIGHT OF ITS PARTICULAR CIRCUMSTANCES AND ANY CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING
JURISDICTION OR OTHER TAX LAWS.
U.S. Holders
For purposes of this discussion, a "U.S. Holder" is a beneficial owner of shares of Common Stock who or that is for U.S. federal income tax
purposes:
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An individual who is a citizen or resident of the United States;
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A corporation, or other entity taxable as a corporation, created or organized in or under the laws of the United States or any state thereof or
the District of Columbia;
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An estate, the income of which is subject to U.S. federal income taxation regardless of its source; or
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A trust (i) that is subject to the primary supervision of a court within the United States and the control of one or more United States
persons as defined in section 7701(a)(30) of the Code or (ii) that has a valid election in effect under applicable Treasury regulations to be treated as a United States person.
The
receipt of cash by a U.S. Holder in exchange for shares of Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, such
U.S.
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Holder's
gain or loss will be equal to the difference, if any, between the amount of cash received pursuant to the Merger (determined before deduction for any applicable withholding taxes) and the
U.S. Holder's adjusted tax basis in the shares surrendered pursuant to the Merger. A U.S. Holder's adjusted tax basis generally will equal the amount that such U.S. Holder paid for the shares, reduced
(but not below zero) by the amount of distributions previously received (if any) that were not treated as dividends for U.S. federal income tax purposes. Such gain or loss generally will be capital
gain or loss and will be long-term capital gain or loss if such U.S. Holder's holding period in such shares is more than 1 year at the time of the consummation of the Merger. A reduced tax rate
on capital gain generally will apply to long-term capital gain of a non-corporate U.S. Holder. There are limitations on the deductibility of capital losses. If a U.S. Holder acquired different blocks
of Common Stock at different times and different prices, that U.S. Holder must determine its, his or her gain or loss, adjusted tax basis and holding period separately with respect to each block of
Common Stock.
Non-U.S. Holders
For purposes of this discussion, the term "Non-U.S. Holder" means a beneficial owner of shares of Common Stock who or that is not a U.S. Holder
or treated as a partnership for U.S. federal income tax purposes.
Any
gain realized by a Non-U.S. Holder pursuant to the Merger generally will not be subject to U.S. federal income tax unless:
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the gain is effectively connected with a trade or business of such Non-U.S. Holder in the United States (and, if required by an applicable
income tax treaty, is attributable to a permanent establishment maintained by such Non-U.S. Holder in the United States), in which case such gain generally will be subject to U.S. federal income tax
at rates generally applicable to U.S. persons, and, if the Non-U.S. Holder is a corporation, such gain may also be subject to the branch profits tax at a rate of 30% (or a lower rate under an
applicable tax treaty);
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such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of that disposition,
and certain other specified conditions are met, in which case such gain (net of certain losses) will be subject to U.S. federal income tax at a rate of 30% (or a lower rate under an applicable tax
treaty); or
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our Common Stock constitutes a United States real property interest ("USRPI") by reason of the Company being or having been a United States
real property holding corporation ("USRPHC") for U.S. federal income tax purposes.
With
respect to the third bullet point above, the Company believes it currently is not a USRPHC. However, because the determination of whether we are a USRPHC depends on the fair market
value of the Company's real property interests and other business assets, there can be no assurance that the Company currently is not a USRPHC or has not been a USRPHC in the past. Even if the Company
were a USRPHC, gain arising from the conversion of a Non-U.S. Holder's shares of Common Stock into the right to receive cash pursuant to the Merger will not be subject to U.S. federal income tax
pursuant to the third bullet point above if our Common Stock is "regularly traded," as defined by applicable Treasury Regulations, on an established securities market and such Non-U.S. Holder owned,
actually and constructively, 5% or less of Common Stock throughout the Non-U.S. Holder's entire holding period or, if shorter, the five-year period ending on the Closing Date.
Information Reporting and Backup Withholding
Information reporting and backup withholding may apply to the proceeds received by a holder pursuant to the Merger. Backup withholding generally
will not apply to (i) a U.S. Holder who furnishes a correct taxpayer identification number and certifies that such holder is not subject to backup
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withholding
on IRS Form W-9 or otherwise establishes an exemption, or (ii) a Non-U.S. Holder who provides a certification of such holder's non-U.S. status on the applicable IRS
Form W-8 or otherwise establishes an exemption. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit
against the holder's U.S. federal income tax liability, provided that the required information is timely furnished to the IRS. Copies of information returns that are filed with the IRS may be made
available to the tax authorities of the country in which a Non-U.S. Holder resides or is established.
Regulatory Approvals Required for the Merger
HSR Act and U.S. Antitrust Matters
Under the HSR Act, and the rules promulgated thereunder by the FTC, the Merger cannot be consummated until HMS and Gainwell each file a
notification and report form with the FTC and the Antitrust Division of the Department of Justice under the HSR Act and the
applicable waiting period thereunder has expired or been terminated. A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar-day waiting period following
the parties' filing of their respective HSR Act notification forms or the early termination of that waiting period. HMS and Gainwell and their respective affiliates filed their respective HSR Act
notifications on December 28, 2020. On January 15, 2021, the FTC notified HMS and Gainwell that their request for early termination of the applicable waiting period was granted.
At
any time before or after consummation of the Merger, notwithstanding the expiration or termination of the waiting period under the HSR Act, the Antitrust Division of the Department of
Justice or the FTC could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the consummation of the Merger, seeking
divestiture of substantial assets of the parties or requiring the parties to license, or hold separate, assets or terminate existing relationships and contractual rights. At any time before or after
the consummation of the Merger, and notwithstanding the expiration or termination of the waiting period under the HSR Act, any state could take such action under the antitrust laws as it deems
necessary or desirable in the public interest. Such action could include seeking to enjoin the consummation of the Merger or seeking divestiture of substantial assets of the parties. Private parties
may also seek to take legal action under the antitrust laws under certain circumstances.
In
connection with obtaining any approval or consent related to any applicable law, Gainwell has agreed to take, or cause to be taken (including by its subsidiaries and affiliates), any
and all actions necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any proceeding in any forum or the issuance of any governmental order that would
(or to obtain the agreement or consent of any governmental authority to the Transactions the absence of which would) delay, enjoin, prevent, restrain or otherwise prohibit the Merger.
Delisting and Deregistration of Common Stock
Our Common Stock is currently registered under the Exchange Act and is listed on the Nasdaq Global Select Market under the symbol "HMSY". If the
Merger is consummated, HMS will cease to be a publicly traded company and will become a wholly owned subsidiary of Gainwell, and our Common Stock will be delisted from the Nasdaq Global Select Market
and deregistered under the Exchange Act.
The following summary describes certain material provisions of the Merger Agreement. This summary is not complete and is qualified in its entirety by reference to
the Merger Agreement, which is attached to this proxy statement as Appendix A and incorporated into this proxy statement by reference. We encourage you to read the Merger Agreement carefully in
its entirety because this summary may not contain all the information about the Merger Agreement that is important to you. The rights and obligations of the parties are governed
by the express terms and conditions of the Merger Agreement and not by this summary or any other information contained in this proxy statement.
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THE MERGER AGREEMENT
Explanatory Note Regarding the Merger Agreement
The Merger Agreement and this summary of its terms have been included to provide you with information regarding the terms of the Merger
Agreement. Factual disclosures about HMS contained in this proxy statement or in HMS's public reports previously filed with the SEC that are incorporated by reference into this proxy statement may
supplement, update or modify the factual
disclosures about HMS contained in the Merger Agreement and described in this summary. The representations, warranties and covenants made in the Merger Agreement by HMS, Gainwell, Merger Sub and
Intermediate Holdco were made only for purposes of the Merger Agreement and as of specified dates and were qualified and subject to important limitations agreed to by HMS, Gainwell, Merger Sub and
Intermediate Holdco in connection with negotiating the terms of the Merger Agreement. In particular, in your review of the representations and warranties contained in the Merger Agreement and
described in this summary, it is important to bear in mind that the representations and warranties were negotiated solely for the benefit of the parties to the Merger Agreement with the principal
purpose of contractually allocating risk between the parties to the Merger Agreement, rather than establishing matters as facts. The representations and warranties may also be subject to a contractual
standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC, and in some cases were qualified by confidential disclosures that were
made by each party to the other, which disclosures are not reflected in the Merger Agreement. Moreover, information concerning the subject matter of the representations and warranties, which do not
purport to be accurate as of the date of this proxy statement, may have changed since the date of the Merger Agreement, and subsequent developments or new information qualifying a representation or
warranty may have been included in this proxy statement or in the respective public filings made by each of HMS or Gainwell with the SEC. Accordingly, the representations and warranties and provisions
of the Merger Agreement should not be read alone, but instead should be read together with the information provided elsewhere in this proxy statement and the documents incorporated by reference into
this proxy statement. You should not rely on the representations, warranties, and covenants or any descriptions thereof as characterizations of the actual statement of facts or conditions of the
parties thereto or any of their respective subsidiaries or affiliates.
Additional
information about HMS may be found elsewhere in this proxy statement and HMS's other public filings. See the section entitled "Where You Can Find More
Information" of this proxy statement.
When the Merger Becomes Effective
Subject to the terms and conditions of the Merger Agreement, the closing of the Merger will take place at the offices of Latham &
Watkins LLP, 885 Third Avenue, New York, NY 10022, at 10:00 a.m. (Eastern Time) on the date that is two business days after the date on which all of the closing conditions set forth in
the Merger Agreement (described under the section entitled "The Merger AgreementConditions to the Merger" of this proxy statement) have
been satisfied or waived (other than those conditions that by their terms are to be satisfied immediately prior to or at the Closing, but subject to the satisfaction or waiver of such conditions),
unless another time, date or place is agreed to by HMS and Gainwell, except that the Closing will not occur prior to the date that is the earlier to occur of (i) January 29, 2021 and
(ii) the date that is a date specified by Gainwell on no less than three business days' notice to HMS (subject in each case to the satisfaction or waiver (by the party entitled to grant such
waiver) of all the closing conditions set forth in the Merger Agreement (described under the section entitled "The Merger AgreementConditions to the
Merger" of this proxy statement) as of the date determined pursuant to this sentence).
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Concurrently
with, or as promptly as practicable after the Closing, the parties to the Merger Agreement will cause to be filed with the Delaware Secretary of State an appropriate,
executed certificate of merger with respect to the Merger in accordance with the DGCL. The Merger will become effective upon the filing of such certificate of merger, or at such later date and time as
is agreed by Gainwell and HMS and specified in such certificate of merger.
Structure of the Merger; Certificate of Incorporation; Bylaws; Directors and Officers
Upon the terms and conditions of the Merger Agreement, at the Effective Time, Merger Sub will merge with and into HMS and the separate corporate
existence of Merger Sub will cease, with HMS continuing as the surviving corporation and a wholly owned subsidiary of Gainwell. At the Effective Time, the Certificate of Incorporation of HMS will, by
virtue of the Merger, be amended and restated in its entirety to be identical to the certificate of incorporation of Merger Sub in effect immediately prior to the Effective Time except that the name
of the corporation therein will be changed to HMS, and such amended and restated certificate of incorporation will be the certificate of incorporation of the surviving corporation until thereafter
amended. At the Effective Time, the Bylaws of HMS will be amended and restated in their entirety to be identical to the bylaws of Merger Sub, as in effect immediately before the Effective Time except
that the name of the corporation therein will be changed to HMS, until thereafter amended. From and after the Effective Time, unless otherwise determined by Gainwell prior to the Effective Time, the
officers of HMS immediately before the Effective Time will be the initial officers of, and, unless otherwise determined by Gainwell prior to the Effective Time, the directors of Merger Sub immediately
before the Effective Time will be the initial directors of, the surviving corporation and, in each case, will hold office until their respective successors are duly elected and qualified, or until
their earlier death, resignation or removal, in accordance with the surviving corporation's certificate of incorporation and bylaws.
Effect of the Merger on our Common Stock
At the Effective Time, by virtue of the Merger and without any action on the part of Gainwell, Merger Sub or HMS or their respective
stockholders, each share of Common Stock issued
and outstanding immediately prior to the Effective Time (but excluding any Cancelled Shares and Dissenting Shares) will be converted into the right to receive the Merger Consideration, without
interest and less any applicable withholding taxes. From and after the Effective Time, such Common Stock will no longer be outstanding, will automatically be cancelled and retired, and will cease to
exist, and each holder of a share of Common Stock will cease to have any rights with respect thereto, except the right to receive, upon surrender of Certificates or Book-Entry Shares, the Merger
Consideration.
At
the Effective Time, any shares of Common Stock that are Cancelled Shares will automatically be cancelled and retired without any conversion thereof and will cease to exist, and no
consideration or payment will be delivered in exchange for such shares.
The
Merger Consideration will be adjusted appropriately to provide the same economic effect as contemplated in the Merger Agreement to reflect the effect of any reclassification,
recapitalization, exchange, stock split (including reverse stock split), division or subdivision of shares, or combination or readjustment of shares or any stock dividend or stock distribution with a
record date occurring on or after the date of the Merger Agreement and prior to the Effective Time.
Treatment of Equity Awards
Options. Under the Merger Agreement, each HMS stock option with a per share exercise price that is less than the Merger Consideration
that is
outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, will be cancelled as of immediately prior to the Effective Time and converted into the right to receive
an amount in cash (without interest) equal to the product
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obtained
by multiplying (A) the aggregate number of shares of Common Stock subject to such HMS option immediately prior to the Effective Time and (B) the excess, if any, of the Merger
Consideration over the exercise price per share of such HMS option, subject to reduction for any applicable withholding or other taxes required by applicable law to be withheld. Options with a per
share exercise price equal to or exceeding the Merger Consideration that are outstanding and unexercised
immediately prior to the Effective Time, whether vested or unvested, will be cancelled for no consideration.
Restricted Stock Unit Awards and Deferred Stock Unit Awards. The Merger Agreement also provides that, except as set forth in the
following sentence,
each award of restricted stock units and deferred stock units covering shares of our Common Stock that is outstanding immediately prior to the Effective Time will be cancelled and converted into the
right to receive a cash payment equal to the product of the Merger Consideration and the aggregate number of shares subject to the award (with any performance-based goals deemed to be achieved at the
"target" level of performance, and subject to applicable withholding or other taxes required by applicable law to be withheld). Each award of restricted stock units covering shares of our Common Stock
that is granted or awarded after the signing date of the Merger Agreement and that is outstanding immediately prior to the Effective Time will be cancelled and converted into the right to receive a
cash payment equal to the product obtained by multiplying (i) the product of the number of shares of Common Stock underlying the award and a fraction, the numerator of which is the number of
days completed from the date of grant until the Closing Date and the denominator of which is 1,095, and (ii) the Merger Consideration (subject to applicable withholding or other taxes required
by applicable law to be withheld).
Payment for Common Stock
Prior to the Effective Time, Gainwell or Intermediate Holdco will deposit, or cause to be deposited, with the Paying Agent, cash in an amount
sufficient to pay the aggregate Merger Consideration payable to all of the holders of Common Stock, other than the Cancelled Shares and except for any Dissenting Shares. In addition, Gainwell or
Intermediate Holdco will deposit, or cause to be deposited, with the Company, cash so that HMS has cash on hand in an amount necessary to pay the aggregate Merger Consideration payable to all of the
holders of HMS options, restricted stock unit awards and deferred stock unit awards, which will be payable through HMS's payroll system.
Promptly
following the Effective Time and in any event no later than the third business day following the Effective Time, Gainwell will cause the Paying Agent to mail to each holder of
record of Certificates that immediately prior to the Effective Time represented outstanding shares of Common Stock (other than the Cancelled Shares and except for any Dissenting Shares) (i) a
letter of transmittal, which will specify how to effect delivery of each stockholder's shares of Common Stock and passing of risk of loss and title and (ii) instructions for effecting the
surrender of such Common Stock in exchange for cash in an amount equal to the Merger Consideration multiplied by the number of shares of Common Stock held by such stockholder. Exchange of any
Book-Entry Shares will be effected as promptly as practicable in accordance with the Paying Agent's customary procedures with respect to securities represented by book entry; the payment of the Merger
Consideration with respect to Book-Entry Shares will only be made to the person in whose name such Book-Entry Shares are registered, without interest and less any applicable withholding taxes.
Representations and Warranties
The Merger Agreement contains representations and warranties of each of HMS, Gainwell, Merger Sub and Intermediate Holdco, subject to certain
qualifications or exceptions in the Merger
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Agreement
and the disclosure schedules delivered in connection with the Merger Agreement, as to, among other things:
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corporate organization, existence, good standing and corporate power and authority;
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corporate power and authority to enter into the Merger Agreement and to perform thereunder;
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the absence of certain violations, defaults or consent requirements under certain contracts, organizational documents and law, in each case
arising out of the execution, delivery or performance of, consummation of the transactions contemplated by, or compliance with any of the provisions of the Merger Agreement;
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required regulatory filings or actions and authorizations, consents or approvals of governmental entities and other persons;
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the absence of certain litigation, orders and judgments and governmental proceedings and investigations related to Gainwell and its
subsidiaries or HMS and its subsidiaries (as applicable);
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matters relating to information to be included in required filings with the SEC in connection with the Merger, including this proxy statement;
and
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the absence of any fees owed to investment bankers or brokers in connection with the Merger, other than those specified in the Merger
Agreement.
The
Merger Agreement also contains representations and warranties of HMS, subject to certain qualifications or exceptions in the Merger Agreement and the disclosure schedules delivered
in connection with the Merger Agreement, as to, among other things:
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the capitalization and authorized issuance of HMS's equity securities, including the authorized capital stock, outstanding options, restricted
stock unit awards and deferred stock unit awards;
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the organization and capitalization of HMS's subsidiaries;
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the timeliness and accuracy of HMS's filings with the SEC and of financial statements included in its SEC filings;
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HMS's disclosure controls and procedures and internal control over financial reporting and compliance with the Sarbanes-Oxley Act;
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the absence of any material outstanding or unresolved comments in comment letters from the SEC staff with respect to any of HMS's filings with
the SEC;
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the absence of certain events or changes in the business of HMS between December 31, 2019 and December 20, 2020, including that
there has not been a Company Material Adverse Effect;
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the absence of undisclosed liabilities;
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certain categories of specified material contracts, including as to effectiveness and lack of breach or default for such contracts and the
absence of any material claims or disputes pending or threatened under such material contracts;
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the compliance by HMS and its subsidiaries with applicable law and licenses, permits and other authorizations;
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real property owned or leased by HMS or any of its subsidiaries;
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the ownership of or rights with respect to, and lack of infringement with respect to, intellectual property owned or used by HMS and its
subsidiaries;
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insurance policies of HMS or any of its subsidiaries;
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the payment of taxes, the filing of tax returns, lack of tax audits or proceedings and other tax matters related to HMS and its subsidiaries;
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HMS's employee benefit plans and other agreements with its employees;
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labor matters related to HMS and its subsidiaries and their respective employees;
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environmental matters and compliance with environmental laws by HMS and its subsidiaries;
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certain contracts with the U.S. government and the lack of violations thereof;
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the required stockholder approval in order to effect the Merger;
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the absence of certain affiliate transactions;
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HMS's largest customers, vendors and suppliers and the absence of any material claims or disputes between HMS and such counterparties; and
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Accounts payable and accounts receivable of HMS and its subsidiaries.
The
Merger Agreement also contains representations and warranties of Gainwell, Merger Sub and Intermediate Holdco, subject to certain qualifications or exceptions in the Merger Agreement
and the disclosure schedules delivered in connection with the Merger Agreement, as to, among other things:
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the absence of ownership by Gainwell, Intermediate Holdco and Merger Sub and their respective subsidiaries of any capital stock of HMS;
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the financing commitments received by Gainwell, Holdings and Intermediate Holdco, and the sufficiency of the funds committed to be provided
therein;
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the solvency of Gainwell and HMS following the consummation of the Merger;
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the ownership by Gainwell of all of the issued and outstanding capital stock of Merger Sub and the absence of any prior obligations or
liabilities of Merger Sub;
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the absence of arrangements between Gainwell and Merger Sub and HMS's directors, officers and affiliates; and
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the investment intention of Gainwell in acquiring all of the outstanding capital stock of HMS.
Some
of the representations and warranties in the Merger Agreement are qualified by materiality qualifications or a Company Material Adverse Effect.
For
purposes of the Merger Agreement, a "Company Material Adverse Effect" means any event, change, effect, fact, circumstance, development, condition or occurrence
that:
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has had or reasonably would be expected to have a material adverse effect on the results of operations or financial condition of HMS and its
subsidiaries, taken as a whole; provided, however, that in no event would any of the following, alone or in combination will, be deemed to constitute or will be taken into account (including the
effect of any of the following) in determining whether there has been or will be, a "Company Material Adverse Effect":
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any change in applicable law, U.S. generally accepted accounting principles or any applicable accounting standards or any
interpretation thereof (unless it disproportionately impacts HMS and its subsidiaries, taken as a whole, relative to other industry participants);
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general economic, political or business conditions or changes therein, or acts of terrorism, epidemics or pandemics (including
COVID-19), disease outbreaks or changes in geopolitical conditions (including the commencement, continuation or escalation of war, armed hostilities or national or international calamity) or any
worsening of stoppages, shutdowns or habits or behavior of people, or any response to any governmental authority (including
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requirements
for business closures or "sheltering-in-place"), related to any of the foregoing (unless it disproportionately impacts HMS and its subsidiaries, taken as a whole, relative to other
industry participants);
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financial and capital markets conditions, including interest rates and currency exchange rates, and any changes therein (unless it
disproportionately impacts HMS and its subsidiaries, taken as a whole, relative to other industry participants);
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seasonal fluctuations in the business of HMS and its subsidiaries (unless it disproportionately impacts HMS and its subsidiaries,
taken as a whole, relative to other industry participants);
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any change generally affecting the industries in which HMS and its subsidiaries operate (unless it disproportionately impacts HMS
and its subsidiaries, taken as a whole, relative to other industry participants);
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the negotiation, entry into or announcement of the Merger Agreement, the pendency or consummation of the Transactions or the
performance of the Merger Agreement (including (i) the initiation of litigation by any stockholder of HMS (or a derivative or similar claim) to the extent asserting allegations of breach of
fiduciary duty or under securities laws relating to the Merger Agreement or the Transactions or (ii) any termination of, reduction in or similar negative impact on HMS's reputation or
relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of HMS and its subsidiaries, in each case, to the extent resulting from the negotiation,
entry into, announcement, pendency or performance of the Merger Agreement or the identity of the parties to the Merger Agreement or any communication by Gainwell regarding its plans or intentions with
respect to the conduct of the business of HMS and its subsidiaries) (except that this clause does not apply to, and will be disregarded with respect to, references to "Company Material Adverse Effect"
in certain representations and warranties made by HMS in the Merger Agreement);
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the compliance with the terms of the Merger Agreement;
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the taking of any action (or the omission of any action) expressly required or permitted by the Merger Agreement or requested by
Gainwell in writing;
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any act of God or natural disaster (unless it disproportionately impacts HMS and its subsidiaries, taken as a whole, relative to
other industry participants);
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any change in the price or trading volume of HMS's securities or other financial instruments, in and of itself (except that this
clause will not prevent a determination that any change or effect underlying such change has resulted in a Company Material Adverse Effect (to the extent such change or effect is not otherwise
expressly excluded from this definition of Company Material Adverse Effect));
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any failure of HMS and its subsidiaries to meet any internal or published projections, estimates or forecasts (except that this
clause will not prevent a determination that any change or effect underlying such failure to meet projections or forecasts has resulted in a Company Material Adverse Effect (to the extent such change
or effect is not otherwise expressly excluded from this definition of Company Material Adverse Effect)); or
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for purposes of the closing condition requiring that no Company Material Adverse Effect have occurred, any matters set forth in
the disclosure schedules or any matters set forth in HMS's filings with the SEC, the effect of which is reasonably foreseeable and reasonably apparent on the face of such disclosure as of the date
hereof; or
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has, or would reasonably be expected to, prevent or materially impair the ability of HMS to consummate the Transactions.
Other Covenants and Agreements
Access and Information
Subject to certain exceptions and limitations, until the Effective Time, HMS will, and will cause its subsidiaries and their respective
representatives to, (upon reasonable notice and at Gainwell's sole cost and expense) afford Gainwell and its representatives reasonable access, during normal business hours, in such a manner as to not
unreasonably interfere with the operation of the business of HMS and its subsidiaries, to the properties, offices, facilities, books, contracts, commitments, tax returns, records and appropriate
representatives of HMS and its subsidiaries and will furnish such representatives of Gainwell with existing financial and operating data and other information concerning the affairs of HMS and its
subsidiaries as such representatives of Gainwell may reasonably request.
No Solicitation; Acquisition Proposals
From and after the date of the Merger Agreement until the earlier of the Effective Time or the date, if any, on which the Merger Agreement is
validly terminated by its terms, except as expressly permitted pursuant to the Merger Agreement, HMS (a) will (and will cause its subsidiaries and its and their respective directors, officers
and employees to, and will use reasonable best efforts to cause its representatives to) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any
third party with respect to an Acquisition Proposal and (b) will not (and will cause its subsidiaries and its and their respective directors, officers and employees not to, and use reasonable
best efforts to cause its representatives not to): (i) solicit, initiate, seek or knowingly facilitate or encourage any inquiry, discussion, offer or request that constitutes, or would
reasonably be expected to lead to, an Acquisition Proposal, (ii) enter into, continue or otherwise participate in any negotiations or discussions with, or furnish any non-public information
relating to HMS and its subsidiaries to, or afford access to the books or records or officers of HMS and its subsidiaries to, any third party with respect to, or in a manner that would reasonably be
expected to lead to, an Acquisition Proposal (provided HMS may grant a waiver of or terminate any "standstill" or similar agreement or obligation of any third party with respect to HMS and its
subsidiaries to allow such third party to submit an Acquisition Proposal), (iii) approve, endorse, recommend or enter into (or publicly propose to approve, endorse, recommend or enter into) any
letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other definitive agreement with respect to any Acquisition Proposal, or
(iv) take or agree to any of the foregoing actions.
Notwithstanding
the limitations in the preceding paragraph, if HMS receives, at any time following the date of the Merger Agreement and prior to obtaining the Required Company
Stockholder Approval, a written Acquisition Proposal from a third party that did not result from a breach of the non-solicitation and related provisions of the Merger Agreement (other than any breach
that is both immaterial and unintentional) and the Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that (i) such Acquisition Proposal
constitutes or could reasonably be expected to lead to a Superior Proposal, (ii) the failure to take the action described in the immediately following clause (x) or (y) would be
reasonably likely to be inconsistent with the Board's fiduciary duties to HMS's stockholders under applicable law, then HMS and its representatives may (x) furnish non-public information and
afford access to the books or records or officers of HMS and its subsidiaries to such third party and its representatives pursuant to an acceptable confidentiality agreement and (y) engage in
discussions and negotiations with such third party and its affiliates and representatives with respect to the Acquisition Proposal. Any non-public information provided to any third party making an
Acquisition Proposal must also be provided to Gainwell as promptly as reasonably practicable (and, in any event, within 48 hours) after such information is made available to
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third party. In any event, HMS is permitted to contact any third party making an Acquisition Proposal to clarify the terms of such proposal and inform any such third party of HMS's
non-solicitation obligations under the Merger Agreement.
Except
as expressly permitted by the Merger Agreement in respect of a Superior Proposal or an Intervening Event, neither the Board nor any committee thereof will or will propose publicly
to (i) withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Gainwell, its recommendation in favor of adoption of the Merger Agreement, (ii) fail to
include the Board's recommendation in favor of adoption of the Merger Agreement in this proxy statement, (iii) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize,
approve or recommend, any Acquisition Proposal made or received after the date of the Merger Agreement, (iv) fail to reaffirm the Board's recommendation in favor of adoption of the Merger
Agreement within five business days of a request by Gainwell to do so, (v) fail to recommend against any Acquisition Proposal that is a tender or exchange offer by a third party within 10
business days after the commencement of such tender offer or exchange offer (any action described in clauses (i) through (v) of this sentence is referred to as an
"Adverse Recommendation Change") or (vi) cause or permit HMS to enter into any letter of intent, memorandum of understanding, agreement in
principle, acquisition agreement, merger agreement or other definitive agreement with respect to any Acquisition Proposal.
If,
at any time prior to receipt of the Required Company Stockholder Approval and after first complying with the non-solicitation and related provisions of the Merger Agreement, HMS or
the Board receives an Acquisition Proposal that did not result from a breach of the non-solicitation and related provisions of the Merger Agreement (other than any breach that is both immaterial and
unintentional), the Board may effect an Adverse Recommendation Change and validly terminate the Merger Agreement according to the terms of the Merger Agreement while substantially concurrently
entering into a definitive agreement providing for such Superior Proposal (subject to first complying with HMS's obligations in the non-solicitation and related provisions of the Merger Agreement and
satisfaction of HMS's termination fee obligations described below), if (i) the Board determines in good faith, after consultation with HMS's financial outside legal advisors, that such
Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, (ii) at least 72 hours (or, if such 72-hour period does not include at least one
business day, at least one business day after the passage of such 72-hour period) elapse after HMS provides Gainwell with written notice that it intends to effect an Adverse Recommendation Change and
terminate the Merger Agreement, which such written notice includes written notice of the material terms of the Superior Proposal; (iii) in such 72-hour period, HMS and its representatives have
discussed and negotiated with Gainwell in good faith (to the extent Gainwell so desires to negotiate) any proposed modifications to the terms and conditions of the Merger Agreement; and
(iv) following the end of such 72-hour period described in the preceding clause (iii), the Board determines in good faith, after consultation with its financial and outside legal
advisors that the Superior Proposal giving rise to the notice of Adverse Recommendation Change continues to constitute a Superior Proposal and that the failure to make such Adverse Recommendation
Change would still be inconsistent with the Board's fiduciary duties to HMS's stockholders under applicable law.
For
purposes of the Merger Agreement, "Acquisition Proposal" means:
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other than the Transactions or any other proposal or offer from Gainwell or any of its subsidiaries, any proposal or offer from a third party
relating to (i) any acquisition or purchase, in a single transaction or series of related transactions, of (A) twenty percent (20%) or more of the assets of HMS and its subsidiaries,
taken as a whole, or (B) twenty percent (20%) or more of the combined voting power of HMS; (ii) any tender offer or exchange offer that if consummated would result in any person or
"group" (as defined in the Exchange Act) acquiring beneficial ownership of twenty percent (20%) or more of the combined voting power HMS; (iii) any merger, consolidation, amalgamation, joint
venture, business combination,
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recapitalization,
issuance of securities, liquidation, dissolution, share exchange or other transaction involving HMS or any of its subsidiaries in which a third party, a "group" (as defined in the
Exchange Act) or their respective stockholders, if consummated, would acquire twenty percent (20%) or more of the combined voting power of HMS or the surviving entity or the resulting direct or
indirect parent of HMS or such surviving entity; or (iv) any combination of the foregoing.
For
purposes of the Merger Agreement, "Required Company Stockholder Approval" means:
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the affirmative vote of the holders of at least a majority of the outstanding shares of Common Stock entitled to vote in accordance with the
DGCL to adopt the Merger Agreement at the HMS stockholders' meeting.
For
purposes of the Merger Agreement, "Superior Proposal" means:
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an Acquisition Proposal (except the references therein to "twenty percent (20%)" will be replaced by "fifty percent (50%)") made by a third
party (other than resulting from a breach of the non-solicitation provisions of the Merger Agreement (other than any such breach that is immaterial and unintentional)) that the Board determines in
good faith, after consultation with its financial and outside legal advisors, taking into account such factors as the Board considers to be appropriate (including the conditionality, timing and
likelihood of consummation of such proposal), would result in a transaction that is more favorable from a financial perspective to HMS's stockholders than the Transactions (including taking into
account the termination fee payable by HMS, if applicable).
Other
than in connection with a Superior Proposal, prior to obtaining the Required Company Stockholder Approval, the Board may, in response to an Intervening Event (as defined below),
effect an Adverse Recommendation Change if (i) the Board determines in good faith, after consultation with its financial and outside legal advisors, that the failure to take such action would
be reasonably likely to be inconsistent with the Board's fiduciary duties to HMS's stockholders under applicable law, (ii) at least 72 hours (or, if such 72-hour period does not include
at least one business day, at least one business day after the passage of such 72-hour period) elapse after HMS provides Gainwell with written notice that it intends to effect an Adverse
Recommendation Change; (iii) in such 72-hour period, HMS and its representatives have discussed and negotiated with Gainwell in good faith (to the extent Gainwell so desired) any proposed
modifications to the terms and conditions of the Merger Agreement; and (iv) following the end of such 72-hour period described in the preceding clause (iii), the Board determines in good
faith, after consultation with its financial and outside legal advisors and considering and taking into account the terms of any proposed amendment or modification to the Merger Agreement and related
transaction documents made by Gainwell in writing, that the failure to take such action would be inconsistent with the Board's fiduciary duties to the stockholder under applicable law.
For
purposes of the Merger Agreement, "Intervening Event" means:
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any event, change, effect, fact, circumstance, development, condition or occurrence (other than an Acquisition Proposal) that, individually or
in the aggregate, is material to HMS and its subsidiaries, taken as a whole, that was not known or reasonably foreseeable (or the magnitude of which was not known or reasonably foreseeable) to or by
the Board as of the date of the Merger Agreement, and becomes known to or by the Board prior to the receipt of the Required Company Stockholder Approval.
From
the date of the Merger Agreement until the Effective Time or the date, if any, on which the Merger Agreement is validly terminated in accordance with its terms, HMS will
(i) provide Gainwell prompt written notice (and in any event within 48 hours) of the receipt by HMS or any of its representatives of any Acquisition Proposal from any third party or any
request for non-public
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information
or inquiry that could reasonably be expected to lead to an Acquisition Proposal from any third party, and the identity of such third party and the material terms and conditions of such
Acquisition Proposal, and (ii) keep Gainwell reasonably informed in all material respects, on a reasonably current basis, of oral or written communications regarding, and the status and details
(including material amendments or proposed material amendments) of, any such Acquisition Proposal, request or inquiry.
The
Merger Agreement provides that nothing therein will prohibit HMS or the Board, directly or indirectly through its representatives, from (i) taking and disclosing to HMS
stockholders a position contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act (or any similar communication to its stockholders), (ii) making any "stop, look and
listen" communication to its stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act or a factually accurate public statement that describes HMS's receipt of an Acquisition
Proposal and the operation of the Merger Agreement with respect thereto, or (iii) making any other communication to its stockholders if the Board has determined in good faith, after
consultation with its financial outside legal advisors, that the failure to do so would be inconsistent with the Board's fiduciary duties to the stockholders under applicable law.
Special Meeting and Related Actions
Pursuant to the Merger Agreement and in accordance with HMS's organizational documents, applicable law and the rules of the Nasdaq Stock
Market LLC, HMS is required to use reasonable best efforts to, as soon as reasonably practicable following the execution of the Merger Agreement, establish a record date for, duly call, give
notice of, convene and hold a Special Meeting of the stockholders of HMS for the purpose of seeking the Required Company Stockholder Approval. Unless there has been an Adverse Recommendation Change in
compliance with the terms of the Merger Agreement, HMS will use its reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of the Merger Agreement. Unless the Merger
Agreement has been terminated pursuant to its terms, HMS will submit the Merger Agreement to its stockholders for adoption at such meeting, whether or not the Board at any time after the date of the
Merger Agreement has effected an Adverse Recommendation Change.
Employee Matters
For a period of 18 months following the Effective Time, Gainwell, the surviving corporation or any of their respective affiliates will
provide to each continuing employee:
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an annual base salary and incentive compensation opportunities (in each case, other than equity or equity-related compensation incentives) that
are no less favorable, in the aggregate, than those provided to such continuing employee immediately prior to the Effective Time;
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employee and fringe benefits (including vacation/leave, health, welfare and retirement benefits, but excluding for such purposes any equity or
equity-related awards, incentive compensation, severance benefits, defined benefit pension benefits and retiree medical benefits) that are no less favorable than the employee benefits provided to the
employee immediately prior to the Effective Time or those provided to similarly situated employees of Gainwell; and
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severance benefits and protections that are no less favorable than those provided to the employee immediately prior to the Effective Time,
taking into account such employee's additional period of service and increases (but not decreases) in compensation following the Closing.
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As of the Effective Time and thereafter, Gainwell and its affiliates will recognize, or will cause the surviving corporation to recognize, each continuing
employee's years of employment or service with HMS or any of its subsidiaries prior to the Closing for purposes of determining, as applicable, the eligibility for participation and vesting and benefit
accrual of any continuing employee under employee benefit plans maintained by Gainwell, the surviving corporation or their affiliates in which such continuing employees become participants (including
vacation plans or arrangements, 401(k) or other retirement plans and any severance or welfare plans).
With
respect to each health or similar benefit plan maintained by Gainwell, the surviving corporation or any of their respective affiliates for the benefit of continuing employees,
Gainwell will (i) cause to be waived any eligibility waiting periods, actively-at-work requirements and the application of any pre-existing condition limitations under such plan, evidence of
insurability requirements or required physical examinations under such plans, to the extent such were waived or satisfied under the comparable health or welfare benefit plan of HMS or any of its
subsidiaries immediately prior to the Effective Time; and (ii) cause each continuing employee to be given credit under such plan for deductibles, co-payments and other out-of-pocket expenses
incurred by such employee and his or her covered dependents during the plan year that includes the Closing as though such amounts had been paid in accordance with the terms and conditions of the plans
maintained by Gainwell, the surviving
corporation or any of their respective affiliates, as applicable, for the plan year in which the Closing occurs.
The
Merger Agreement also provides that in the event the Closing Date occurs prior to the payment of bonuses under HMS's 2020 bonus program, Gainwell and its affiliates will cause each
continuing employee to be paid such employee's 2020 annual bonus pursuant to the terms and conditions set forth in such program; provided, however, that in the event the Closing Date occurs on or
prior to March 15, 2021, each continuing employee's bonus will be no less than such employee's 2020 target annual bonus. Such annual bonuses will be paid no later than March 15, 2021,
subject to the continuing employee's continued employment through the payment date, except that a continuing employee will remain entitled to such employee's 2020 bonus if such employee is terminated
without cause or resigns for good reason, in either event, prior to the payment date.
In
addition, if requested by Gainwell in writing at least 10 business days prior to the Effective Time, HMS will authorize the full vesting of all benefits under and termination of its
401(k) plan, effective no later than the day immediately preceding the Closing Date. If HMS's 401(k) plan is terminated, Gainwell will maintain a tax-qualified defined contribution retirement plan for
the benefit of continuing employees and will cause such plan to accept direct rollovers of the continuing employees' account balances (including loans).
Efforts to Consummate the Merger
HMS, Gainwell and Merger Sub will each use its reasonable best efforts to (and will cause their respective subsidiaries and affiliates to):
(i) promptly take all appropriate action and do all things necessary, proper or advisable under applicable law (including antitrust law) or otherwise to consummate the Transactions as promptly
as practicable; (ii) obtain from any governmental authority any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by HMS, Gainwell or Merger Sub
or any of their respective subsidiaries or affiliates, or to avoid any action or proceeding by any governmental authority (including those in connection with the antitrust laws), in connection with
the authorization, execution and delivery of the Merger Agreement and the consummation of the Transactions; (iii) as promptly as reasonably practicable after the date of the Merger Agreement
(and in any event within five business days following the date of the Merger Agreement), make all necessary filings, and thereafter make any other required submissions, with respect to the Merger
Agreement required under the HSR Act; (iv) as promptly as reasonably practicable after the date of the Merger Agreement, make all necessary filings, and thereafter make
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any
other required submissions, with respect to the Merger Agreement required under any other applicable antitrust laws; and (v) as promptly as reasonably practicable after the date of the
Merger Agreement, make all necessary filings, and thereafter make any other required submissions, with respect to the Merger Agreement required under any other applicable law.
HMS,
Gainwell and Merger Sub will each use its reasonable best efforts to (and will cause their respective subsidiaries and affiliates to) (i) give the other parties prompt notice
of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any governmental authority with respect to the Merger or any of the other Transactions;
(ii) keep the other parties reasonably informed as to the status of the foregoing; (iii) promptly inform the other parties of any communications to or from any governmental authority
regarding approval of the Merger or any of the other Transactions; (iv) respond as promptly as practicable to additional requests for information; and (v) (1) obtain early termination or
expiration of the waiting period under the HSR Act and such other approvals, consents and clearances as may be necessary, proper or advisable under any applicable law (including any other applicable
antitrust laws) and (2) prevent the entry in any action or proceeding brought by a governmental authority or any other person of any governmental order which would prohibit, make unlawful or
delay the consummation of the Transactions.
In
connection with obtaining any approval or consent related to any applicable law, Gainwell will take, or cause to be taken (including by its subsidiaries and affiliates), any and all
actions necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any proceeding in any forum by or on behalf of any governmental authority or the issuance
of any governmental order that would (or to obtain the agreement or consent of any governmental authority to the Transactions the absence of which would) delay, enjoin, prevent, restrain or otherwise
prohibit the consummation of the Merger. These steps may include (i) proffering and consenting and/or agreeing to a governmental order or other agreement providing for the sale, licensing or
other disposition, or the holding separate of, or other limitations or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business
and (ii) promptly effecting such actions in order to consummate the Transactions on or prior to the End Date.
Conduct of Business Pending the Merger
The Merger Agreement provides that, subject to certain exceptions in the disclosure schedules delivered by HMS in connection with the Merger
Agreement, and except as may be expressly contemplated by the Merger Agreement, required by law or as consented to by Gainwell in writing (such consent not to be unreasonably withheld, conditioned or
delayed for certain of the actions described below), during the period from the date of the Merger Agreement to the Effective
Time (or the date, if any, on which the Merger Agreement is terminated by its terms), (i) HMS will, and will cause each of its subsidiaries to, conduct its operations, in all material respects,
in the ordinary course of business and use commercially reasonable efforts to preserve its goodwill and current relationships with customers, suppliers and other persons having significant business
relationships with HMS and its subsidiaries, and (ii) HMS will not, and will cause each of its subsidiaries not to, directly or indirectly:
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amend its certificate of incorporation, bylaws or similar organizational documents;
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issue, sell, grant options or rights to purchase or receive, pledge, or authorize or propose the issuance, sale, grant of options or rights to
purchase or pledge, or issue any additional shares of, or securities convertible or exchangeable for, or warrants exercisable for, any capital stock or other equity interests of the HMS or its
subsidiaries (except for the exercise of then-outstanding options, vesting of then-outstanding restricted stock unit awards or deferred stock unit awards, or crediting deferred stock unit awards under
HMS's Director Deferred Compensation Plan to effectuate any election made by a director under the terms of such plan);
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make or declare any dividend or distribution to the stockholders of HMS or other holds of equity interests of HMS and its subsidiaries, other
than dividends or distributions among HMS and its wholly owned subsidiaries or among the wholly owned subsidiaries of HMS;
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except in the ordinary course of business, amend, modify, or terminate (excluding any expiration in accordance with its terms), any material
contracts, waive, release or assign any material rights, claims or benefits thereunder, or enter into any material contracts;
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sell, assign, transfer, convey, pledge, lease, exclusively license, encumber or otherwise dispose of any material assets or properties, except
in the ordinary course of business or under HMS's existing credit agreement;
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except as provided in the second bullet point above, split, combine, reclassify, adjust, recapitalize, subdivide, amend the terms of, redeem,
purchase or otherwise acquire any shares of its capital stock or other equity interests or any options, warrants, securities or other rights exercisable for or convertible into any such capital stock
or equity securities;
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except as required by applicable law, pursuant to the terms of an existing employee benefit plan or in the ordinary course of
business:
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grant any retention, change in control, severance or termination pay to any current or former director, officer, employee of HMS
or any of its subsidiaries, other than to employees below the level of Vice President that, individually or in the aggregate, would not result in a material liability to HMS or any of its
subsidiaries;
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enter into any collective bargaining agreement;
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establish or adopt any material employee plan, or materially amend any employee plan;
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increase cash compensation payable to any director, officer, employee or other individual service provider of HMS or any of its
subsidiaries, other than increases in annual base salaries for 2021 (and corresponding target cash bonus opportunities) for employees at the level of Vice President or below that do not exceed, in the
aggregate, 4% of the aggregate annual base salaries for such positions in calendar year 2020;
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hire or promote (or promise to hire or promote) any officer or employee, other than a hire or promotion in the ordinary course of
business of an employee hired or promoted to a position below the level of Senior Vice President;
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hire or terminate (other than for cause, death or disability) the employment of any employee at the level of Senior Vice President
or above; or
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take any action to accelerate the vesting or payment of any compensation or benefits for any current or former employee or other
individual service provider of HMS or any of its subsidiaries that would not otherwise accelerate under the terms of any employee plan in effect prior to the date of the Merger Agreement;
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other than the Merger, merge, consolidate, liquidate, dissolve, restructure, recapitalize, statutorily convert or otherwise reorganize HMS or
any of its subsidiaries with any person (including HMS or any other subsidiary of HMS) or adopt a plan or resolution providing for any such transaction;
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other than in accordance with contracts in effect on the date of the Merger Agreement, make any loans or advances or capital contributions to,
or investments in, any other person (other than for transactions among HMS and its subsidiaries), except for (A) advances to employees or officers of HMS and its subsidiaries for travel and
other reasonable and documented out-of-pocket expenses or (B) for extensions of credit to customers pursuant to the terms of a
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authorize, agree to take, enter into any agreement, or otherwise become obligated, to do any of the forgoing.
Notwithstanding
anything to the contrary in the Merger Agreement: (i) any action taken, or omitted to be taken, by HMS or any of its subsidiaries pursuant to any applicable law or
any other directive, pronouncement or guideline issued by a governmental authority or industry group providing for business closures, "sheltering-in-place" or other restrictions that relates to, or
arises out of, any pandemic (including COVID-19), epidemic or disease outbreak will in no event be deemed to constitute a breach of the covenants described above; and (ii) any action taken, or
omitted to be taken, by HMS or any of its subsidiaries that is responsive to or as a result of any pandemic (including COVID-19), epidemic or disease outbreak, as determined by HMS and its
subsidiaries, will in no event be deemed to constitute a breach of the covenants described above; provided that, in the case of each of the foregoing clauses (i) and (i), HMS will use
reasonable best efforts to consult with Gainwell promptly after taking (or omitting) any such action and consider in good faith any reasonable requests by Gainwell in respect of such actions or
omissions.
Indemnification of Directors and Officers; Insurance
Gainwell has agreed that it will cause the surviving corporation to indemnify and hold harmless each present and former director, officer and
employee of HMS and its subsidiaries for acts or omissions occurring at or prior to the Effective Time to the fullest extent that HMS and its subsidiaries would have been required by applicable law
and their respective organizational documents or indemnification agreements, in effect as of the date of the Merger Agreement, to indemnify such persons.
HMS
may, and if HMS does not, Gainwell will cause the surviving corporation to purchase a pre-paid, non-cancelable six-year "tail" policy, of directors' and officers' liability insurance
with respect to matters existing or occurring at or before the Effective Time.
Miscellaneous Covenants
The Merger Agreement contains additional agreements among HMS, Gainwell and Merger Sub relating to, among other
matters:
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the filing by HMS of this proxy statement with the SEC and cooperation in response to any comments from the SEC with respect to this proxy
statement;
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notification upon the occurrence or non-occurrence of certain matters;
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the coordination of press releases and other public announcements or filings relating to the Transactions;
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actions required to cause the disposition of certain options, awards and securities by individuals subject to the reporting requirements of
Section 16(a) of the Exchange Act;
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actions necessary to cause Merger Sub to perform its obligations under the Merger Agreement;
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the repayment and termination of HMS's existing credit agreement with the lenders party thereto and delivery of a payoff letter in connection
therewith;
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the delisting of HMS and of the shares of Common Stock from the Nasdaq Global Select Market and the deregistration of Common Stock under the
Exchange Act;
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any litigation against HMS and/or its directors or its executive officers relating to or in connection with the Merger Agreement or any of the
Transactions; and
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Gainwell's, Intermediate Holdco's and Merger Sub's efforts to obtain the financing pursuant to the corresponding commitment letters entered
into by Gainwell and its affiliates on the date of the Merger Agreement, as well as HMS's cooperation with Gainwell's efforts.
Conditions to the Merger
The respective obligations of HMS, Gainwell and Merger Sub to consummate the Merger and the other Transactions are subject to the satisfaction
(or written waiver by all parties, if permissible under applicable law) at or prior to the Effective Time of each of the following conditions:
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HMS will have obtained the Required Company Stockholder Approval;
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the expiration or termination of any applicable waiting period (and any extension thereof) under the HSR Act; and
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the consummation of the Merger will not then be enjoined, prevented, restrained, made illegal or otherwise prohibited by any governmental order
(whether preliminary or final) or applicable law.
The
obligations of Gainwell and Merger Sub to consummate the Merger and the other Transactions are subject to the satisfaction (or waiver by each of Gainwell and Merger Sub, if
permissible under applicable law) at or prior to the Closing, of the following additional conditions:
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certain specified fundamental representations and warranties made by HMS will be true and correct in all material respects, as of the date of
the Merger Agreement and as of the Closing Date (as if made on and as of the Closing Date), except for those specified fundamental representations and warranties that speak as of a particular date,
which will be true and correct in all respects as of such date;
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each of the other representations and warranties made by HMS in the Merger Agreement will be true and correct (without giving effect to any
references to any "Company Material Adverse Effect" or other "materiality" qualifications) in all respects as of the date of the Merger Agreement and as of the Closing Date (as if made on and as of
the Closing Date), in each case, (A) except for such representations and warranties that speak as of a particular date, which will be true and correct in all respects as of such date, and
(B) except where the failure to be so true and correct has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
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HMS's performance of and compliance with, in all material respects, each of its covenants and obligations under the Merger Agreement required
to be performed or complied with at or prior to the Closing;
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since the date of the Merger Agreement, there will not have occurred any Company Material Adverse Effect; and
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Gainwell will have received a certificate executed on behalf of HMS by its authorized representative to the effect that the conditions have
described in the four preceding bullet points have been satisfied.
The
obligations of HMS to consummate the Merger and the other Transactions are subject to the satisfaction (or waiver by HMS, if permissible under applicable law), at or prior to the
Closing, of the following additional conditions:
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certain specified fundamental representations and warranties made by Gainwell and Merger Sub will be true and correct in all respects as of the
date of the Merger Agreement and as of the Closing Date (as if made on and as of the Closing Date), except for those specified fundamental
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Termination
The Merger Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the Effective Time
notwithstanding receipt of the Required Company Stockholder Approval (except as expressly noted), only as follows:
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by mutual written agreement of Gainwell and HMS.
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by either Gainwell or HMS:
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if the Closing has not occurred on or before 5:00 p.m. (Eastern Time) on June 20, 2021, which is the End Date,
whether such date is before or after the date of the receipt of Required Company Stockholder Approval, so long as the terminating party's failure to perform or comply with any covenant or obligation
under the Merger Agreement is not the principal cause of, or resulted in, the failure of the Closing to have occurred on or before the End Date;
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if any governmental authority has issued any final and non-appealable order or taken any other action, or any applicable law has
been enacted, in each case, that has the effect of permanently enjoining, preventing, restraining, making illegal or otherwise prohibiting prior to the Effective Time, the consummation of the Merger,
so long as the terminating party's failure to perform any covenant or obligation under the Merger Agreement has not been the principal cause of, or resulted in, the issuance of such order, decree or
ruling; or
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if the Special Meeting (including any final adjournments and postponements thereof) is held and completed and the Merger Agreement
has not been adopted at such Special Meeting (and was not adopted at any final adjournment or postponement thereof) by the Required Company Stockholder Approval.
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by HMS:
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if there is a breach or inaccuracy of, or failure to perform or comply with any representation, warranty, covenant or agreement
set forth in the Merger Agreement on the part of Gainwell or Merger Sub such that either (i) the mutual conditions to the Merger to the benefit of HMS, Gainwell and Merger Sub or
(ii) the conditions to the Merger to the
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benefit
of HMS cannot be satisfied at the Closing and has not been cured by the date that is the earlier of (x) 45 days after HMS notified Gainwell of such breach or inaccuracy and
(y) three business days prior to the End Date; provided, that HMS will only have this termination right so long as there is no breach or inaccuracy of any of its representations, warranties,
covenants or agreements contained in the Merger Agreement;
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before receipt of the Required Company Stockholder Approval, in order to enter into a definitive agreement with respect to a
Superior Proposal, so long as HMS has complied with the non-solicitation and related provisions in the Merger Agreement described in the section entitled "The Merger
AgreementOther Covenants and AgreementsNo Solicitation; Acquisition Proposals" of this proxy statement, HMS enters into such definitive agreement
concurrently with such termination and HMS pays to HMS the termination fee described below within three business days after the date on which HMS enters into such definitive agreement or the date on
which such Acquisition Proposal is consummated; or
-
-
if (i) the mutual conditions to the Merger to the benefit of HMS, Gainwell and Merger Sub and the conditions to the Merger
to the benefit of Gainwell and Merger Sub have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, which were capable of being
satisfied at the Closing), (ii) HMS had confirmed that (x) all of the conditions to the Merger to the benefit of HMS have been satisfied or irrevocably waived (other than conditions that
are to be satisfied by actions taken at the Closing, which were capable of being satisfied at the Closing), and (y) HMS stood ready, willing and able to take such actions required of HMS by the
Merger Agreement to cause the Closing to occur, and (iii) Gainwell failed to consummate the Merger within three business days following the date the Closing should have occurred under the terms
of the Merger Agreement.
-
-
by Gainwell:
-
-
if there is a breach or inaccuracy of, or failure to perform or comply with, any representation, warranty, covenant or agreement
set forth in the Merger Agreement on the part of HMS such that either (i) the mutual conditions to the Merger to the benefit of HMS, Gainwell and Merger Sub or (ii) the conditions to the
Merger to the benefit of Gainwell and Merger Sub cannot be satisfied at the Closing and has not been cured by the date that is the earlier of (x) 45 days after Gainwell notified HMS of
such breach or inaccuracy and (y) three business days prior to the End Date; provided that Gainwell will only have this termination right if there is no breach or inaccuracy of any of the
representations, warranties, covenants or agreements contained in the Merger Agreement on behalf of Gainwell or Merger Sub; or
-
-
if prior to receipt of the Required Company Stockholder Approval, the Board makes an Adverse Recommendation Change.
Effect of Termination
Except as described in the section below entitled "The Merger AgreementTermination Fees and Expense
Reimbursement" of this proxy statement, in the event the Merger Agreement is terminated under the terms thereof (see the section above entitled "The
Merger AgreementTermination" of this proxy statement), the Merger Agreement will become void and have no effect, without any liability on the part of any party
thereto or its respective affiliates, officers, directors or stockholders, other than liability of HMS, Gainwell or Merger Sub for any intentional and willful breach of the Merger Agreement occurring
prior to such termination.
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Termination Fees and Expense Reimbursement
HMS must pay to Gainwell a termination fee of $67,392,807 if, but only if, the Merger Agreement is
terminated:
-
-
by (i) Gainwell or HMS if (x) the Merger has not been consummated on or before the End Date, so long as the terminating party's
failure to perform or comply with any covenant or obligation under the Merger Agreement has not been the principal cause of, or resulted in, the failure of the Merger to have been consummated on or
before the End Date or (y) the Special Meeting (including any final adjournments and postponements thereof) is held and completed and the Merger Agreement has not been adopted at such Special
Meeting (or any final adjournment or postponement thereof) by the Required Company Stockholder Approval or (ii) Gainwell if there is a breach or inaccuracy of, or failure to perform or comply
with any representation, warranty, covenant or agreement set forth in the Merger Agreement on behalf of HMS such that either (A) the mutual conditions to the Merger to the benefit of HMS,
Gainwell and Merger Sub or (B) the conditions to the Merger to the benefit of Gainwell and Merger Sub cannot be satisfied at the Closing and has not been cured by the date that is the earlier
of (x) 45 days after Gainwell notified HMS of such breach or inaccuracy and (y) three business days prior to the End Date, then such termination will become effective only if the
breach or inaccuracy is not cured on or prior to such date, and Gainwell will only have this termination right if there is no breach or inaccuracy of any of the representations, warranties, covenants
or agreements contained in the Merger Agreement on behalf of Gainwell or Merger Sub, and:
-
-
an Acquisition Proposal has been made to HMS after the date of the Merger Agreement and has not been withdrawn prior to the
termination of the Merger Agreement;
-
-
such Acquisition Proposal was publicly disclosed or otherwise made known to the stockholders of the HMS prior to the Special
Meeting; and
-
-
within 12 months of the termination of the Merger Agreement, HMS enters into a definitive agreement with respect to any
Acquisition Proposal (regardless of when made or the counterparty thereto) or consummated any Acquisition Proposal (regardless of when made or the counterparty thereto) (with references to "20%" in
the definition of Acquisition Proposal deemed to be references to "50%" for the purposes of this bullet);
-
-
by Gainwell if prior to receipt of the Required Company Stockholder Approval, the Board makes an Adverse Recommendation Change; or
-
-
by HMS prior to receipt of the Required Company Stockholder Approval, in order to enter into a definitive agreement with respect to a Superior
Proposal, so long as HMS has complied with the non-solicitation and related provisions in the Merger Agreement described in the section entitled "The Merger
AgreementOther Covenants and AgreementsNo Solicitation; Acquisition Proposals" of this proxy statement (such termination conditioned on the payment by
HMS to Gainwell of the termination fee described above within three business days following such termination).
Subject
to the remedies of specific performance described in the Merger Agreement, Gainwell's right to receive from HMS the termination fee referenced above will, solely in circumstances
in which the fee is owed, constitute the sole and exclusive remedy of Gainwell and Merger Sub against HMS and any of HMS's former, current and future affiliates, assignees, stockholders, controlling
persons, directors, officers, employees, agents, attorneys and other representatives (collectively, the "Company Parties") for any breach, loss or
damage suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform thereunder or otherwise, and upon HMS's payment of the termination fee to
Gainwell, no person will have any rights or claims against the Company Parties under the Merger Agreement or otherwise (whether at law or equity, in contract, in tort or
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otherwise)
and none of the Company Parties will have any other liability relating to or arising out of the Merger Agreement or the Transactions.
Gainwell
must pay to HMS a termination fee of $185,330,219 if, but only if, the Merger Agreement is validly terminated:
-
-
by HMS if there is a breach or inaccuracy of, or failure to perform or comply with any representation, warranty, covenant or agreement set
forth in the Merger Agreement on behalf of Gainwell or Merger Sub such that either (i) the mutual conditions to the Merger to the benefit of HMS, Gainwell and Merger Sub or (ii) the
conditions to the Merger to the benefit of HMS cannot be satisfied at the Closing and has not been cured by the date that is the earlier of (x) 45 days after HMS notified Gainwell of
such breach or inaccuracy and (y) three business days prior to the End Date; provided, that HMS will only have this termination right so long as there is no breach or inaccuracy of any of its
representations, warranties, covenants or agreements contained in the Merger Agreement; or
-
-
by HMS if (i) the mutual conditions to the Merger to the benefit of HMS, Gainwell and Merger Sub and the conditions to the Merger to the
benefit of Gainwell and Merger Sub have been satisfied (other than those conditions that by their nature are to be satisfied by actions taken at the Closing, which were capable of being satisfied at
the Closing), (ii) HMS had confirmed that (x) all of the conditions to the Merger to the benefit of HMS have been satisfied or irrevocably waived (other than conditions that are to be
satisfied by actions taken at the Closing, which were capable of being satisfied at the Closing), and (y) HMS stood ready, willing and able to take such actions required of HMS by the Merger
Agreement to cause the Closing to occur, and (iii) Gainwell failed to consummate the Merger within three business days following the date the Closing should have occurred under the terms of the
Merger Agreement.
The
Merger Agreement also provides that, if the Merger Agreement is terminated by HMS (or is otherwise terminable) pursuant to either of the two preceding bullet points, then Gainwell
must pay within five business days following such termination (i) the termination fee and (ii) an amount equal to the amount required to reimburse HMS for all actual and documented
out-of-pocket costs, fees and expenses incurred in connection with the Merger Agreement and the Transactions (inclusive of any amounts payable in connection with HMS's cooperation obligations in
respect of Gainwell's financing efforts under the Merger Agreement) in an amount not to exceed $10 million. In addition, The Veritas Capital Fund VII, L.P. has agreed to guarantee the
obligation of Gainwell to pay any termination fee that may become payable by Gainwell to HMS, as well as Gainwell's obligation to reimburse HMS for certain cooperation costs to be incurred by HMS in
connection with its cooperation with Gainwell's efforts to obtain financing and Gainwell's obligation to reimburse HMS for certain out-of-pocket expenses under certain specified circumstances.
Subject
to (x) Gainwell's indemnification and reimbursement obligations in connection with HMS's cooperation obligations in respect of Gainwell's financing efforts under the
Merger Agreement and (y) an order of specific performance as and only to the extent expressly permitted under the terms of the Merger Agreement, HMS's right to terminate the Merger Agreement
under the terms of the Merger Agreement and receive from Gainwell the termination fee and expense reimbursement referenced above will constitute the sole and exclusive remedy of HMS against
(i) Gainwell, (ii) Merger Sub, (iii) The Veritas Capital Fund VII, L.P., (iv) Intermediate Holdco, (v) the financing sources, (vi) any former, current
or future general or limited partners, members, stockholders, directors, officers, employees, agents, managers, attorneys or other representatives of any person named in the foregoing
clauses (i) through (v), and (vi) any affiliate of any person contemplated by the foregoing clauses (i) through (v) (collectively, the "Gainwell
Parties") for any breach, loss or damage suffered as a result of the failure of the Transactions to be consummated or for a breach or failure to perform thereunder or otherwise
in connection with the Merger Agreement and the Transactions and upon payment of the
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termination
fee referenced above (if payable) no person will have any rights or claims against the Gainwell Parties under the Merger Agreement or otherwise and none of the Gainwell Parties will have
any other liability relating to or arising out of the Merger Agreement or the Transactions.
Expenses Generally
Except as otherwise noted in the section entitled "The Merger AgreementTermination Fees and Expense
Reimbursement" of this proxy statement, whether or not the Merger or the other Transactions are consummated, all expenses incurred in connection with the Merger Agreement and
the Transactions will be paid by the party incurring such expenses.
Specific Performance
The parties to the Merger Agreement are entitled (without proof of actual damages or otherwise and in addition to any other remedy to which they
may be entitled in law or equity) to an injunction, specific performance or other equitable relief to prevent breaches of the Merger Agreement and to enforce specifically the terms and provisions of
the Merger Agreement. HMS's right to specific performance to cause Gainwell to consummate the Merger is subject to, among other things, the availability of certain financing being arranged and
obtained by Gainwell.
Amendments; Waiver
Any provision of the Merger Agreement may be amended or waived by mutual agreement of the parties thereto in writing at any time prior to the
Effective Time, except that (i) no amendment or waiver will be made after receipt of the Required Company Stockholder Approval if such amendment or waiver would require further approval of the
stockholders of HMS subject to the DGCL without such further stockholder approval, and (ii) no amendment, waiver or modification of specified provisions in the Merger Agreement may be made in
any way that is adverse to Gainwell's financing sources without the prior written consent of such financing sources.
Governing Law and Jurisdiction
The Merger Agreement and all legal, administrative and other similar proceedings or actions (whether based on contract, tort or otherwise)
arising out of or relating to the Merger Agreement, the Transactions or the actions of the parties to the Merger Agreement in the negotiation, administration, performance and enforcement of the Merger
Agreement, will be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to principles or rules of conflict of laws that would require or permit the
application of the laws of another jurisdiction, except that any legal, administrative and other similar proceedings or actions of any kind or description, whether in law or in equity, in contract,
tort or otherwise, against Gainwell's financing sources under its financing arrangements, will be governed by, and construed in accordance with, the laws of the State of New York, without giving
effect to any conflict of laws provision thereof that would cause the application of the laws of another jurisdiction.
Each
of the parties to the Merger Agreement, with respect to any legal claim or proceeding arising out of the Merger Agreement or the Transactions, among other things, expressly and
irrevocably agrees to submit, for itself and its property, to the exclusive jurisdiction of the Delaware Court of Chancery and any appellate court therefrom within the State of Delaware (or, if the
Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware) and agrees that it will not bring any claim or proceeding relating
to the Merger Agreement or the Transactions except in such courts, except that any legal claim or proceeding of any kind or nature against Gainwell's financing sources under its financing arrangements
is subject to, and each of the parties to the Merger Agreement submits for itself and its property to, the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New
York, New York and any appellate court thereof.
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FUTURE STOCKHOLDER PROPOSALS
If the Merger is consummated, we will have no public stockholders and there will be no public participation in any future meetings of our
stockholders. However, if the Merger is not consummated, our stockholders will continue to be entitled to attend and participate in meetings of our stockholders.
We
intend to hold an Annual Meeting of Stockholders in 2021 only if the Merger is not consummated. If the Merger is not consummated, please see below for timing of stockholder proposals
relating to our 2021 Annual Meeting of Stockholders.
Stockholders
who intend to have a proposal considered for inclusion in our proxy materials for presentation at our 2021 Annual Meeting of Stockholders pursuant to Rule 14a-8 under
the Exchange
Act must have submitted the proposal to our Secretary at our offices at Irving, Texas in writing not later than December 18, 2020.
Stockholders
intending to present a proposal at the 2021 Annual Meeting of Stockholders, but not to include the proposal in our proxy statement, or to nominate a person for election as a
director, must comply with the requirements set forth in our Bylaws. Our Bylaws require, among other things, that our Secretary receive written notice from the stockholder of record of their intent to
present such proposal or nomination not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the
preceding year's annual meeting. Therefore, we must receive notice of such a proposal or nomination for the 2021 Annual Meeting of Stockholders no earlier than the close of business on
January 27, 2021 and no later than the close of business on February 26, 2021. The notice must contain the information required by the Bylaws, a copy of which is available upon request
to our Secretary. In the event that the date of the 2021 Annual Meeting of Stockholders is more than 20 days before or more than 60 days after May 27, 2021, then our Secretary
must receive such written notice not earlier than the close of business on the 120th day prior to the 2021 Annual Meeting of Stockholders and not later than the close of business on the later
of (i) the 90th day prior to the 2021 Annual Meeting of Stockholders and (ii) the 10th calendar day following the day on which notice of the date of the 2021 Annual Meeting
was mailed or public disclosure of the date of the 2021 Annual Meeting was made, whichever first occurs. SEC rules permit management to vote proxies in its discretion in certain cases if the
stockholder does not comply with this deadline and, in certain other cases, notwithstanding the stockholder's compliance with this deadline.
We
reserve the right to reject, rule out of order, or take other appropriate action with respect to any proposal that does not comply with these or other applicable requirements.
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WHERE YOU CAN FIND MORE INFORMATION
The SEC allows us to "incorporate by reference" information into this proxy statement, which means that we can disclose important information to
you by referring you to other documents filed separately with the SEC. The information incorporated by reference is deemed to be part of this proxy statement, except for any information superseded by
information in this proxy statement or incorporated by reference subsequent to the date of this proxy statement. This proxy statement incorporates by reference the documents set forth below that we
have previously filed with the SEC. These documents contain important information about us and our financial condition and are incorporated by reference into this proxy statement.
The
following HMS filings with the SEC are incorporated by reference:
-
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HMS's Annual Report on Form 10-K for the fiscal year ended December 31, 2019, filed with the SEC on February 24, 2020;
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HMS's Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2020, June 30, 2020 and
September 30, 2020 filed with the SEC on May 11, 2020, August 10, 2020 and November 9, 2020, respectively; and
-
-
HMS's Current Reports on Form 8-K filed with the SEC on June 1, 2020, December 21, 2020 and December 28, 2020
(other than the portions of such documents not deemed to be filed).
We
also incorporate by reference into this proxy statement additional documents that we may file with the SEC between the date of this proxy statement and the earlier of the date of the
Special Meeting or the termination of the Merger Agreement. These documents include periodic reports, such as Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q, as well as
Current Reports on Form 8-K and proxy soliciting materials. The information provided on our website is not part of this proxy statement and therefore is not incorporated by reference herein.
Copies
of any reports, statements or other information that we file with the SEC are available at www.sec.gov. In addition, stockholders may obtain free copies of the documents filed
with the SEC by HMS through the Investor Relations section of our website, www.HMS.com, and the "InvestorsFinancials and Filings" section therein.
You may obtain any of the documents we file with the SEC, without charge, by requesting them in writing or by telephone from us at the following
address:
HMS
Holdings Corp.
Attention: Investor Relations
5615 High Point Drive
Irving, Texas 75038
Telephone: 214.453.3000
If
you would like to request documents from us, please do so by
[ · ], 2021, to receive them before the Special Meeting. Please note that all of our
documents that we file with the SEC are also promptly available through the Investor Relations section of our website, www.HMS.com, and the "InvestorsSEC Filings" section therein. The
information included on our website is not incorporated by reference into this proxy statement.
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MISCELLANEOUS
HMS has supplied all information relating to HMS, and Gainwell has supplied (and HMS has not independently verified) all of the information
relating to Gainwell, Merger Sub and Intermediate Holdco contained in the sections entitled "SummaryThe Companies" and
"The Companies" of this proxy statement.
You
should rely only on the information contained in this proxy statement, the appendices to this proxy statement and the documents we refer to in this proxy statement to vote on the
Merger. We have not authorized anyone to provide you with information that is different from what is contained in this proxy statement. This proxy statement is dated
[ · ], 2021. You should not assume that the information contained in this proxy
statement is accurate as of any date other than that date (or as of an earlier date if so indicated in this proxy statement) and the mailing of this proxy statement to stockholders does not create any
implication to the contrary. This proxy statement does not constitute a solicitation of a proxy in any jurisdiction where, or to or from any person to whom, it is unlawful to make a proxy
solicitation.
Your
vote is very important. Please promptly vote your shares by completing, signing, dating and returning your proxy card or by submitting your proxy over the Internet or by telephone
as described on your proxy card or voting instruction form.
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Appendix A
Execution Version
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GAINWELL ACQUISITION CORP.,
MUSTANG MERGERCO INC.,
GAINWELL INTERMEDIATE HOLDING CORP.
AND
HMS HOLDINGS CORP.
December 20, 2020
TABLE OF CONTENTS
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Exhibit A
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Form of Certificate of Merger
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Schedule A
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Antitrust Approvals
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A-iii
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 20, 2020, is
entered into by and among HMS Holdings Corp., a Delaware corporation (the "Company"), Gainwell Acquisition Corp., a Delaware corporation
("Parent"), Mustang MergerCo Inc., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and Gainwell Intermediate Holding Corp., a Delaware corporation ("Intermediate Holdco").
RECITALS
WHEREAS, the board of directors of Merger Sub and the board of directors of the Company (the "Company
Board") have approved and declared advisable and in the best interests of each corporation and its respective stockholders, and the board of directors of Parent has approved
and declared advisable and in the best interests of its stockholders, this Agreement and the transactions contemplated hereby, including the merger of Merger Sub with and into the Company, with the
Company as the surviving corporation (the "Merger"), as more fully provided in this Agreement and in accordance with the General Corporation Law of the
State of Delaware (the "DGCL");
WHEREAS,
Parent, as the sole stockholder of Merger Sub, has approved the adoption of this Agreement and the transactions contemplated hereby, including the Merger;
WHEREAS,
the Company Board has unanimously resolved to recommend that the Company's stockholders approve the adoption of this Agreement and the transactions contemplated hereby,
including the Merger;
WHEREAS,
as an inducement to the Company's willingness to enter into this Agreement, concurrently with the execution and delivery of this Agreement, The Veritas Capital Fund
VII, L.P., a Delaware limited partnership (the "Guarantor"), has delivered to the Company a guaranty (the
"Guaranty"), pursuant to which the Guarantor has agreed to guarantee certain of the obligations of Parent and Merger Sub hereunder; and
WHEREAS,
Parent, Merger Sub and the Company desire to make certain representations, warranties and agreements in connection with the Merger and also to prescribe certain conditions to
the Merger.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, as well as
other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Parent, Merger Sub and the Company hereby agree as
follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Definitions.
(a) As
used in this Agreement, the following terms have the following meanings:
"Acceptable Confidentiality Agreement" means a confidentiality agreement that contains confidentiality terms no less favorable to the
Company in the aggregate than those contained in the Confidentiality Agreement; provided, however, that
such agreement need not contain a standstill.
"Acquired Companies" means, collectively, the Company and each of its Subsidiaries.
"Acquisition Proposal" means, other than the Transactions or any other proposal or offer from Parent or any of its Subsidiaries, any
proposal or offer from a Third Party relating to (a) any
A-1
acquisition
or purchase, in a single transaction or series of related transactions, of (i) twenty percent (20%) or more of the assets of the Acquired Companies, taken as a whole, or
(ii) twenty percent (20%) or more of the combined voting power of the Company; (b) any tender offer or exchange offer that if consummated would result in any Person or "group" (as
defined in the Exchange Act) acquiring beneficial ownership of twenty percent (20%) or more of the combined voting power of the Company; (c) any merger, consolidation, amalgamation, joint
venture, business combination, recapitalization, issuance of securities, liquidation, dissolution, share exchange or other transaction involving the Company or any of its Subsidiaries in which a Third
Party, a "group" (as defined in the Exchange Act) or their respective shareholders, if consummated, would acquire twenty percent (20%) or more of the combined voting power of the Company or the
surviving entity or the resulting direct or indirect parent of the Company or such surviving entity; or (d) any combination of the foregoing.
"Affiliate" means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control
with such first-mentioned Person. For purposes of this definition, "control," when used with respect to any specified Person, means the power to direct or cause the direction of the management and
policies of such Person, directly or indirectly, whether through ownership of voting securities or by contract or otherwise, and the terms "controlling" and "controlled by" have correlative meanings
to the foregoing.
"Anti-Corruption Laws" means all Applicable Laws relating to the prevention of corruption, bribery and money laundering, including (in
each case, as applicable) the U.S. Foreign Corrupt Practices Act of 1977, as amended; the Organization For Economic Co-operation and Development Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions and related implementing legislation; the relevant common law or legislation in England and Wales relating to bribery and/or corruption, including, the
Public Bodies Corrupt Practices Act 1889; the Prevention of Corruption Act 1906 as supplemented by the Prevention of Corruption Act 1916 and the Anti-Terrorism, Crime and Security Act 2001; the
Bribery Act 2010; the Proceeds of Crime Act 2002; and any applicable anti-bribery or anti-corruption related provisions in criminal and anti-competition
laws and/or anti-bribery, anti-corruption and/or anti-money laundering laws of any jurisdiction in which the Company or any of its Subsidiaries operates or any successor statute, rules or regulations
thereto.
"Antitrust Authorities" means the Antitrust Division of the United States Department of Justice, the United States Federal Trade
Commission or the antitrust or competition law authorities of any other jurisdiction (whether U.S., foreign or multinational).
"Applicable Law" means, with respect to any Person, any Law or Governmental Order, in each case, that is binding upon or applicable to
such Person, as amended, unless expressly specified otherwise.
"Business Day" means any day that is not a Saturday, a Sunday or other day on which the Federal Reserve Bank of New York is closed.
"Code" means the Internal Revenue Code of 1986, as amended, or any successor statute, rules or regulations thereto.
"Commitment Letters" means the Debt Commitment Letter and the Intermediate Holdco Commitment Letter.
"Company Balance Sheet Date" means December 31, 2019.
"Company Capital Stock" means the Company Common Stock and the Company Preferred Stock.
"Company Common Stock" means the common stock, $0.01 par value per share, of the Company.
"Company Compensatory Award" means each Company Option, Company RSU Award and a Company DSU Award.
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"Company Credit Agreement" means that certain Amended and Restated Credit Agreement, dated as of May 3, 2013, as amended by
Amendment No. 1, dated as of March 8, 2017, and Amendment No. 2, dated as of December 19, 2017, among the Company, as borrower, the guarantors party thereto, the lenders
party thereto, and Citibank, N.A., as administrative agent.
"Company Disclosure Letter" means the disclosure letter delivered by the Company to Parent and Merger Sub in connection with the execution
of this Agreement.
"Company DSU Award" means deferred stock units with respect to shares of Company Common Stock that are outstanding under the Company's
Director Deferred Compensation Plan.
"Company IP" means all Intellectual Property Rights owned or purported to be owned by any Acquired Company.
"Company IT Systems" means IT Systems that are owned by or are licensed or leased to an Acquired Company for use in the conduct of its
business.
"Company Material Adverse Effect" means any event, change, effect, fact, circumstance, development, condition or occurrence (each an
"Effect") that (a) has, or would reasonably be expected to, prevent or materially impair the ability of the Company to consummate the
Transactions, or (b) has had, or would reasonably be expected to have a material adverse effect on the results of operations or financial condition of the Acquired Companies, taken as a whole; provided, however, that, for purposes of this clause (b), in no event would any of the following,
alone or in combination, be deemed to constitute, nor shall any of the following (including the Effect of any of the following) be taken into account in determining whether there has been or will be,
a "Company Material Adverse Effect": (i) any change in Applicable Law, GAAP or any applicable accounting standards or any interpretation thereof; (ii) general economic, political or
business conditions or changes therein, or acts of terrorism, epidemics or pandemics (including COVID-19), disease outbreaks or changes in geopolitical conditions (including commencement, continuation
or escalation of war, armed hostilities or national or international calamity) or any escalation or worsening relating to the foregoing, including any escalation or worsening of stoppages, shutdowns
or habits or behavior of people, or any response of any Governmental Authority (including requirements for business closures or "sheltering-in-place"), related to any of the foregoing;
(iii) financial and capital markets conditions, including interest rates and currency exchange rates, and any changes therein; (iv) seasonal fluctuations in the business of the Acquired
Companies; (v) any change generally affecting the industries in which the Acquired Companies operate; (vi) the negotiation, entry into or announcement of this Agreement, the pendency or
consummation of the Transactions or the performance of this Agreement (including (A) the initiation of litigation by any stockholder of the Company (or a derivative or similar claim) to the
extent asserting allegations of breach of fiduciary duty or under securities laws relating to this Agreement or the Transactions or (B) any termination of, reduction in or similar negative
impact on the Company's reputation or relationships, contractual or otherwise, with any customers, suppliers, distributors, partners or employees of the Acquired Companies, in each case, to the extent
resulting from the negotiation, entry into, announcement, pendency or performance of this Agreement or identity of the
parties to this Agreement or any communication by Parent regarding the plans or intentions of Parent with respect to the conduct of business of the Acquired Companies)
(provided that this clause (vi) shall not apply to, and shall be disregarded with respect to, references to "Company Material Adverse Effect" in
representations and warranties made by the Company in Section 4.02, Section 4.03, Section 4.04 and Section 4.16(h)); (vii) the compliance with the terms of this
Agreement; (viii) the taking of any action (or the omission of any action) expressly required or permitted by this Agreement or requested by Parent in writing; (ix) any act of God or
natural disaster; (x) any change in the price or trading volume of the Company's securities or other financial instruments, in and of itself
(provided that this clause (x) shall not prevent a determination that any change or Effect underlying such change has resulted in a Company
Material Adverse Effect (to the extent such change or Effect is
A-3
not
otherwise excluded from this definition of Company Material Adverse Effect)); (xi) any failure of the Acquired Companies to meet any internal or published projections, estimates or
forecasts (provided that this clause (xi) shall not prevent a determination that any change or Effect underlying such failure to meet projections
or forecasts has resulted in a Company Material Adverse Effect (to the extent such change or Effect is not otherwise excluded from this definition of Company Material Adverse Effect)); or
(xii) for purposes of Section 8.02(c), (A) any matters set forth in the Company Disclosure Letter or (B) subject to the
preamble to Article IV, any matters set forth in the Company SEC Documents that modifies a representation or warranty set forth in Article IV,
solely to the extent the effect of which is reasonably foreseeable and reasonably apparent on the face of such disclosure as of the
date hereof; provided, further, that in the case of the foregoing clauses (i), (ii), (iii), (iv),
(v) and (ix), except to the extent that such matters disproportionately impact the Acquired Companies (taken as a whole) relative to other businesses in the industries in which the Acquired
Companies operate.
"Company Option" means an option to purchase Company Common Stock.
"Company Preferred Stock" means the preferred stock, $0.01 par value per share, of the Company.
"Company RSU Award" means an award of restricted stock units, with respect to shares of Company Common Stock that are subject to vesting
or forfeiture (including performance-vesting conditions).
"Company Software" means Software included in the Company IP.
"Company Stock Plans" means the Company's Director Deferred Compensation Plan, Fourth Amended and Restated Stock Plan, 2016 Omnibus
Incentive Plan and 2019 Omnibus Incentive Plan, each as
amended from time to time, and any other stock options plans or other equity or equity-related plans of the Company.
"Company Termination Fee" means an amount in cash equal to $67,392,807.
"Confidentiality Agreement" means that certain Confidentiality Agreement, dated as of October 9, 2020 between Gainwell Acquisition
Corp. and the Company.
"Continuing Employees" means all employees of the Company or any of its Subsidiaries who, as of the Closing, continue their employment
with Parent, the Surviving Corporation or any of their Subsidiaries.
"Contract" means any legally binding contracts, agreements, subcontracts, arrangements, understandings, leases, subleases, licenses,
sublicenses, letter contracts or other commitments or undertakings.
"Debt Commitment Letter" means the debt commitment letter, dated as of the date hereof, among Holdings, Parent and the Financing Sources
party thereto (including all exhibits, annexes, schedules, term sheets and executed fee letters related thereto (which fee letters may be redacted to omit fee amounts, pricing terms, pricing caps and
certain other economic terms that do not impact the amount or availability of the Debt Financing or expand the conditions to obtaining the Debt Financing on the Closing Date), attached thereto or
contemplated thereby), dated as of the date hereof, as the same may be amended, amended and restated, supplemented, modified or replaced in compliance with this Agreement (including in connection with
any Second Lien Giveaway or Replacement Commitment Facility), pursuant to which the Financing Sources party thereto have agreed, subject only to the applicable Financing Conditions, to provide or
cause to be provided the Debt Financing.
"Debt Financing" means the debt financing incurred or intended to be incurred pursuant to the Debt Commitment Letter (including
(a) any "market flex" terms in the related fee letters and (b) any Second Lien Giveaway and/or any Replacement Commitment Facility).
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"Debt Financing Documents" means any credit agreements, guarantees, pledge and security documents, other similar definitive financing
documents and any customary certificates (including a customary
solvency certificate) (including, in each case, any schedules and exhibits thereto), contemplated by the Debt Financing.
"Environmental Laws" means any and all applicable foreign, U.S. federal, state or local Laws (a) relating to the protection of
human health, the environment, natural resources or occupational health and safety; or (b) imposing liability for, or standards of conduct concerning, the generation, treatment, storage,
Release, cleanup, remediation, transport, disposal or handling of Hazardous Materials, in each case, as in effect on and as interpreted as of the date hereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder.
"ERISA Affiliate" of any entity means any other entity which, together with such entity, would be treated as a single employer under
Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes the first entity, trade or business.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or any
successor statute, rules or regulations thereto.
"Financing" means (a) the Debt Financing (including, for the avoidance of doubt, any debt financing incurred pursuant to any Second
Lien Giveaway and/or any Replacement Commitment Facility), (b) the Preferred Equity Financing and (c) the Holdco PIK Financing.
"Financing Conditions" means (a) with respect to the Debt Financing, the conditions precedent set forth in Annex III of the
Debt Commitment Letter and (b) with respect to the Preferred Equity Financing and the Holdco PIK Financing, the conditions precedent set forth in Exhibit C of the Intermediate Holdco
Commitment Letter.
"Financing Documents" means, collectively, (a) the Debt Financing Documents, (b) the Preferred Equity Financing Documents
and (c) the Holdco PIK Financing Documents.
"Financing Related Persons" means, collectively, (a) the Financing Sources, (b) any Affiliates of the Financing Sources,
(c) the respective officers, directors, employees, managers, managing members, general partners, limited partners, managed accounts, agents, advisors (including financial, tax and legal
advisors) and other Representatives of the Persons described in the foregoing clauses (a) and (b), and (d) the successors and permitted assigns of any of the foregoing.
"Financing Sources" means the Persons that are party to, and have committed to provide or arrange all or any part of the applicable
Financing pursuant to the applicable Commitment Letters and/or any additional or replacement lender, investor, arranger, bookrunner, syndication agent or other entity acting in a similar capacity for
the applicable Financing (including, for the avoidance of doubt, any Person providing commitments for the Second Lien Giveaway and/or any Replacement Commitment Facility but excluding, for the
avoidance of doubt, Holdings, Parent, Merger Sub and Intermediate Holdco).
"GAAP" means U.S. generally accepted accounting principles, consistently applied.
"Government Bid" means (i) any outstanding bid, offer or proposal that, if accepted or successful, would reasonably be expected to
result in a Government Contract and (ii) any bid, offer or proposal that no longer remains outstanding but that was the subject of, or did result in, a Government Contract.
"Government Contract" means any prime contract, subcontract, blanket purchase agreement, joint venture agreement, basic ordering
agreement, pricing agreement, letter contract, task order, delivery order, purchase order or any other Contract, between any Acquired Company, on the one hand, and,
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on
the other hand, (i) any Governmental Authority, (ii) any prime contractor of a Governmental Authority in its capacity as a prime contractor or (iii) any subcontractor at any
tier with respect to any Contract described in clauses (i) and (ii), on the other hand. Government Contract does not include any Contract with a Medicaid managed care organization, or Medicare
Advantage organization administering a Federal Employees Health Benefits plan. A task, purchase or delivery order under a Government Contract or any amendment, supplement, change order, or
modification to a Government Contract shall not constitute a separate Government Contract for purposes of this definition, but shall be part of the Government Contract to which it relates.
"Governmental Authority" means any federal, state, county, provincial, municipal, local, supranational or foreign government, governmental
authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, quasi-governmental authority, court or tribunal, or any self-regulatory
organization (including Nasdaq).
"Governmental Order" means any order, judgment, injunction, decree, writ, ruling, stipulation, decision, verdict, determination or award,
in each case, made, issued, promulgated or entered, whether
preliminary or final, by or with any Governmental Authority (including any judicial or administrative directives).
"Hazardous Materials" means any substance, pollutants, contaminants and hazardous or toxic materials, substances or wastes that are
registered, listed, defined, designated or classified as hazardous, toxic or otherwise harmful under any Environmental Law, including asbestos, asbestos containing materials, polychlorinated
biphenyls, polyfluoroalkyl substances, petroleum or petroleum products, radioactive materials and microbial matter, urea formaldehyde and radon gas.
"Holdco PIK Financing" means the PIK financing to be provided pursuant to the Intermediate Holdco Commitment Letter.
"Holdco PIK Financing Documents" means the definitive financing documents, pledge and security documents and any customary certificates
(including a customary solvency certificate) (including, in each case, any schedules and exhibits thereto), contemplated by the Holdco PIK Financing.
"Holdings" means Gainwell Holding Corp., a Delaware corporation and wholly-owned subsidiary of Intermediate Holdco.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder, or any successor statute, rules or regulations thereto.
"Indebtedness" means, with respect to any Person and as of any time of determination (and without duplication), all obligations
(including, as applicable, the principal and accrued and unpaid interest thereon, any prepayment, redemption fees, premiums, penalties and any other amounts payable that would arise at the Closing as
a result of the discharge of the obligations, including, in each case, any such amounts set forth in the applicable Payoff Letter) of such Person consisting of (a) indebtedness for borrowed
money; (b) evidenced by bonds, notes, debentures, or similar instruments (but excluding performance bonds, surety bonds and similar instruments); (c) all obligations under leases
required to be treated as capital leases in accordance with GAAP; (d) earn-outs or the deferred purchase price of property, goods or services (but excluding trade payables, accrued expenses and
accruals incurred in the ordinary course of business); (e) all indebtedness secured by a Lien (other than any Permitted Lien) on property or assets owned or acquired by such Person, whether or
not the indebtedness secured thereby has been assumed; (f) reimbursement obligations with respect to letters of credit, bankers' acceptances, performance bonds, surety bonds or similar
obligations, in each case solely to the extent drawn; (g) commitments to repurchase equity securities of such Person; (h) any obligations in respect of currency or interest rate swaps,
collars, caps, hedges, or similar arrangements; or (i) obligations of such Person or such Person's Subsidiaries to guarantee any of the foregoing types
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of
obligations on behalf of any other Person (other than, in each case, any such obligations solely between or among such Person and its Subsidiaries).
"Intellectual Property Rights" means all United States, foreign, and international rights of the following types, which may exist or be
created under the laws of any jurisdiction in the world: (a) patents, patent applications, including provisionals, continuations, continuations-in-part, divisionals, reissues, re-examinations,
substitutions and extensions thereof, including foreign equivalents; (b) trademarks, trade names, logos, service marks and other rights in source identifiers, and all applications,
registrations and renewals therefor, together with all goodwill associated therewith; (c) copyrights and other works of authorship, and all applications, registrations and renewals therefor;
(d) Software; and (e) trade secrets, know-how and other confidential information or proprietary information.
"Intermediate Holdco Commitment Letter" means the commitment letter, dated as of the date hereof, among Intermediate Holdco and the
Financing Sources party thereto (including all exhibits, annexes, schedules, term sheets and executed fee letters related thereto (which fee letters may be redacted to omit fee amounts, pricing terms,
pricing caps and certain other economic terms that do not impact the amount or availability of the Preferred Equity Financing or the Holdco PIK Financing or expand the conditions to obtaining the
Preferred Equity Financing or the Holdco PIK Financing on the Closing Date), attached thereto or contemplated thereby), as the same may be amended, amended and restated, supplemented, modified or
replaced in compliance with this Agreement, pursuant to which the parties thereto have agreed, subject only to the applicable Financing Conditions, to provide or cause to be provided the Preferred
Equity Financing and the Holdco PIK Financing.
"Intervening Event" means any Effect (other than an Acquisition Proposal) that, individually or in the aggregate, is material to the
Acquired Companies, taken as a whole, that is not known or reasonably foreseeable (or the magnitude of which is not known or reasonably foreseeable) to or by the Company Board as of the date of this
Agreement, which Effect (or the magnitude of which) becomes known to or by the Company Board prior to adoption of this Agreement by the Required Company Stockholder Approval.
"IRS" means the United States Internal Revenue Service.
"IT Systems" means devices, computers, Software, hardware, servers, networks, systems, workstations, routers, hubs, circuits, switches,
telecommunication systems, data communication lines, and other information technology equipment and assets and related infrastructure or facilities.
"Knowledge" means, (a) with respect to the Company, the actual knowledge, after reasonable inquiry, of each of Maria Perrin, Doug
Williams, Jacob Sims (in each case of the foregoing individuals, solely with respect to the representations and warranties contained in Article IV that are relevant to their respective roles at the
Company), Jeffrey Sherman, Meredith Bjorck (for purposes of Section 4.09(a)(xiv), the reasonable inquiry of Meredith Bjorck shall be deemed to include reasonable inquiry of Bill Lucia), David
Alexander and
Greg Aunan, and (b) with respect to Intermediate Holdco, Parent and Merger Sub, the actual knowledge, after reasonable inquiry, of each of Jamie Dimitri, Jay Logonsz and Sas Mukherjee.
"Law" means any and all domestic (federal, state or local), supranational or foreign laws, statutes, codes, rules, regulations,
ordinances, treaties, orders, judgments or decrees, in each case, promulgated by any Governmental Authority.
"Leased Real Property" means real property leased, licensed or subleased by an Acquired Company (as lesser, lessee, licensor or licensee).
"Lender Protective Provisions" means Sections 9.03(e), 10.04, 10.06,
10.07, 10.08, 10.09, 10.11 and 10.13.
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"Lien" means any mortgage, easement, deed of trust, pledge, hypothecation, encumbrance, security interest, charge, claim, option or other
similar lien or restriction.
"Most Recent Balance Sheet" means the consolidated balance sheet of the Company as of December 31, 2019, which is included in the
Company's Report on Form 10-K filed with the SEC for the fiscal year ended December 31, 2019.
"Nasdaq" means the Nasdaq Stock Market LLC or any successor exchange.
"New Company RSU Award" means a Company RSU Award that, to the extent permitted and in accordance with Section 6.01(a), is granted or awarded between the date of
this Agreement and the earlier of the Effective Time or the termination of this Agreement in accordance
with Section 6.01(a).
"Open Source Software" shall mean any Software (in source or object code form) that is subject to (a) a license commonly referred
to as an "open source" or "free software" license (including any software licensed under the GNU General Public License, GNU Lesser General Public License, BSD License, or Apache Software License, or
any other public source code license arrangement or any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org or any other public source code
license arrangement or any license defined as an open source license by the Open Source Initiative as set forth on www.opensource.org) or (b) any other license or other agreement that requires,
as a condition of the use, modification or distribution of Software subject to such license or agreement, that such Software or other Software linked with, called by, combined or distributed with such
Software be (i) disclosed, distributed, made available, offered, licensed or delivered in source code form, (ii) licensed for the purpose of making derivative works,
(iii) licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind, or (iv) redistributable at no charge.
"Owned Real Property" means each parcel of real property owned by an Acquired Company.
"Parent Parties" means, collectively, (a) Parent; (b) Merger Sub; (c) the Guarantor; (d) Intermediate Holdco;
(e) the Financing Related Persons; (f) any former, current or future general or limited partners, members, stockholders, directors, officers, employees, agents, managers, attorneys or
other representatives of any Person named in the foregoing clauses (a) through (e); and (g) any Affiliate of any Person contemplated by the foregoing clauses (a) through (f).
"Parent Termination Fee" means an amount in cash equal to $185,330,219.
"Payoff Letter" means, with respect to the Company Credit Agreement, a customary payoff letter executed by the lenders (or their duly
authorized agent or representative) thereunder, which states the aggregate amount of Indebtedness thereunder as of the date specified in such letter (together with a customary per diem for payment
following such date) and the instructions for payment of the same to discharge such obligations under such Indebtedness, which letter shall also state that, upon receipt of payment of such amount
(together with the per diem, to the extent applicable) in cash in immediately available funds (A) all obligations and liabilities under the Company Credit Agreement (other than those
liabilities that expressly survive the termination thereof) shall be satisfied and all commitments under the Company Credit Agreement shall be terminated (to the extent applicable, other than any
issued and outstanding letters of credit thereunder for which alternative arrangements may have been agreed) and (B) all Liens on the capital stock, property and assets of the Company and its
Subsidiaries securing such Indebtedness (to the extent applicable, other than any cash collateral or other arrangements to backstop any letters of credit issued and outstanding under the Company
Credit Agreement that are not terminated at Closing) shall be released and that the Company and its Subsidiaries and/or Parent or any of its Affiliates are authorized to file such documents and
instruments as are necessary to evidence such release.
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"Permits" means all licenses, permits, registrations, accreditations, certifications, qualifications, consents, approvals, exemptions,
franchises, ordinances, or other similar authorizations required, issued or otherwise granted by any Governmental Authority or accrediting body.
"Permitted Liens" means (a) Liens for Taxes not yet delinquent or that are being contested in good faith by appropriate proceedings
and with respect to which adequate reserves have been established on the books of the Acquired Companies to the extent required by GAAP, (b) Liens in favor of vendors, carriers, warehousemen,
repairmen, mechanics, workmen, materialmen, construction or similar Liens or encumbrances arising by operation of Applicable Law arising in the ordinary course of business, (c) Liens incurred
or deposits made in the ordinary course of business in connection with workers' compensation, unemployment insurance or other types of social security or foreign equivalents or any other similar
obligations, (d) zoning, building codes, and other land use Laws regulating the use or occupancy of Real Property or the activities conducted thereon that are imposed by any Governmental
Authority having jurisdiction over such Real Property and that (i) are not violated by the current use and operation of such Real Property or the operation of the business of the Acquired
Companies and (ii) do not, and would not reasonably be expected to, individually or in the aggregate, materially impair the intended use of, such Real Property, (e) with respect to Real
Property, (A) Liens disclosed on existing title reports or existing surveys made available to Parent, (B) Liens encumbering the interest of the fee owner or any superior lessor,
sublessor or sublicensor, and (C) any other non-monetary Liens disclosed to Parent that, in the case of each of the foregoing clauses (A) through (C), would not, and could not reasonably
be expected to, individually or in the aggregate, interfere materially with the ordinary conduct of the business of the Acquired Companies at, or materially detract from the value of, such Real
Property, (f) Liens to be released on or prior to the Closing Date, (g) Liens described in Section 1.01(a) to the Company
Disclosure Letter, and (h) licenses of Intellectual Property Rights entered into in the ordinary course of business.
"Person" means any individual, firm, corporation, partnership, limited liability company, incorporated or unincorporated association,
joint venture, joint stock company, governmental agency or instrumentality or other entity of any kind.
"Preferred Equity Financing" means the preferred equity financing to be provided pursuant to the Intermediate Holdco Commitment Letter.
"Preferred Equity Financing Documents" means the definitive financing documents and any customary certificates (including a customary
solvency certificate) (including, in each case, any schedules and exhibits thereto), contemplated by the Preferred Equity Financing.
"Principal" means any officer, director, owner, partner, or a person having primary management or supervisory responsibilities within a
business, as defined in Federal Acquisition Regulation 52.209-5.
"Proceeding" means any claim, causes of action, action, suit, claim, complaint, demand, hearing, enforcement, assessment, arbitration,
lawsuit or inquiry, or any proceeding or investigation, by or before any Governmental Authority.
"Real Property" means, collectively, the Leased Real Property and the Owned Real Property.
"Registered IP" means all Company IP that is registered, recorded, or filed with any Governmental Authority or a domain name registrar.
"Release" means any emission, spill, seepage, leak, escape, leaching, discharge, injection, pumping, pouring, emptying, dumping, disposal
or release of Hazardous Materials from any source into or upon the environment.
"Replacement Commitment Facility" has the meaning set forth in the Debt Commitment Letter as in effect on the date of this Agreement.
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"Representatives" means, with respect to any Person, (a) such Person's Affiliates and (b) such Person's and each such
Affiliate's respective controlling shareholders, general partners, managing members, officers, directors, managers, employees, agents, attorneys, investment bankers, accountants, advisors, consultants
and other authorized representatives.
"Required Information" means, as of any date of determination, the financial information with respect to the Company that is required to
satisfy the condition precedent set forth in (i) clauses (a) and (b) of paragraph 7 of Annex III of the Debt Commitment Letter (as in effect on the date hereof) as
of such date and (ii) clauses (a) and (b) of paragraph 6 of Exhibit C of the Intermediate Holdco Commitment Letter (as in effect on the date hereof) as of such date.
"Sarbanes-Oxley Act" means the Sarbanes-Oxley Act of 2002, as amended.
"SEC" means the United States Securities and Exchange Commission (or any successor thereto).
"Second Lien Giveaway" has the meaning set forth in the Debt Commitment Letter as in effect on the date of this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, or any successor
statute, rules or regulations thereto.
"Software" means all (a) computer programs, including any and all software implementation of algorithms, models and methodologies,
and all firmware, whether in source code, object code, or other form, and (b) documentation, including user manuals and other training documentation relating to any of the foregoing.
"Subsidiary" of a Person means any other Person with respect to which the first Person (a) has the right to elect a majority of the
board of directors or other Persons performing similar functions or (b) beneficially owns more than fifty percent (50%) of the voting stock (or of any other form of voting or controlling equity
interest in the case of a Person that is not a corporation), in each case, directly or indirectly through one or more other Persons.
"Superior Proposal" means an Acquisition Proposal (except the references therein to "twenty percent (20%)" shall be replaced by "fifty
percent (50%)") made by a Third Party (other than resulting from a breach of Section 6.02(a) (other than any such breach that is immaterial and
unintentional)) that the Company Board determines in good faith, after consultation with its financial and outside legal advisors, taking into account such factors as the Company Board considers to be
appropriate (including the conditionality, timing and likelihood of consummation of such proposal), would result in a transaction that is more favorable from a financial perspective to the Company's
stockholders than the Transactions (including taking into account any the Company Termination Fee, if applicable).
"Tax" means any and all U.S. federal, state or local or non-U.S. taxes, including any net income, alternative or add-on minimum, gross
income, gross receipts, sales, use, ad valorem, value added, transfer, franchise, profits, license, registration, recording, documentary, conveyancing, gains, withholding, payroll, employment, excise,
severance, stamp, occupation, premium, real property, personal property, environmental or windfall profit, custom duty or other tax of any kind, together with any charges, interest, penalty, addition
to tax or additional amount imposed with respect thereto by any Governmental Authority responsible for the imposition of any such tax.
"Tax Return" means any return, report, declaration, information return or other document (including schedules thereto, other attachments
thereto or amendments thereof) filed or required to be filed with any taxing authority in connection with the determination, assessment or collection of any Tax, or the administration of any laws,
regulations or administrative requirements relating to any Tax.
"Third Party" means any Person other than Intermediate Holdco, Parent, Merger Sub and their respective Affiliates.
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"Transactions" means the Merger and the other transactions contemplated by this Agreement.
"Transfer Taxes" means all transfer, documentary, sales, use, stamp, registration and other similar Taxes, and all conveyance fees,
recording charges and other similar fees and charges incurred in connection with the consummation of the Transactions.
(b) Each
of the following terms is defined in the Section set forth opposite such term:
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Term
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Section
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7.04 Indemnitee
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7.04(a)
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Adverse Recommendation Change
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6.02(c)
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Affiliate Arrangement
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4.21
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Agreement
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Preamble
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Alternative Acquisition Agreement
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6.02(a)(ii)
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Antitrust Laws
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4.03
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Book-Entry Share
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3.01(b)
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Cancelled Shares
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3.01(c)
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Capitalization Date
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4.05(a)
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Certificate
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3.01(b)
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Certificate of Merger
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2.02(a)
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Closing
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2.01
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Closing Date
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2.01
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COBRA
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4.16(f)
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Company
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Preamble
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Company Board
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Recitals
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Company Board Recommendation
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4.02(b)
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Company Closing Certificate
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8.02(d)
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Company Financial Statements
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4.06(a)
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Company Fundamental Representations
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8.02(a)(i)
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Company Leases
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4.09(a)(v)
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Company Licenses
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4.10(b)
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Company Material Contract
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4.09(a)
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Company Parties
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9.03(c)
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Company Reimbursable Expenses
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9.03(d)
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Company SEC Documents
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4.06(a)
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Company Stockholder Meeting
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7.02(c)
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Compensatory Award Fund
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3.02(a)
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D/RSU Consideration
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3.05(b)(ii)
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Data Privacy and Security Laws
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4.10(e)
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Delaware Secretary of State
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2.02(a)
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DGCL
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Recitals
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Dissenting Share
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3.06
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DSU/RSU Consideration
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3.05(b)(ii)
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Effect
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1.01(a) (Company Material Adverse Effect)
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Effective Time
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2.02(a)
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End Date
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9.01(b)
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Enforceability Exceptions
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4.02(a)
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Exchange Fund
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3.02(a)
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Guarantor
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Recitals
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Guaranty
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Recitals
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Insurance Policies
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4.14
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Term
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Section
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Intermediate Holdco
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Preamble
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Material Customer
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4.22(a)
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Material Vendor
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4.22(b)
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Merger
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Recitals
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Merger Consideration
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3.01(a)
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Merger Sub
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Preamble
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Multiemployer Plan
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4.16(d)
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Notice of Adverse Recommendation Change
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6.02(d)
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Notice of Intervening Event
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6.02(d)(ii)
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Option Consideration
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3.05(a)
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Parent
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Preamble
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Parent 401(k) Plan
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7.07(d)
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Parent Closing Certificate
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8.03(c)
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Parent Fundamental Representations
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8.03(a)(i)
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Paying Agent
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3.02(a)
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Personal Information
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4.10(e)
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Plans
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4.16(a)
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Proxy Date
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7.02(c)
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Proxy Statement
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7.02(a)
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Rep Letters
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7.12(a)(iv)
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Replacement Facility Commitment Letter
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5.08
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Required Company Stockholder Approval
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4.02(a)
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Surviving Corporation
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2.02(a)
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Terminating Company Breach
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9.01(e)
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Terminating Parent Breach
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9.01(f)
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Section 1.02 Definitional and Interpretative Provisions.
(a) Unless
the context of this Agreement otherwise requires, (i) words of any gender include each other gender; (ii) words using the singular or plural number
also include the plural or singular number, respectively; (iii) the terms "hereof," "herein," "hereby," "hereto" and derivative or similar words refer to this Agreement as a whole and not to
any particular provision of this Agreement; (iv) the terms "Article", "Section", "Exhibit" or "Schedule" refer to the specified Article or Section of or Exhibit or Schedule to this Agreement;
(v) whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the phrase "without limitation," and (vi) the word "or"
shall be disjunctive but not exclusive.
(b) The
table of contents and headings in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.
(c) Unless
the context of this Agreement otherwise requires, references to agreements and other documents shall be deemed to include all subsequent amendments and other
modifications thereto (subject to the terms and conditions to the effectiveness of such amendments contained herein and therein).
(d) Words
denoting natural persons shall be deemed to include business entities and vice versa and references to a Person are also to its permitted successors and assigns.
(e) Terms
defined in the text of this Agreement have such meaning throughout this Agreement, unless otherwise indicated in this Agreement, and all terms defined in this
Agreement shall have the
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meanings
when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein.
(f) Any
Law defined or referred to herein or in any agreement or instrument that is referred to herein means such Law as from time to time amended, modified or supplemented
and (in the case of statutes) to any rules or regulations promulgated thereunder, including (in the case of statutes) by succession of comparable successor Laws
(provided that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date or dates, references
to any statute shall be deemed to refer to such statute, as amended, and to any rules or regulations promulgated thereunder, in each case, as of such date).
(g) The
language used in this Agreement shall be deemed to be the language chosen by the parties to express their mutual intent and no rule of strict construction shall be
applied against any party.
(h) Whenever
this Agreement refers to a number of days, such number shall refer to calendar days unless Business Days are specified.
(i) When
calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the
reference date in calculating such period shall be excluded and, other than with respect to Section 6.02(d), if the last day of such period is
not a Business Day, the period shall end on the next succeeding Business Day.
(j) The
word "to the extent" shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply "if".
(k) All
accounting terms used herein and not expressly defined herein shall have the meanings given to them under GAAP.
(l) All
Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any
capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement.
(m) The
word "party" shall, unless the context otherwise requires, be construed to mean a party to this Agreement. Any reference to a party to this Agreement or any other
agreement or document contemplated hereby shall include such party's successors and permitted assigns.
(n) Unless
otherwise specifically indicated, all references to "dollars" or "$" shall refer to the lawful currency of the United States.
ARTICLE II.
THE TRANSACTION
Section 2.01 The Closing. Subject to the terms and conditions of this Agreement, the consummation of the
Transactions (the "Closing") shall take place at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022, at
10:00 a.m. (Eastern time) on the date which is two (2) Business Days after the date on which all conditions set forth in Section 8.01, Section 8.02 and Section 8.03 shall have been satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, but
subject
to the satisfaction or waiver of such conditions) or such other time, place and date as Parent and the Company may mutually agree; provided, however, that
the Closing shall not occur prior to the date that is the earlier to occur of (i) January 29, 2021 and (ii) the date
that is a date specified by Parent on no less than three (3) Business Days' notice to the Company (subject in each case to the satisfaction or waiver (by the party entitled to grant such
waiver) of all the conditions set forth in Section 8.01, Section 8.02 and Section 8.03 for
the Closing as of the date
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determined
pursuant to this proviso). The date on which the Closing actually occurs is referred to in this Agreement as the "Closing Date".
Section 2.02 The Merger.
(a) Contemporaneously
with, or as promptly as practicable after the Closing the parties shall cause the Merger to be consummated by filing with the Secretary of State of the
State of Delaware (the "Delaware Secretary of State") a certificate of merger in the form attached hereto as Exhibit A (the "Certificate of Merger") and executed in accordance with the relevant provisions
of the DGCL, and shall make all other filings or recordings required under the DGCL in order to consummate the Merger. The Merger shall become effective at the time the Certificate of Merger has been
filed with the Delaware Secretary of State, or at such later time as is agreed by the parties hereto and specified in the Certificate of Merger (the "Effective
Time"). As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue its existence as a wholly owned subsidiary of
Parent under the Laws of the State of Delaware. The Company, in its capacity as the corporation surviving the Merger, is sometimes referred to in this Agreement as the
"Surviving Corporation".
(b) The
Merger shall have the effects set forth in this Agreement, the Certificate of Merger and the applicable provisions of the DGCL. Without limiting the generality of
the foregoing, from and after the Effective Time, the Surviving Corporation shall possess all rights, privileges, powers and franchises of the Company and Merger Sub, and all of the obligations,
liabilities and duties of the Company and Merger Sub shall become the obligations, liabilities and duties of the Surviving Corporation.
(c) At
the Effective Time, (i) the certificate of incorporation of the Company in effect immediately prior to the Effective Time shall be amended and restated in its
entirety in the form of the certificate of incorporation of Merger Sub immediately prior to the Effective Time, and as so amended shall be the certificate of incorporation of the Surviving
Corporation, and (ii) the bylaws of the Company in effect immediately prior to the Effective Time shall be amended and restated in their entirety in the form of the bylaws of Merger Sub
immediately prior to the Effective Time, and as so amended shall be the bylaws of the Surviving Corporation, in each case, until thereafter amended in accordance with the DGCL and as provided in such
certificate of incorporation or bylaws.
(d) From
and after the Effective Time, unless otherwise determined by Parent prior to the Effective Time, the officers of the Company immediately prior to the Effective Time
shall be the officers of the Surviving Corporation and, unless otherwise determined by Parent prior to the Effective Time, the directors of Merger Sub immediately prior to the Effective Time shall be
the directors of the Surviving Corporation, in each case, to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their death, resignation or
removal or until their respective successors are duly elected and qualified in accordance with the certificate of incorporation and bylaws of the Surviving Corporation, as the case may be.
ARTICLE III.
CONVERSION OF SECURITIES
Section 3.01 Effect of Merger on Capital Stock.
(a) Conversion of Company Common Stock. At the Effective Time, by virtue of the Merger and without any action on
the part of Parent, Merger Sub or the Company, their respective stockholders or any other Person, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (but
excluding any Cancelled Shares and any Dissenting Shares) shall be cancelled and extinguished and automatically converted into and shall thereafter represent the right to receive an amount in cash
equal to $37.00 (such amount of cash, as may be adjusted pursuant to Section 3.01(e),
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is
hereinafter referred to as the "Merger Consideration"), payable to the holder thereof, without interest, in accordance with Section 3.02.
(b) From
and after the Effective Time, all of the shares of Company Common Stock converted into the Merger Consideration pursuant to this Article III shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and each holder of a
certificate (each, a "Certificate") and each holder of a non-certificated share of Company Common Stock represented by book-entry (each, a
"Book-Entry Share"), in each case, outstanding immediately prior to the Effective Time previously representing any such shares of Company Common Stock
shall thereafter cease to have any rights with respect to such securities, except the right to receive, upon surrender of such Certificates or Book-Entry Shares in accordance with Section 3.02, the
Merger Consideration, without interest.
(c) Cancellation of Company Common Stock. At the Effective Time, all shares of Company Common Stock that are
owned directly by Parent, Merger Sub, any of their Subsidiaries or any Subsidiary of the Company, immediately prior to the Effective Time or held in treasury of the Company (the
"Cancelled Shares") shall, by virtue of the Merger, and without any action on the part of the holder thereof or any other Person, be cancelled,
extinguished and retired without any conversion thereof and shall cease to exist and shall no longer be outstanding, and no payment shall be made in respect thereof.
(d) Conversion of Merger Sub Common Stock. At the Effective Time, by virtue of the Merger and without any action
on the part of the holder thereof, each issued and outstanding share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding immediately prior to the Effective Time shall be
converted into and become one (1) fully paid and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation.
(e) Adjustments. Without limiting the other provisions of this Agreement, if at any time during the period
between the date of this Agreement and the Effective Time, any change in the outstanding shares of Company Capital Stock shall occur by reason of any reclassification, recapitalization, stock split
(including a reverse stock split), division or subdivision of shares, or combination, exchange or readjustment of shares, any stock dividend or stock distribution thereon with a record date during
such period or any other similar transaction, the Merger Consideration shall be equitably adjusted to provide the same economic effect as contemplated by this Agreement. Nothing in this Section 3.01(e) shall be construed to permit any action that is otherwise prohibited or restricted by any other provision of this Agreement.
Section 3.02 Surrender and Payment.
(a) Prior
to the Effective Time, Parent shall select a nationally recognized financial institution (the identity and terms of appointment of which shall be reasonably
acceptable to the Company) to act as paying agent in the Merger (the "Paying Agent") for the payment of the Merger Consideration in respect of each
share of Company Common Stock outstanding immediately prior to the Effective Time represented by a Certificate and each Book-Entry Share outstanding immediately prior to the Effective Time, in each
case, other than the Cancelled Shares and except for any Dissenting Shares. Prior to or substantially concurrently with the Effective Time, Parent or Intermediate Holdco shall deposit or cause to be
deposited (i) with the Paying Agent, cash in an amount sufficient to pay the aggregate Merger Consideration required to be paid by the Paying Agent in accordance with this Agreement (such cash
shall be referred to in this Agreement as the "Exchange Fund"), and (ii) with the Company, cash in an amount sufficient for the Company to pay
the aggregate Option Consideration and D/RSU Consideration in accordance with this Agreement (such cash shall be referred to in this Agreement as the "Compensatory Award
Fund"). In the event the Exchange Fund or the Compensatory Award Fund shall be insufficient to make the payments in connection with the Merger contemplated by Section 3.01
or Section 3.05, respectively, Parent shall promptly deposit or cause to be
deposited additional funds
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with
the Paying Agent or the Company, as applicable, in an amount that is equal to the deficiency in the amount required to make the applicable payment. The Paying Agent shall, pursuant to irrevocable
instructions, deliver the Merger Consideration contemplated to be issued pursuant to Section 3.01 out of
the Exchange Fund. Parent shall cause the Surviving Corporation to pay the Option Consideration and D/RSU Consideration contemplated to be paid pursuant to Section 3.05 out of the Compensatory
Award Fund. The Exchange Fund and the Compensatory Award Fund shall not be used for any other purpose.
(b) As
soon as reasonably practicable after the Effective Time (and in any event within three (3) Business Days following the Effective Time), the Paying Agent shall
send to each holder of record of a Certificate that immediately prior to the Effective Time represented shares of Company Common Stock (other than the Cancelled Shares and except for any Dissenting
Shares) (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the Certificates (or effective
affidavits of loss in lieu thereof) to the Paying Agent) in such form as Parent and the Company may reasonably agree, for use in effecting delivery of shares of Company Common Stock to the Paying
Agent, and (ii) instructions for use in effecting the surrender of Certificates (or effective affidavits of loss in lieu thereof) in exchange for the Merger Consideration in such form as Parent
and the Company may reasonably agree.
(c) Upon
the surrender of a Certificate (or affidavit of loss in lieu thereof) for cancellation to the Paying Agent, together with a letter of transmittal duly completed and
validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in
exchange therefor and the Paying Agent shall pay in exchange therefor, as promptly as practicable, the Merger Consideration pursuant to the provisions of this Article III, and the Certificates
surrendered shall forthwith be canceled. In the event of a transfer of ownership of Company Common Stock that
is not registered in the transfer records of the Company, payment of the appropriate amount of Merger Consideration may be made to a Person other than the Person in whose name the Certificate so
surrendered is registered, if such Certificate shall be properly endorsed or otherwise be in proper form for transfer (and accompanied by all documents reasonably required by the Paying Agent).
Exchange of any Book-Entry Shares shall be effected as promptly as practicable in accordance with the Paying Agent's customary procedures with respect to securities represented by book entry; provided
that the payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the person in whose name such Book-Entry
Shares are registered. No interest shall be paid or accrue on any cash payable upon surrender of any Certificate or Book-Entry Share.
(d) Registered Holders. If any cash payment is to be made to a Person other than the Person in whose name the
applicable surrendered Certificate is registered, it shall be a condition of such payment that the Person requesting such payment shall pay, or cause to be paid, any Transfer Taxes required by reason
of the making of such cash payment to a Person other than the registered holder of the surrendered Certificate or shall establish to the reasonable satisfaction of the Paying Agent that such Taxes
have been paid or are not payable.
(e) No Transfers; No Further Ownership. After the Effective Time, there shall be no further registration of
transfers of shares of Company Common Stock. From and after the Effective Time, the holders of Certificates or Book-Entry Shares representing shares of Company Common Stock outstanding immediately
prior to the Effective Time shall cease to have any rights with respect to such shares of Company Common Stock, except as otherwise provided in this Agreement or by Applicable Law. If, after the
Effective Time, Certificates or Book-Entry Shares are presented to the Paying Agent, the
Surviving Corporation or Parent, they shall be cancelled and exchanged for the consideration provided for, and in accordance with the procedures set forth, in this Article III.
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(f) Termination of Exchange Fund. Any portion of the Exchange Fund that remains unclaimed by the holders of
shares of Company Common Stock after the date which is one (1) year following the Effective Time shall be returned to Parent upon demand. Any holder of shares of Company Common Stock who has
not exchanged his, her or its shares of Company Common Stock in accordance with this Section 3.02 prior to that time shall thereafter look only
to Parent for delivery of the Merger Consideration in respect of such holder's shares of Company Common Stock. Parent shall pay all charges and expenses of the Paying Agent, in connection with the
exchange of Certificates or Book-Entry Shares for the Merger Consideration. Notwithstanding the foregoing, none of Parent, the Company or the Surviving Corporation shall be liable to any Person,
including any holder of shares of Company Common Stock or Company Compensatory Awards, including for any Merger Consideration, Option Consideration or D/RSU Consideration that is required to be
delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(g) Investment of Exchange Fund. The Paying Agent shall invest any cash included in the Exchange Fund as
directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or the
Paying Agent from making the payments required by this Article III, and following any losses Parent shall promptly provide additional funds to
the Paying Agent for the benefit of the holders of Company Common Stock in the amount of such losses, and (ii) no such investment shall have maturities that could prevent or delay payments to
be made pursuant to this Agreement. Any interest or income produced by such investments will be payable to Parent or its designee as directed by Parent.
(h) All
Merger Consideration, Option Consideration and D/RSU Consideration issued or paid upon conversion of the Company Common Stock, the Company Options, the Company RSU
Awards or Company DSU Awards, as applicable, in accordance with the terms of this Agreement, shall be deemed to have been issued and paid in full satisfaction of all rights pertaining to such Company
Common Stock, Company Options, Company RSU Awards or Company DSU Awards, as the case may be.
Section 3.03 Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, then upon
the making of an affidavit (in form and substance reasonably acceptable to the Paying Agent) of that fact by the Person claiming such Certificate to be lost, stolen or destroyed, the Paying Agent will
issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to be paid in respect of the shares of Company Common Stock represented by such Certificate as contemplated by
this Article III; provided, however, that the Paying
Agent may, in its reasonable discretion and as a condition precedent to the payment of such amount, require the owner of such lost, stolen or destroyed Certificate to provide a bond in a customary
amount.
Section 3.04 Withholding Rights. Each of Parent, Merger Sub, the Surviving Corporation, its Subsidiaries
and the Paying Agent shall be entitled to deduct and withhold from the consideration otherwise payable to any Person pursuant to this Agreement, including consideration payable to any holder or former
holder of Company Compensatory Awards, such amounts as it is required to deduct and withhold with respect to the making of such payment pursuant to the Code or under any provision of federal, state,
local or foreign Tax Law. Parent and Merger Sub shall provide prior notice to the Company of any such deduction or withholding (other than (a) payroll withholding because of the compensatory
nature of the applicable payment or (b) U.S. backup withholding) and shall cooperate with the Company to minimize or eliminate such deduction or withholding to the extent permitted by Law. To
the extent that amounts are so deducted or withheld and paid over to the appropriate Governmental Authority by Parent, Merger Sub, the Surviving Corporation, its Subsidiaries or the Paying Agent, as
the case may be, such deducted or withheld amounts shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction and withholding was made.
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Section 3.05 Treatment of Company Compensatory Awards.
(a) Company Options. Effective as of immediately prior to the Effective Time, each Company Option that is
outstanding and unexercised immediately prior thereto, whether vested or unvested, shall by virtue of the Merger automatically and without any action on the part of Parent, Merger Sub, the Company or
the holders thereof, be cancelled and terminated as of immediately prior to the Effective Time and converted into the right to receive an amount in cash, if any, equal to the product obtained by
multiplying (i) the aggregate number of shares of Company Common Stock subject to such Company Option immediately prior to the Effective Time and (ii) the excess, if any, of the Merger
Consideration over the exercise price per share of such Company Option (the "Option Consideration"), less any applicable withholding Taxes. Parent shall
cause the Surviving Corporation to pay the Option Consideration, less any applicable withholding Taxes, to each holder of such Company Option through the payroll system of the Surviving Corporation as
soon as practicable following the Closing Date (and in no event later than the next regularly scheduled payroll run of the Surviving Corporation following the Closing Date). For the avoidance of
doubt, if the exercise price per share of any Company Option, whether vested or unvested as of the Effective Time, is equal to or greater than the Merger Consideration, then by virtue of the
occurrence of the Effective Time and without any action on the
part of Parent, Merger Sub, the Company or the holders thereof, the Company Option will automatically terminate and be canceled without payment of any consideration to the holder thereof.
(b) Company RSU Awards; Company DSU Awards.
(i) Effective
as of immediately prior to the Effective Time, except as provided in Section 3.05(b)(ii), each Company RSU Award and each Company DSU Award that
remains outstanding immediately prior thereto shall by virtue of the Merger automatically and without any action on the part of Parent, Merger Sub, the Company or the holders thereof, be cancelled and
terminated as of immediately prior to the Effective Time and converted into the right to receive an amount in cash equal to the product obtained by multiplying (i) the aggregate number of
shares of Company Common Stock underlying such Company RSU Award or Company DSU Award (with any performance-based goals deemed to be achieved at the "target" level of performance) and (ii) the
Merger Consideration (the "DSU/RSU Consideration"), less any applicable withholding Taxes.
(ii) Notwithstanding
Section 3.05(b)(i), effective as of immediately prior to the Effective Time, each New Company RSU
Award that remains outstanding immediately prior thereto shall by virtue of the Merger automatically and without any action on the part of Parent, Merger Sub, the Company or the holders thereof, be
cancelled and terminated as of immediately prior to the Effective Time and converted into the right to receive an amount in cash equal to the product obtained by multiplying (i) the product of
(A) number of shares of Company Common Stock underlying such New Company RSU Award, and (B) a fraction, the numerator of which is the number of days completed from the date of grant
until the Closing Date and the denominator of which is 1095 and (ii) the Merger Consideration (collectively with the DSU/RSU Consideration, the "D/RSU
Consideration"), less any applicable withholding Taxes.
(iii) Parent
shall cause the Surviving Corporation to pay the D/RSU Consideration, less applicable withholding Taxes, to each holder of such Company RSU Award or Company DSU
Award, as applicable, through the payroll system of the Surviving Corporation as soon as practicable following the Closing Date (and in no event later than the next regularly scheduled payroll run of
the Surviving Corporation following the Closing Date or, with respect to Company DSU Awards, five Business Days following the Closing Date). Notwithstanding anything to the contrary contained in this
Agreement, any payment in respect of any Company RSU Award or Company DSU Award that, immediately prior to such cancellation, was treated as "deferred compensation" subject to Section 409A of
the Code shall be made on the applicable settlement date for such Company RSU Awards or Company DSU Award if required in order to comply with Section 409A of the Code.
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(c) Certain Actions. Prior to the Effective Time, the Company Board (or, as applicable, any committee thereof
administering any of the Company Stock Plans and having appropriate authority) shall, if necessary, adopt such resolutions and take such other actions as it deems necessary or advisable to effectuate
the treatment of Company Compensatory Awards set forth in this Section 3.05. Prior to the Effective Time, the Company shall take all actions that
are necessary to provide that, subject to the consummation of the Merger, the Company Stock Plans shall terminate effective immediately prior to (and contingent upon) the Effective Time.
Section 3.06 Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, with respect
to each share of Company Common Stock held by a holder who has not voted in favor of adoption of this Agreement or consented thereto in writing and who has properly exercised appraisal rights of such
shares in accordance with Section 262 of the DGCL and has not effectively withdrawn or lost its rights to appraisal (each such share, a "Dissenting
Share"), if any, such Dissenting Shares shall not be converted into a right to receive any portion of the Merger Consideration and the holders thereof shall be entitled to such
rights as are granted by Section 262 of the DGCL; provided, however, that such shares of Company
Common Stock shall be cancelled and retired and shall cease to exist and shall no longer be outstanding, subject to the further provisions of this Section 3.06. Each holder of Dissenting Shares who
becomes entitled to payment for such shares pursuant to Section 262 of the DGCL shall
receive payment therefor from the Surviving Corporation in accordance with the DGCL; provided, however,
that (i) if any holder of Dissenting Shares, under the circumstances permitted by and in accordance with the DGCL, affirmatively withdraws or loses (through failure to perfect or otherwise) the
right to dissent or its right for appraisal of such Dissenting Shares, (ii) if any holder of Dissenting Shares fails to establish his, her or its entitlement to appraisal rights as provided in
the DGCL or (iii) if a court of competent jurisdiction shall determine that such holder is not entitled to the relief provided by Section 262 of the DGCL, such holder or holders (as the
case may be) shall forfeit the right to appraisal under Section 262 of the DGCL and any right of such holder of Dissenting Shares to payment
for such shares pursuant to Section 262 of the DGCL shall thereupon cease to constitute Dissenting Shares, and each such right, to the fullest extent permitted by Applicable Law, thereafter be
deemed to have been converted into and to have become, as of the Effective Time, the right to receive, without interest thereon, the Merger Consideration. The Company (A) shall give Parent
prompt written notice of all written demands received by the Company pursuant to Section 262 of the DGCL and (B) shall give Parent the opportunity to direct
(provided that (1) the Company shall have the right to participate in and (2) prior to the Effective Time, Parent shall reasonably consult
in good faith with the Company with respect to) all negotiations and Proceedings with respect to any such demand. The Company shall not make any payment with respect to any demands for appraisal,
settle or offer to settle any such demands for appraisal, or approve any withdrawal of any such demands for appraisal, in each case, without the prior written consent of Parent (not to be unreasonably
withheld, conditioned or delayed).
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as set forth in the Company Disclosure Letter (subject to Section 10.05) or (ii) as disclosed in the Company SEC
Documents (other than (a) disclosures in the "Risk Factors" section of any
Company SEC Documents and (b) any disclosure of risks included in any "forward-looking statements" disclaimer in any such Company SEC Documents, to the extent that such statements are
non-specific and cautionary in nature) filed by the Company at least one day prior to the date hereof (without giving effect to any amendment to any such document filed after the date that is one day
prior to the date hereof) (provided, however, that nothing disclosed in the Company SEC Documents filed
by the Company prior to the date hereof shall be deemed to modify or qualify any representation or warranty set forth in Section 4.01
(Corporate Existence and Power), Section 4.02 (Corporate
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Authorization), Section 4.03 (Governmental Authorization), Section 4.05 (Capitalization; Subsidiaries) or Section 4.20 (No Brokers)), the Company represents and warrants to Parent and Merger Sub:
Section 4.01 Corporate Existence and Power.
(a) The
Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Delaware and has all corporate power and authority
required to own, lease and operate its properties and assets and to carry on its business as currently conducted. The Company is duly qualified to do business as a foreign corporation and, where such
concept is recognized, is in good standing in each jurisdiction in which the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified and
in good standing would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. The Company has made available to Parent complete and correct copies of
the organizational documents of the Acquired Companies.
(b) Each
of the Subsidiaries of the Company (i) is duly organized, validly existing and, where such concept is recognized, in good standing under the Applicable Laws
of the jurisdiction of its organization; (ii) is duly qualified to do business, where such concept is recognized, and is in good standing as a foreign entity in all jurisdictions in which the
conduct of its business or the activities it is engaged makes such licensing or qualification necessary, except where the failure to be so qualified and in good standing would not, individually or in
the aggregate, reasonably be expected to have a Company Material Adverse Effect; and (iii) has all corporate power and authority required to own, lease and operate its properties and assets and
to carry on its business as currently conducted, except where the failure to have such power and authority would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
Section 4.02 Corporate Authorization.
(a) The
Company has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and, subject to the receipt of
the Required Company Stockholder Approval, to consummate the Transactions. The execution, delivery and performance by the Company of this Agreement have been duly and validly authorized by all
necessary corporate action on the part of the Company by the Company Board, subject to the receipt of the Required Company Stockholder Approval, and no other corporate proceedings on the part of the
Company are necessary to authorize the execution, delivery and performance of this Agreement by the Company or for the Company to consummate the Transactions (other than, with respect to the Merger,
the filing of the Certificate of Merger with the Delaware Secretary of State). This Agreement has been duly and validly executed and delivered by the Company, and assuming the due authorization,
execution and delivery by Parent and Merger Sub of this Agreement, this Agreement constitutes the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with
its terms, except that (i) such enforcement may be subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar Laws, now or hereafter in effect,
affecting creditors' rights and remedies generally and (ii) the remedies of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to
the discretion of the court before which any Proceeding therefor may be brought (collectively, the "Enforceability Exceptions").
(b) The
Company Board has duly adopted resolutions (i) determining that this Agreement and the Transactions are fair to, advisable and in the best interests of the
Company and the Company's stockholders, (ii) approving this Agreement and the Transactions, (iii) directing that this Agreement be submitted to the stockholders of the Company for their
adoption and (iv) subject to Section 6.02, recommending adoption of this Agreement by the stockholders of the Company (such
recommendation, the "Company Board Recommendation").
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Section 4.03 Governmental Authorization. The execution,
delivery and performance by the Company of this Agreement and the consummation by the Company of the Transactions require no consent, approval or authorization of, or filing with, any Governmental
Authority other than (a) the filing of the Certificate of Merger with the Delaware Secretary of State and appropriate documents with the relevant authorities of other states in which the
Company or any of its Subsidiaries is qualified to do business, (b) compliance with and filings or notifications under any applicable requirements of the HSR Act and any other applicable U.S.
or foreign competition, antitrust, merger control or investment Laws (together with the HSR Act, "Antitrust Laws"), (c) compliance with any
applicable requirements of the Securities Act, the Exchange Act and any other applicable U.S. state or federal securities, takeover or "blue sky" Laws, (d) such other items required solely by
reason of the participation of Parent or Merger Sub in the Transactions, (e) compliance with any applicable rules of Nasdaq and (f) where failure to take any such actions or filings
would not reasonably be expected to have a Company Material Adverse Effect.
Section 4.04 Non-Contravention. Except as set forth on Section 4.04 of the Company Disclosure Letter, the execution, delivery and performance by the Company of this Agreement and the consummation by
the Company of the Transactions do not and will not (a) contravene, conflict with or result in any violation or breach of any provision of the certificate of incorporation or bylaws (or
comparable organizational documents) of the Company or any of its Subsidiaries, (b) assuming that the consents, approvals, authorizations and filings referred to in Section 4.03 have been
obtained or made, any applicable waiting periods referred to therein have terminated or expired and any condition
precedent to any such consent has been satisfied or waived, and subject to obtaining the Required Company Stockholder Approval, contravene, conflict with or result in a violation or breach of any
Applicable Law, or (c) assuming that the consents, approvals, authorizations and filings referred to in Section 4.03 have been obtained or
made, any applicable waiting periods referred to therein have terminated or expired and any condition precedent to any such consent has been satisfied or waived, and subject to obtaining the Required
Company Stockholder Approval, require any consent by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or
cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which the Company or any of its Subsidiaries is entitled under any
Company Material Contract, except in the case of clauses (b) and (c) above, any such
violation,
breach, default, right, termination, amendment, acceleration, cancellation, or loss that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
Section 4.05 Capitalization; Subsidiaries.
(a) As
of the close of business on December 17, 2020 (the "Capitalization Date"), (i) the authorized capital
stock of the Company consists of (A) 175,000,000 shares of Company Common Stock and (B) 5,000,000 shares of Company Preferred Stock, (ii) there were outstanding
(A) 88,570,623 shares of Company Common Stock, (B) zero shares of Company Preferred Stock, (C) 13,663,194 shares of Company Common Stock were held in treasury of the Company and
its Subsidiaries, (D) 3,211,924 shares of Company Common Stock subject to outstanding Company Options (assuming such Company Options are exercisable in full), (E) 1,094,282 shares of
Company Common Stock subject to outstanding Company RSU Awards and (F) 320,705 shares of Company Common Stock subject to outstanding Company DSU Awards.
(b) As
of the Capitalization Date, the Company has remaining available for grant 7,517,358 shares of Company Common Stock under the Company Stock Plans for issuance on
exercise, vesting or other conversion to Company Common Stock of incentive awards under the Company Stock Plans. All outstanding shares of Company Common Stock have been, and all shares that may be
issued pursuant to the Company Stock Plans will be, when issued in accordance with the respective terms thereof, duly authorized, validly issued, fully paid up, and nonassessable. Section 4.05(b)
of the Company Disclosure
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Letter
contains, as of the Capitalization Date, a complete and correct list of each outstanding Company Option, Company RSU Award and Company DSU Award, including, as applicable, the holder, date of
grant, the number of shares of Company Common Stock subject to such Company Compensatory Award as of the date of this Agreement, exercise price and vesting schedule. Other than as set forth in Section 4.05(b)
of the Company Disclosure Letter, as of the Capitalization Date, there are no outstanding Company Compensatory Awards. All
Company Compensatory Awards have been granted or issued under the Company Stock Plans.
(c) Except
as provided in Section 4.05(a) and for Company Options, Company RSU Awards and Company DSU Awards set forth
on the list delivered by the Company to Parent pursuant to Section 4.05(b), there are no outstanding (i) shares of capital stock,
restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or voting securities of the Company, (ii) securities of the
Company convertible into or exchangeable for shares of capital stock restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right
or voting securities of the Company, (iii) subscriptions, options, warrants, calls, commitments, rights agreements or other rights to acquire from the Company, or other obligation of the
Company to issue, any capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right, voting securities or securities
convertible into or exchangeable for capital stock, restricted stock unit, stock-based performance unit, shares of phantom stock, stock appreciation right, profit participation right or voting
securities of the Company or (iv) equity-based compensation (including restricted shares, restricted share units, stock appreciation rights, performance shares, "phantom" stock).
(d) Each
Subsidiary of the Company on the date hereof is listed on Section 4.05(d) of the Company Disclosure Letter,
including, with respect to each Subsidiary of the Company, (i) its name, (ii) its jurisdiction of incorporation, formation or organization, (iii) its form of organization,
(iv) its authorized equity interests, (v) its issued and outstanding equity interests, (vi) the holder(s) of such issued and outstanding equity interests and (vii) the
Company's direct and indirect ownership percentage in respect of each such Subsidiary. Except for the Subsidiaries of the Company, the Company does not own any shares of capital stock, or any equity
interests of any other Person. The Company has not agreed, nor is it obligated to, make any further investment in or capital contribution to any other Person.
(e) All
outstanding shares of capital stock of the Subsidiaries of the Company are duly authorized, validly issued, fully paid up (to the extent required under the
applicable governing documents) and nonassessable, and all such shares are owned, directly or indirectly, by the Company or one or more of its wholly-owned Subsidiaries free and clear of any Liens
(other than Permitted Liens). No Subsidiary of the Company has or is bound by any outstanding subscriptions, options, warrants, calls, commitments, rights agreements, arrangements, other agreements or
commitments of any character calling for it to issue, deliver or sell, or cause to be issued, delivered or sold any of its equity interests or any securities convertible into, exchangeable for or
representing the right to subscribe for, purchase or otherwise receive any such equity interests or obligating such Subsidiary to grant, extend or enter into any such subscriptions, options, warrants,
calls, commitments, rights agreements arrangements, other agreements or commitments of any character. There are no outstanding contractual obligations of any Subsidiary of the Company to repurchase,
redeem or otherwise acquire any of its capital stock or other equity interests.
Section 4.06 Company SEC Documents; Company Financial Statements; Disclosure Controls.
(a) Since
December 31, 2018, the Company has filed or otherwise furnished (as applicable) with the SEC all forms, schedules, statements, documents and reports
required to be filed or furnished prior to the date hereof by it with the SEC (such forms, documents, schedules, statements and reports so filed or furnished by the Company or any of its Subsidiaries
with the SEC since such date, as have
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been
supplemented, modified or amended since the time of filing (but no later than the date hereof), collectively, the "Company SEC Documents"). As of
its respective filing date, or, if amended, as of the date of the last such amendment, each Company SEC Document complied, in all material respects, with the applicable requirements of the Securities
Act, the Exchange Act, the Sarbanes-Oxley Act and the Dodd-Frank Act of 2020, as amended, as the case may be, and the applicable rules and regulations promulgated thereunder applicable to such Company
SEC Document, and none of the Company SEC Documents at the time it was filed contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the circumstances under which they were made not misleading (or, in the case of a Company SEC Document that is a registration
statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of the date such registration statement or amendment became effective, contained any untrue statement of
a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements made therein not misleading); provided, however, that no representation is made as to the accuracy of any financial projections or
forward-looking statements or the completeness of any information furnished by the Company to the SEC solely for the purposes of complying with Regulation FD promulgated under the Exchange Act.
The consolidated financial statements (including all related notes) of the Company included in the Company SEC Documents (collectively, the "Company Financial
Statements") (i) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated therein or in the notes
thereto) and (ii) fairly present, in all material respects, the consolidated financial position and the consolidated results of operations, cash flows and changes in stockholders' equity of the
Company and its consolidated Subsidiaries as of the dates and for the periods referred to therein (subject, in the case of unaudited interim statements, to normal year-end audit adjustments, to the
absence of notes and to any other adjustments described therein, including in any notes thereto, that are not material in amount or nature).
(b) The
Acquired Companies maintain "disclosure controls and procedures" and "internal control over financial reporting" (as such terms are defined in paragraphs (e)
and (f), respectively, of Rules 13a-15 and 15d-15 of the Exchange Act) as required by Rules 13a-15 and 15d-15 promulgated under the Exchange Act. Since the Company Balance Sheet Date,
the Company's principal executive officer and its principal financial officer have made to the Company's auditors and audit committee of the Company Board all certifications required of him or her
under Section 302 or 906 of the Sarbanes-Oxley Act with respect to any Company SEC Document, except as disclosed in certifications filed with such Company SEC Document.
(c) As
of the date of this Agreement, there are no outstanding or unresolved comments in any comment letters received from the SEC with respect to the Company SEC Documents.
(d) Since
the Company Balance Sheet Date, the Company has complied, in all material respects, with the applicable listing and corporate governance rules and regulations of
Nasdaq in effect as of the date hereof.
Section 4.07 Absence of Certain Changes. Since the
Company Balance Sheet Date and through the date of this Agreement, except as otherwise contemplated or permitted by this Agreement, (a) there has not been a Company Material Adverse Effect,
(b) the business of the Acquired Companies has been conducted, in all material respects, in the ordinary course of business and (c) the Acquired Companies have not taken any action, or
failed to take any action, in each case, that would have required the consent of Parent pursuant to the clauses of Section 6.01(a) set forth in Section 4.07 of the Company Disclosure Letter.
Section 4.08 No Undisclosed Liabilities. There is no
liability, debt or obligation of or claim against an Acquired Company, whether or not of a type required to be reflected or reserved for on a consolidated balance sheet prepared in accordance with
GAAP, except for liabilities and obligations
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(a) reflected,
disclosed or reserved for on the Most Recent Balance Sheet or disclosed in the notes thereto included in the Company SEC Documents, (b) that have arisen since the Company
Balance Sheet Date in the ordinary course of the operation of business of the Acquired Companies and that are not material in amount or nature, (c) incurred in connection with this Agreement or
the Transactions, (d) which have been discharged or paid prior to the date of this Agreement in the ordinary course, (e) disclosed in Section 4.08 of the Company Disclosure Letter or
(f) that have not had, or would not reasonably be expected to have, individually or in
the aggregate, a Company Material Adverse Effect.
Section 4.09 Company Material Contracts.
(a) Section 4.09(a) of the Company Disclosure Letter sets forth, as of the date hereof, a true and complete list of
each Contract, excluding any Plans, which are in effect on the date hereof and to which any Acquired Company is a party or by which any of the assets or properties of any Acquired Company are bound,
and which falls within any of the following categories:
(i) any
Contract relating to the formation, operation, management or control of a joint venture, partnership or other similar Contract, other than any Contract solely
between the Company and its wholly-owned Subsidiaries or among the Company's wholly-owned Subsidiaries;
(ii) any
master or framework Contract with (A) any Material Customer or (B) Material Vendor (it being understood that any statements of work, purchase orders,
change orders or similar instruments pursuant to a master or framework Contract shall not constitute a separate Contract for the purposes of Section 4.09(a) of the Company Disclosure Letter, but
shall be part of the Contract to which it relates);
(iii) except
with respect to Indebtedness for any leased real property, any Contract relating to (A) Indebtedness for borrowed money or evidenced by promissory notes
or debt securities or (B) any financial guaranty, in each case of clauses (A) and (B) in excess of $1,000,000 individually;
(iv) any
Contract relating to an acquisition, divestiture, merger or similar transaction (A) that has continuing indemnification, guarantee, "earn-out" or other
contingent payment obligations on an Acquired Company pursuant to which any Acquired Company reasonably expects that it is required to pay total consideration in excess of $1,000,000 or
(B) pursuant to which any other Person has the right to acquire any assets of an Acquired Company after the date of this Agreement with a fair market value or purchase price of more than
$1,000,000;
(v) any
material lease, sublease, license or sublicense or other Contract with respect to the Leased Real Property that provides for annual base rental payments in excess of
$1,000,000 (the "Company Leases");
(vi) (A)
any Contract between or among the Company, on the one hand, and any directors, executive officers (as such term is defined in the Exchange Act) or any beneficial
owner of five percent (5%) or more of any class of Company Capital Stock (other than the Company) or any Affiliate of the foregoing, on the other hand; and (B) any Contract between an Acquired
Company, on the one hand, and any of its Affiliates, on the other hand, other than any Contract solely between or among the Company and/or its wholly owned Subsidiaries;
(vii) any
Contract that by its terms limits the payment of dividends or other distributions to stockholders by the Company or any Subsidiary of the Company;
(viii) any
collective bargaining agreement or other Contract with any labor union or other employee representative or group;
(ix) any
voting, registration rights, stockholders, investors rights or similar agreements with respect to the equity interests of any Acquired Company;
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(x) any
Contract constituting any settlement agreement pursuant to which any Acquired Company has outstanding payment obligations in excess of $1,000,000, or that otherwise
imposes continuing material obligations upon the operation of any of the Acquired Companies;
(xi) other
than the Company Credit Agreement, any Contracts providing for any interest rate, derivatives or hedging transaction by an Acquired Company;
(xii) any
Contract that obligates an Acquired Company to make a loan or capital contribution to, or investment in any Person (other than (A) accounts receivable from
customers to the extent consistent with payment provisions under the applicable Contract with such customer or (B) loans to the Company or any of its Subsidiaries), in any such case which is in
excess of $2,000,000 over any twelve (12)-month period;
(xiii) any
Contract that is material to the business of the Acquired Companies (taken as whole) and pursuant to which any Acquired Company (A) receives any license,
covenant not to sue or other rights under any Intellectual Property Rights of any third party (other than agreements for any third-party commercially available or off-the-shelf Software, services or
products available on standard commercial terms), or (B) grants any license, covenant not to sue or other rights under any Company IP, other than any non-exclusive outbound license entered into
in the ordinary course of business, in the case of each of the foregoing clauses (A) and (B), in each case, that could not be replaced on commercially reasonable terms, excluding any standard
non-disclosure, end-user, customer, confidentiality or consulting agreements, in each case as entered into in the ordinary course of business;
(xiv) to
the Knowledge of the Company, each Contract that, by its express terms, limits or restricts, in any material respect, the ability of the Acquired Companies to
compete in any geographic area or line of business;
(xv) any
Contract that grants any rights of first refusal, rights of first negotiation, right of first offer, or other similar rights to any Person with respect to the sale
of any material assets, rights or properties of the Acquired Companies;
(xvi) any
Contract that contains "most favored nation" or similar covenants to the counterparty of such Contract; and
(xvii) any
other "material contract" (as such term is defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC).
Each
Contract of the type described in this Section 4.09(a), other than this Agreement, is referred to herein as a
"Company Material Contract." True and complete copies of each Company Material Contract, as of the date of this Agreement, have been made available by
the Company to Parent, or publicly filed in the Company SEC Documents.
(b) As
of the date of this Agreement, except as set forth on Section 4.09(b) of the Company Disclosure Letter or with
respect to the Company Credit Agreement to be discharged at Closing pursuant to the Payoff Letter and Section 7.14, (i) each Company
Material Contract is a valid, binding and enforceable obligation of the Company or one of its Subsidiaries and, to the Knowledge of the Company, of the other party or parties thereto, in accordance
with its terms, subject to the Enforceability Exceptions; (ii) each Company Material Contract is in full force and effect, except to the extent any Company Material Contract expires or
terminates in accordance with its terms in the ordinary course of business; (iii) none of the Company or any of its Subsidiaries has received written notice of any violation or default under
any Company Material Contract; (iv) none of the Company or any of its Subsidiaries have waived any material rights under any Company Material Contract; and (v) the Company and each of
its Subsidiaries has performed all obligations required to be performed by it under each Company Material Contract, except, in each case, as would not reasonably be
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expected
to have, individually or in the aggregate, a Company Material Adverse Effect. No party to any Company Material Contract has given any Acquired Company (A) written notice of its
intention to cancel or terminate any Company Material Contract or (B) written notice of its intention to change the scope of rights under or to fail to renew any Company Material Contract,
except in the case of clauses (A) and (B), with respect to the Company Credit Agreement to be discharged at Closing pursuant to the Payoff Letter and Section 7.14 or as would not have, or
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
(c) All
Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the Exchange Act of the type described in
Item 601(b)(10) of Regulation S-K promulgated by the SEC have been filed, and, as of the date hereof, no such Contract has been amended or modified.
Section 4.10 Compliance with Applicable Laws; Company Licenses; Data Privacy & Security.
(a) Except
with respect to matters set forth on Section 4.10(a) of the Company Disclosure Letter, the Acquired
Companies are, as of the date of this Agreement, and since January 1, 2018 have been, in compliance with all Applicable Laws, except where the failure to be in compliance with such Laws would
not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole. No Acquired Company has received, since January 1, 2018, any written
notice or inquiry from, or has been involved in any investigation by, any Governmental Authority regarding any actual or potential violation of, or failure to comply with, any Applicable Law, in each
case, that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. No Acquired Company, nor, to the Knowledge of the Company, any Principal of an
Acquired Company is, or during the past three years has been, suspended, debarred or proposed for debarment from doing business with any Governmental Authority or has been declared non-responsible or
ineligible for contracting with or for any Governmental Authority. To the Knowledge of the Company, there are no matters pending that are reasonably likely to lead to the institution of suspension or
debarment proceedings against any Acquired Company or any Principal of an Acquired Company.
(b) Except
as set forth on Section 4.10(b) of the Company Disclosure Letter, the Acquired Companies hold all material
regulatory Permits (the "Company Licenses") that are required for the Acquired Companies to conduct their business, as presently conducted, except where
the failure to hold Company Licenses would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(c) Each
Company License is valid and in full force and effect and has not, during the past three (3) years, been suspended, revoked, cancelled or adversely modified,
except where the failure thereof to be in full force and effect, or the suspension, revocation, cancellation or modification thereof, would not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect. No Company License is subject to any conditions or requirements that have not been imposed generally upon licenses in the same service, unless such
conditions or requirements are set forth on the face of the applicable authorization or would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
To the Knowledge of the Company, during the past three (3) years, there has not been any event, condition or circumstance that would preclude any Company License from being renewed in the
ordinary course (to the extent that such Company License is renewable by its terms), except where the failure thereof to be renewed would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.
(d) The
licensee of each Company License is in compliance with such Company License and during the past three (3) years, has fulfilled and performed all of its
obligations with respect thereto, except in each case, where such failure to comply, fulfill or perform its obligations would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
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(e) Except
as set forth on Section 4.10(e) of the Company Disclosure Letter, in connection with its collection,
storage, transfer and/or use of any information relating to an identified or identifiable natural person, including any customers, prospective customers, employees and/or other third parties, and any
other information that constitutes Protected Health Information, as that term is defined in 45 C.F.R. § 160.103 (collectively "Personal
Information"), during the past three (3) years, the Acquired Companies have complied with: (i) applicable requirements under Applicable Laws, including the Health
Insurance Portability and Accountability Act of 1996, as amended, and regulations implemented thereunder and applicable comparable state Laws (collectively, the "Data Privacy
and Security Laws"); (ii) the Acquired Companies' privacy and information security notices; and (iii) policies and the requirements of any Contract to which an
Acquired Company is a party, except with respect to (i), (ii) and (iii), where any such noncompliance would not, individually or in the aggregate, reasonably be expected to be material to the
Acquired Companies, taken as a whole. The Acquired Companies have taken commercially reasonable measures to require all third parties that process Personal Information on their behalf, including
subcontractor business associates, to enter into written agreements that satisfy the requirements of applicable Data Privacy and Security Laws in all material respects. Except as would not,
individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, the Acquired Companies have commercially reasonable physical, technical,
organizational and administrative security measures and policies in place, as necessary to comply with the requirements of Data Privacy and Security Laws and designed to protect Personal Information
collected by the Acquired Companies from and against unauthorized access, use and/or disclosure. During the past three (3) years, to the Knowledge of the Company, none of the Acquired Companies
has received written communication from any Governmental Authority that alleges that such Acquired Company is in material noncompliance with any Data Privacy and Security Laws, and, to the Knowledge
of the Company, no investigation by any Governmental Authority into alleged noncompliance by any Acquired Company with any Data Privacy and Security Laws is ongoing. Except as would not, individually
or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, during the past three (3) years, there have been no material breaches, violations,
outages or unauthorized uses of or accesses to Personal Information or the IT Systems used by the Acquired Companies.
(f) To
the Knowledge of the Company, since January 1, 2018, no Acquired Company or any director, officer, employee or agent of any Acquired Company (in each case,
acting on behalf or at the direction of any Acquired Company) has (i) used any funds for unlawful contributions, gifts or entertainment, or for other unlawful expenses, related to political
activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to foreign or domestic political parties or campaigns or (iii) otherwise violated any
provision of the Anti-Corruption Laws or any other Applicable Laws or Governmental Orders concerning corrupt payments applicable to the Acquired Companies. To the Knowledge of the Company, since
January 1, 2018, no Acquired Company (A) has, in connection with or relating to the business of any Acquired Company, received written notice from or made a voluntary disclosure to any
Governmental Authority regarding any actual or potential violation of the Anti-Corruption Laws, or (B) has been under administrative, civil, or criminal investigation, indictment, or audit
(other than a routine contractual audit) concerning any actual or potential violation of the Anti-Corruption Laws.
Section 4.11 Litigation. Except as set forth on Section 4.11 of the Company Disclosure Letter, as of the date of this Agreement, there are no pending or, to the Knowledge of the Company,
threatened, Proceedings at law or in equity before or by any Governmental Authority against an Acquired Company that would, individually or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect. There is no unsatisfied or outstanding Governmental Order binding upon an Acquired Company that would have, or would reasonably be expected to have, a Company Material Adverse
Effect.
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Section 4.12 Real Property.
(a) Section 4.12(a) of the Company Disclosure Letter contains a complete and correct list of all Owned Real Property
and the address and current owner for each Owned Real Property. Except as set forth on Section 4.12(a) of the Company Disclosure Letter, an
Acquired Company holds good and valid title to such Owned Real Property in fee (or the equivalent interest in the applicable jurisdiction), free and clear of all Liens except Permitted Liens. Except
as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) there are no leases, subleases, licenses, occupancy or any
other agreements granting any person the right of possession, use or occupancy of any portion of the Owned Real Property, and (ii) there are no outstanding options to purchase, lease, license
or use, or rights of first refusal to purchase any of the Owned Real Property or any portions thereof.
(b) Section 4.12(b) of the Company Disclosure Letter contains a complete and correct list, as of the date of this
Agreement, of all Leased Real Property. Except as set forth on Section 4.12(b) of the Company Disclosure Letter or except as would not reasonably
be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) an Acquired Company has a valid and enforceable leasehold estate in all Leased Real Property,
subject to the Enforceability Exceptions, free and clear of all Liens except Permitted Liens, (ii) no Acquired Company is in violation of, or default under, any Company Lease beyond any
applicable notice and cure period, and (iii) no Acquired Company has received any written notice from any lessor of any Leased Real Property of, nor does the Company have Knowledge of the
existence of, any default, event or circumstance that, with notice or lapse of time, or both, would constitute a default by the party that is the lessee or lessor of such Leased Real Property. The
Acquired Companies have made available to the Parent a true and complete copy of each Acquired Company lease, sublease, license, and agreement for the leasing, use or occupancy of the Leased Real
Property, including any amendments, modification, or lease guaranties relating thereto.
Section 4.13 Intellectual Property.
(a) Section 4.13(a) of the Company Disclosure Letter sets forth a true and correct list of all material items of
Registered IP and the jurisdiction in which such item of Registered IP has been registered or filed and the applicable application, registration, or serial or other similar identification number. None
of the Registered IP scheduled on Section 4.13(a) of the Company Disclosure Letter is subject to any pending challenge received by any Acquired
Company in writing, or to the Knowledge of the Company, threatened in which the invalidity, enforceability or ownership of such Registered IP is being contested or challenged (excluding ordinary
course office actions at the U.S. Patent & Trademark Office or similar Governmental Authorities with respect to Registered IP that is the subject of a pending application for registration).
Except as otherwise described in Section 4.13(a) of the Company Disclosure Letter, (i) the Registered IP that constitutes issued patents,
registered trademarks or registered copyrights is subsisting, and to the Knowledge of the Company valid and enforceable (except for patents, trademarks and copyrights that have lapsed at the end of
their non-renewable statutory term) and (ii) the Registered IP that constitutes Internet top-level domain name registrations that are material to the business of the Acquired Companies are
registered in the name of an Acquired Company and have not expired.
(b) The
Acquired Companies own all right, title and interest to and in the Company IP free and clear of any Liens (other than Permitted Liens) and have a valid and
enforceable license or other right to use all other Intellectual Property Rights used in the conduct the business of the Acquired Companies as currently conducted, except where the failure to so own
or have the right to use the applicable Intellectual Property Right would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect; provided that nothing
in this Section 4.13(b) shall
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be
interpreted or construed as a representation or warranty with respect to whether there is any infringement of any such Intellectual Property Rights, which is the subject of Section 4.13(c).
(c) To
the Knowledge of the Company, no Acquired Company is currently infringing, misappropriating or otherwise violating, and has not infringed, misappropriated or
otherwise violated since January 1, 2018, any Intellectual Property Right of any other Person. No Proceeding is pending or, since January 1, 2018, has been threatened in writing against
any Acquired Company alleging any infringement, misappropriation or other violation by such Acquired Company of any Intellectual Property Rights of another Person. To the Knowledge of the Company, no
Person is infringing, misappropriating or otherwise violating any Company IP.
(d) Except
as set forth on Section 4.13 of the Company Disclosure Letter, each employee and consultant of an Acquired
Company involved in the creation or development of any material Company IP is required to and, in the past five (5) years has, signed a written agreement containing an assignment of
Intellectual Property Rights in such Company IP to a member of the Acquired Companies and reasonable confidentiality provisions with respect to any such Intellectual Property Rights created or
developed in the course of such Person's employment with the Acquired Company, and no such employee or consultant (i) to the Knowledge of the Company, is in material breach of any such
agreement with respect to such Intellectual Property Rights or (ii) has claimed in writing any rights in any such Intellectual Property Rights created or developed in the course of such
Person's employment or engagement with the Acquired Company.
(e) The
Acquired Companies take commercially reasonable measures to protect, safeguard and maintain the confidentiality of any Company IP which the Acquired Companies hold
as a trade secret.
(f) For
Company Software, the Acquired Companies (i) have in their possession the source code for such Company Software, and (ii) have not, and do not have any
duty or obligation, to disclose or deliver any source code for any Company Software to, any third party, except with respect to any consultant or other Person that has been engaged by an Acquired
Company and who has signed a written confidentiality agreement with customary terms with respect to the use and disclosure of such source code.
(g) No
Company Software contains or is derived from third-party Open Source Software in a manner such that the terms under which such Open Source Software is licensed to an
Acquired Company imposes a requirement that such Company Software (excluding the Open Source Software) as currently used by the Acquired Companies be (i) distributed or made available to any
third party in source code form; (ii) licensed to any third party for the purpose of modification or redistribution; or (iii) licensed to any third party at no charge. The Acquired
Companies are in compliance, in all material respects, with all terms and conditions of any license for Open Source Software that is used by an Acquired Company. In the past three (3) years, no
Acquired Company has received a written notice from any Person alleging noncompliance with any Open Source Software license.
(h) The
Acquired Companies have in place commercially reasonable disaster recovery plans, procedures and facilities for the Company IT Systems. The Acquired Companies take
commercially reasonable steps designed to prevent the introduction into the Company IT Systems of, and to the Knowledge of the Company do not contain any, material bugs, disabling codes, spyware,
Trojan horses, worms and other malicious code into the Company IT Systems. To the Knowledge of the Company, during the twelve months prior to the date of this Agreement, there have not been any
unauthorized intrusions or breaches of security with respect to the Company IT Systems, except for any intrusions or breaches which would not, individually or in the aggregate, reasonably be expected
to have a Company Material Adverse Effect.
Section 4.14 Insurance Coverage. The Company has made available to Parent true and complete copies of all
material insurance
policies and all material self-insurance programs and
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arrangements
relating to the business, assets, properties and operations of the Acquired Companies (the "Insurance Policies"). Except as has not had and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (a) all Insurance Policies are in full force and effect; (b) all premiums
due and payable with respect to the Insurance Policies have been paid in full; (c) the Acquired Companies are in compliance in all respects with the terms and conditions of such Insurance
Policies; (d) neither the Company nor any of its Subsidiaries has taken any action or failed to take any action which, with notice or the lapse of time or both, would constitute such a breach
or default or permit termination or modification of any of the Insurance Policies; (e) the Company has not received written or, to the Knowledge of the Company, oral notice of cancellation,
non-renewal, disallowance or reduction in coverage with respect to any Insurance Policy; and (f) the Company has timely filed all claims for which it is seeking payment or other coverage under
any of the Insurance Policies and there is no material claim by any Acquired Company pending under any Insurance Policy as to which coverage has been questioned, denied or disputed by the underwriters
of such policies.
Section 4.15 Tax Matters. Except as would not reasonably be expected to have a Company Material Adverse
Effect:
(a) All
Tax Returns required to be filed by or with respect to an Acquired Company have been timely filed (taking into account any extension of time within which to file)
and all such Tax Returns are true, correct and complete in all respects;
(b) All
Taxes of each Acquired Company (whether or not shown as due and payable) on any such Tax Return have been timely and properly paid;
(c) No
deficiency for any amount of Taxes has been asserted in writing or assessed by any Governmental Authority against any Acquired Company, except for deficiencies that
have been satisfied by payment, settled, withdrawn or otherwise resolved, in each case, without further liability for any Acquired Company;
(d) As
of the date hereof, there are no audits or examinations or other administrative or judicial proceedings by any Governmental Authority ongoing or pending (or
threatened in writing) by any Governmental Authority with respect to any Taxes of any Acquired Company; no adjustment relating to the timing of income, deductions, losses or credits of or with respect
to any Acquired Company has been made in writing by any Governmental Authority in any completed audit or examination which, by application of the result of such adjustment, could reasonably be
expected to result in a Tax liability for any subsequent period;
(e) There
are no waivers or extensions of any statute of limitations currently in effect and no request for such extension or waiver is currently pending with respect to
Taxes of any Acquired Company (other than extensions that arise as a result of filing Tax Returns by the extended due date therefor);
(f) There
are no Liens for Taxes upon any property or assets of any Acquired Company, except for Permitted Liens;
(g) None
of the Acquired Companies have, within the past two (2) years, been a party to any transaction intended to qualify under Section 355 of the Code (or
under so much of Section 356 of the Code as relates to Section 355 of the Code);
(h) None
of the Acquired Companies (i) is a party to any Tax allocation, indemnity or sharing agreement (other than any intercompany agreements and commercial or
financial agreements the principal purpose of which is not related to Taxes) or (ii) has ever been a member of an affiliated, consolidated, combined, unitary or similar Tax group, except for
any such Tax group of which any Acquired Company is or was the common parent for applicable tax purposes;
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(i) The
Acquired Companies have withheld or collected and reported and paid over to the appropriate Governmental Authority, all Taxes required to have been withheld or
collected, reported and paid in connection with any amounts paid or owing to any employee, independent contractor, customer, creditor, stockholder or other third party;
(j) Each
Acquired Company has properly collected all sales Taxes required to be collected in the time and manner required by any applicable law and remitted all such sales
Taxes and applicable use Taxes to the applicable Governmental Authority in the time and in the manner required by any applicable law;
(k) None
of the Acquired Companies will be required to include any item of income in, or exclude any item of deduction from, taxable income for any taxable period (or
portion thereof) ending after the Closing Date as a result of any:
(i) change
in method of accounting made prior to the Closing;
(ii) use
of an improper method of accounting before Closing for a taxable period ending on or prior to the Closing Date;
(iii) "closing
agreement" as described in Section 7121 of the Code (or any corresponding or similar provision of state, local, or non-U.S. income Tax law) executed
prior to the Closing;
(iv) installment
sale or open transaction disposition made prior to the Closing;
(v) prepaid
amount received prior to the Closing outside of the ordinary course of business; or
(vi) election
under Code Section 108(i) made on or prior to the Closing Date;
(l) No
Acquired Company has deferred any payment of Taxes otherwise due (including through any automatic extension or other grant of relief provided by an applicable
Governmental Authority as a result of Section 2302 of the CARES Act, IRS Notice 2020-18, IRS Notice 2020-20 or IRS Notice 2020-23 or any similar or additional federal, state, local or foreign
extension or deferral granted by an applicable Governmental Authority related to the novel coronavirus, COVID-19);
(m) Since
January 1, 2015, no Acquired Company has participated in any "reportable transaction," as defined under Treasury Regulations Section 1.6011-4(b)(1);
and
(n) Neither
the Company nor any of its Subsidiaries has a permanent establishment for applicable income tax purposes in a country other than its country of formation or
incorporation, as applicable.
Section 4.16 Employees and Employee Benefit Plans.
(a) Section 4.16(a) of the Company Disclosure Letter sets forth a complete list of each material Plan. For purposes of
this Agreement, "Plan" means any written or unwritten (i) "employee benefit plan" as that term is defined in Section 3(3) of ERISA
(regardless of whether subject to ERISA), (ii) employment, consulting, pension, retirement, profit sharing, deferred compensation, stock option, change in control, retention, equity or
equity-based compensation, stock purchase, employee stock ownership, severance pay, bonus or other incentive plans, programs, policies or agreements and (iii) medical, vision, dental or other
health plans, or life insurance plans, in each case, that is either (A) maintained, contributed to or sponsored by the Company or any of its Subsidiaries, or required to be maintained,
contributed to or sponsored by the Company or any of its Subsidiaries for the benefit of any current or former employees, directors, officers or consultants of the Company or any of its Subsidiaries
and/or their beneficiaries and dependents or (B) to which the Company or any of its Subsidiaries contributes or is obligated to contribute, other than any (i) statutory plan, program or
arrangement that is required under applicable Laws and maintained by any Governmental Authority and (ii) Multiemployer Plan.
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(b) With
respect to each material Plan, the Company has delivered to Parent a true, correct and complete copy of: (i) each writing constituting a part of such Plan,
including all plan documents, employee communications (including current summary plan description or other written summary provided to participants), benefit schedules, trust agreements, and insurance
contracts and other funding vehicles; (ii) the most recent annual financial report, if any; and (iii) the most recent actuarial report, if any.
(c) Each
Plan that is intended to be qualified under Section 401(a) of the Code either has received a favorable determination letter from the IRS or may rely upon a
favorable prototype opinion letter from the IRS as to its qualified status, and, to the Knowledge of the Company, nothing has occurred since the date of the latest favorable determination letter or
prototype opinion letter, as applicable, that would reasonably be expected to cause the loss of qualification of any such Plan or the related trust. Except as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect, (i) each Plan has been maintained and administered in compliance with ERISA, the Code and other Applicable Laws, and
(ii) the Company and its Subsidiaries have complied, and are now in compliance with all provisions of ERISA, the Code and all Applicable Laws.
(d) Except
as could not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, there are no pending or threatened claims (other
than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against the Plans, and, to the Knowledge of the Company, no set of circumstances
exists which may reasonably give rise to a claim or lawsuit, against the Plans, any fiduciaries thereof with respect to their duties to the Plans or the assets of any of the trusts under any of the
Plans.
(e) No
Plan is a "multiemployer plan" (as defined in Section 3(37) or 4001(a)(3) of ERISA) (a "Multiemployer Plan") or
other pension plan subject to Title IV of ERISA or Section 412 of the Code, and neither the Company nor any of its ERISA Affiliates sponsors, maintains or contributes to, or has, within the
past six (6) years, sponsored, maintained or contributed to, a Multiemployer Plan or other pension plan subject to Title IV of ERISA or Section 412 of the Code.
(f) No
Plan provides for post-retirement welfare benefits, other than (i) health care continuation coverage required by Section 4980B of the Code
("COBRA") or other Applicable Law and at no cost to the Company and its Subsidiaries, (ii) coverage through the end of the calendar month in
which a termination of employment occurs or (iii) pursuant to a Plan listed on Section 4.16(a) of the Company Disclosure Letter that
requires, or would require by its terms under certain specified conditions, the Company or any Subsidiary to pay or subsidize COBRA premiums for a terminated employee for a limited period of time
following the employee's termination.
(g) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, all contributions required to be made to the
Plans by Applicable Law or by the governing terms of the Plans or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding Plans, for any period
through the date hereof have been made or paid in full (including any penalties, Taxes and fees thereon for any late payments) or, to the extent not required to be made or paid on or before the date
hereof, have been reflected on the Company Financial Statements.
(h) Except
as set forth in Section 4.16(h) of the Company Disclosure Letter or required by the terms of this
Agreement, neither the execution by the Company of this Agreement nor the consummation of the Transactions will (either alone or upon occurrence of any additional or subsequent events):
(i) materially increase the amount of compensation or benefits due to any such current or former employee, consultant or director; (ii) accelerate the vesting, funding or time of payment
of any compensation, equity award or other benefit; or (iii) result in the payment of any "excess parachute payment" within the meaning of Section 280G of the Code.
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(i) Except
as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) neither the Company nor any of its
Subsidiaries is the subject of any pending or, to the Knowledge of the Company, threatened, Proceeding alleging that the Company or any of its Subsidiaries has engaged in any unfair labor practice
under any Law; (ii) there is no pending or, to the Knowledge of the Company, threatened organizing activities, arbitration, labor strike, dispute, walkout, work stoppage, slowdown or lockout
with respect to employees of the Company or any of its Subsidiaries; and (iii) neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement, and there are
no labor unions or other organizations representing, or, to the Knowledge of the Company purporting to represent or attempting to represent, any employee of the Company or any of its Subsidiaries.
(j) Except
as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and each of its Subsidiaries is in
compliance with all Applicable Laws relating to employment, labor and employment practices and the terms and conditions of employment, including Laws relating to hiring, employment, discrimination,
classification of service providers as non-employees, hours of work and the payment of wages or overtime wages.
Section 4.17 Environmental Matters. Except as set forth on Section 4.17 of
the Company Disclosure Letter the Acquired Companies are, and since January 1, 2018 have been, in compliance with all Environmental Laws, except for any such instance of non-compliance that
would not reasonably be expected to have a Company Material Adverse Effect. Except as set forth on Section 4.17 of the Company Disclosure Letter,
the Acquired Companies hold all permits required under applicable Environmental Laws to permit the Acquired Companies to own their property and operate their assets in the manner in which they are now
operated and maintained and to conduct the business of the Acquired Companies as currently conducted, except where the absence of any such permit would not reasonably be expected to have a Company
Material Adverse Effect. Except as set forth on Section 4.17 of the Company Disclosure Letter, as of the date of this Agreement, there are no
written claims or notices of violation pending or, to the Knowledge of the Company, issued to or threatened, against the Company or any of its Subsidiaries alleging violations of or liability under
any Environmental Law, except for any such claim or notice that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on Section 4.17 of the Company Disclosure Letter, (i) no Acquired Company has assumed, undertaken or provided an indemnity with respect to
any material liability of any Person under Environmental Law, except as would not reasonably be expected to have a Company Material Adverse Effect, (ii) there are no underground storage tanks
on any Owned Real Property, except as would not reasonably be expected to have a Company Material Adverse Effect, and (iii) there has been no Release of any Hazardous Materials at, in, on,
under or from any of the Owned Real Property or Leased Real Property or any property formerly owned or occupied by any Acquired Company, except as would not reasonably be expected to have a Company
Material Adverse Effect. The Company has provided to Parent true and complete copies of any and all material environmental reports, assessments and studies in the Company's possession with respect to
the Owned Real Property or Leased Real Property.
Section 4.18 Information in the Proxy Statement. The Proxy Statement (and any amendment thereof or
supplement thereto) at the
time that it is filed with the SEC, at the date it is mailed to the Company's stockholders and at the time of any meeting of the Company's stockholders to be held in connection with the Merger, will
not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading, except that no representation or warranty is made by the Company with respect to (i) statements therein relating to Parent and its
Affiliates, including Merger Sub, or based on information expressly supplied by or on behalf of Parent or Merger Sub for inclusion in the Proxy Statement or (ii) any financial projections or
forward-looking statements. The Proxy Statement (and any amendment thereof or supplement thereto)
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will
comply as to form, in all material respects, with the provisions of the Exchange Act and any other applicable federal securities Laws.
Section 4.19 Required Vote. The affirmative vote of the holders of at least a majority of the outstanding
shares of Company
Common Stock entitled to vote in accordance with the DGCL to adopt this Agreement (the "Required Company Stockholder Approval") is the only vote of the
holders of any of the Company Capital Stock necessary to adopt this Agreement and approve the Merger and the other Transactions.
Section 4.20 No Brokers. Except for Barclays Capital Inc., there is no investment banker, broker,
finder or other
financial intermediary that has been retained by or is authorized to act on behalf of the Company or any of its Subsidiaries who will be entitled to any fee or commission from the Company or any of
its Subsidiaries in connection with the Transactions.
Section 4.21 Affiliate Arrangements. Between January 1, 2018 and the date of this Agreement, there
have been no
transactions, or series of related transactions, or Contracts, that would be required to be reported prior to the date hereof by the Company pursuant to Item 404 of Regulation S-K
promulgated by the SEC (each, and "Affiliate Arrangement") that have not been disclosed in the Company SEC Documents.
Section 4.22 Material Customers; Material Vendors.
(a) Section 4.22(a) of the Company Disclosure Letter sets forth a complete list of the ten (10) largest
customers (each, a "Material Customer") of the Acquired Companies, taken as a whole (based on the revenue generated from such customer for the eleven
months ended November 30, 2020), in each case, showing the total revenues generated by each such customer during such period. Except as would not, individually or in the aggregate, be material
to the Acquired Companies, taken as a whole, during the past twelve (12) months prior to the date hereof, no Acquired Company has been, or is currently, engaged in any Proceeding with any
Material Customer. Except as would not, individually or in the aggregate, be material to the Acquired Companies, taken as a whole, no Acquired Company has received any written notice from any Material
Customer expressly stating any intention to terminate purchases from the Acquired Companies.
(b) Section 4.22(b) of the Company Disclosure Letter sets forth a complete list of the ten (10) largest vendors
or suppliers (each, a "Material Vendor") of the Acquired Companies, taken as a whole (based on the amounts paid to such vendors or suppliers by the
Acquired Companies for the eleven months ended November 30, 2020). Except as would not, individually or in the aggregate, be material to the Acquired Companies, taken as a whole, during the
past twelve (12) months prior to the date hereof, no Acquired Company has been, or is currently, engaged in any Proceeding with any Material Vendor. Except as would not, individually or in the
aggregate, be material to the Acquired Companies, taken as a whole, no Acquired Company has received any written notice from any Material Vendor expressly stating any intention to terminate its
provision of goods or services to the Acquired Companies.
Section 4.23 Government Contracts. During the past three (3) years, with respect to each Government
Contract and each
Government Bid: (a) each Acquired Company has complied with all Government Contract provisions, (b) all representations and certifications executed by an Acquired Company pertaining to a
Government Contract or Government Bid were current, accurate and complete as of their effective date, (c) there was no suspension, stop work order, cure notice, or show cause notice in effect,
nor, to the Knowledge of Company, has any Governmental Authority or other Person threatened to issue one to an Acquired Company, (d) no Acquired Company has received a negative written past
performance evaluation in relation to any Government Contract, (e) no Acquired Company has made nor, to the Knowledge of Company, been required to make any disclosures to any Governmental
Authority with respect to any alleged irregularity, misstatement or omission arising under
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or
relating to any Government Contract or Government Bid; and (f) no Acquired Company has had any Government Contract terminated for default, or has been the subject of a formal claim, request
for equitable adjustment or dispute, nor a written, nor to the Company's Knowledge, oral, notice or disclosure of breach, recoupment or disallowance of cost, penalty assessment, cure or show cause in
connection with a Government Contract or Government Bid, except, in each case of clauses (a) through
(f), as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect. There are no outstanding disputes between an Acquired Company, on the one hand,
and any Governmental Authority or other Person, on the other hand, arising under or relating to any Government Contract or Government Bid that would, individually or in the aggregate, reasonably be
expected to have a Company Material Adverse Effect.
Section 4.24 Accounts Payable; Accounts Receivable. All accounts payable of the Acquired Companies as of the
date hereof arose in bona fide, arm's-length transactions in the ordinary course of business. All accounts receivable of the Acquired Companies as of the date hereof were
acquired or arose from sales actually made or services actually performed in the ordinary course of business that represent bona fide transactions and
valid claims, and are enforceable in accordance with their terms, except to the extent of any specific reserves against such accounts receivable are reflected in the Company SEC Documents.
Section 4.25 No Additional Representations or Warranties. Except as provided in this Article IV or in any certificate to be delivered by the Company in connection with this Agreement, neither the Company nor any other Person on
behalf of the Company makes any express or implied representation or warranty with respect to the Company, any of its Subsidiaries, or with respect to any other information provided to Parent, Merger
Sub or their respective Affiliates in connection with the Transactions, including the accuracy, completeness or timeliness thereof. Neither the Company nor any other Person will have or be subject to
any claim, liabilities or any other obligation to Parent, Merger Sub or any other Person resulting from the distribution or failure to distribute to Parent or Merger Sub, or Parent's or Merger Sub's
use of, any such information, including any information, documents, projections, estimates, forecasts or other material made available to Parent or Merger Sub in the electronic data room maintained by
the Company for purposes of the Transactions or management presentations in expectation of the Transactions, unless and to the extent any such information is expressly included in a representation or
warranty contained in this Article IV or in any certificate to be delivered by the Company in connection with this Agreement.
Section 4.26 Acknowledgement of No Additional Representations or Warranties. Except for the representations
and warranties
contained in Article V or in any certificate to be delivered by Parent or Merger Sub in connection with this Agreement, the Company acknowledges
that none of Parent, Merger Sub nor any of their Subsidiaries or Representatives makes, and the Company acknowledges that it has not relied upon or otherwise been induced by, any other express or
implied representation
or warranty by or on behalf of Parent, Merger Sub or any of their Subsidiaries or with respect to any other information provided or made available to the Company by or on behalf of Parent or Merger
Sub in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to the Company.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF PARENT, INTERMEDIATE HOLDCO AND
MERGER SUB
Parent, Intermediate Holdco and Merger Sub each represent and warrant to the Company:
Section 5.01 Corporate Existence and Power. Each of Parent, Intermediate Holdco and Merger Sub is duly
incorporated, validly
existing and in good standing under the Laws of the State of Delaware and has all corporate power and authority required to own, lease and operate its assets and to carry on
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its
business as currently conducted. Each of Parent, Intermediate Holdco and Merger Sub is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction in which
the nature of the business conducted by it makes such qualification necessary, except where the failure to be so qualified and in good standing would not materially impair the ability of Parent,
Intermediate Holdco or Merger Sub to consummate the Transactions. Merger Sub is a direct, wholly-owned Subsidiary of Parent; Parent is a direct, wholly-owned Subsidiary of Holdings; and Holdings is a
direct, wholly-owned Subsidiary of Intermediate Holdco.
Section 5.02 Corporate Authorization.
(a) Each
of Parent, Intermediate Holdco and Merger Sub has all requisite corporate power and authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the Transactions. The execution, delivery and performance by each of Parent, Intermediate Holdco and Merger Sub of this Agreement have been duly and validly authorized by
all necessary action on the part of Parent, Intermediate Holdco and Merger Sub (subject, with respect to Merger Sub, only to approval by its sole stockholder), and no other corporate proceedings on
the part of Parent, Intermediate Holdco and Merger Sub are necessary to authorize the execution and delivery of this Agreement or for each of Parent, Intermediate Holdco and Merger Sub to consummate
the Transactions (other than, with respect to the Merger, the filing of the Certificate of Merger with the Delaware Secretary of State). Assuming the due authorization, execution and delivery by the
Company of this Agreement, this Agreement has been duly and validly executed and delivered by Parent, Intermediate Holdco and Merger Sub and constitutes the legal, valid and binding obligation of each
of Parent, Intermediate Holdco and Merger Sub, enforceable against each of them in accordance with its terms, subject to the Enforceability Exceptions.
(b) The
board of directors or similar governing body of each of Parent, Intermediate Holdco and Merger Sub has duly adopted resolutions (i) determining that this
Agreement and the Transactions are advisable and in the best interests of Parent, Intermediate Holdco, Merger Sub and their respective stockholders or other equityholders, as applicable and
(ii) adopting this Agreement and the Transactions. Parent, acting in its capacity as the sole stockholder of Merger Sub, will immediately after execution hereof approve and adopt this
Agreement.
(c) No
vote of, or consent by, the holders of any equity interests of Parent is necessary to authorize the execution, delivery and performance by Parent of this Agreement
and the consummation of the Transactions or otherwise required by Parent's organizational documents, Applicable Law or any Governmental Authority.
Section 5.03 Governmental Authorization. The execution, delivery and performance by each of Parent,
Intermediate Holdco and
Merger Sub of this Agreement and the consummation by Parent, Intermediate Holdco and Merger Sub of the Transactions require no action by or in respect of, or filing with, any Governmental Authority
other than (a) the filing of the Certificate of Merger with the Delaware Secretary of State, (b) compliance with and filings or notifications under any applicable requirements of the
Antitrust Laws, (c) compliance with any applicable requirements of the Securities Act, the Exchange Act and any other applicable U.S. state or federal securities, takeover or "blue sky" Laws,
(d) compliance with any applicable rules of Nasdaq, and (e) where failure to take any such actions or filings would not materially impair or delay the ability of Parent, Intermediate
Holdco or Merger Sub to consummate the Transactions.
Section 5.04 Non-Contravention. The execution, delivery and performance by each of Parent, Intermediate
Holdco and Merger Sub of
this Agreement, the consummation by each of Parent, Intermediate Holdco or Merger Sub of the Transactions and the compliance by each of Parent, Intermediate Holdco or Merger Sub with any of the
provisions of this Agreement does not and will not (a) contravene, conflict with or result in any violation or breach of any provision of the certificate of incorporation or bylaws (or
comparable organizational documents) of Parent, Intermediate Holdco or
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Merger
Sub, (b) assuming the consents, approvals, authorizations and filings referred to in Section 5.03 have been obtained or made, any
applicable waiting periods referred to therein have terminated or expired and any condition precedent to any such consent has been satisfied or waived, contravene, conflict with or result in a
violation or breach of any Applicable Law or (c) assuming compliance with the matters referred to in Section 5.03, require any consent by
any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation,
acceleration or other change of any right or obligation or the loss of any benefit to which Intermediate Holdco or Parent or any of their respective Subsidiaries is entitled under any Contract, except
in the case of clauses (b) and (c) above, any such violation, breach, default, right, termination, amendment, acceleration, cancellation or loss that would not, individually or in the
aggregate, materially impair or delay the ability of Parent, Intermediate Holdco or Merger Sub to consummate the Transactions.
Section 5.05 Litigation. As of the date of this Agreement, there are no pending or, to the Knowledge of
Parent, Intermediate
Holdco or Merger Sub, threatened, lawsuits, actions, suits, claims or other proceedings at law or in equity or investigations before or by any Governmental Authority against Parent, Intermediate
Holdco or any of their respective Subsidiaries that would reasonably be expected to materially impair the ability of Parent, Intermediate Holdco or Merger Sub to consummate the Transactions. There is
no unsatisfied judgment or any open injunction binding upon Parent, Intermediate Holdco or any of their respective Subsidiaries which would reasonably be expected to materially impair the ability of
Parent, Intermediate Holdco or Merger Sub to consummate the Transactions.
Section 5.06 No Brokers. There is no investment banker, broker, finder or other financial intermediary that
has been retained by
or is authorized to act on behalf of any of Parent, Intermediate Holdco or their respective Subsidiaries who will be entitled to any fee or commission from the Acquired Companies in connection with
the Transactions.
Section 5.07 Ownership of Company Capital Stock.
(a) Parent,
Intermediate Holdco and Merger Sub and their respective Subsidiaries do not beneficially own (as such term is used in Rule 13d-3 promulgated under the
Exchange Act) any shares of Company Common Stock or other securities of the Company or any options, warrants or other rights to acquire Company Common Stock or other securities of, or any other
economic interest (through derivative securities or otherwise) in, the Company except pursuant to this Agreement.
(b) Neither
Parent nor any of its Affiliates has entered into any Contract, arrangement or understanding (in each case, whether oral or written), or authorized, committed or
agreed to enter into any Contract, arrangement or understanding (in each case, whether oral or written), pursuant to which: (i) any stockholder of the Company would be entitled to receive
consideration of a different amount or nature than the Merger Consideration, or (ii) any stockholder of the Company (A) agrees to vote to adopt this Agreement or the Merger or
(B) agrees to vote against, or not to tender its shares of Company Common Stock in, any Acquisition Proposal.
Section 5.08 Financial Capacity. Parent has delivered to the Company a true and complete copy of
(a) the executed
Intermediate Holdco Commitment Letter and (b) the executed Debt Commitment Letter. As of the date hereof, none of the Commitment Letters have been amended or modified in any manner prior to the
date of this Agreement. Neither Parent nor any of its Affiliates has entered into any agreement, side letter or other commitment or arrangement relating to the financing of the Transactions, other
than (i) as set forth in the Commitment Letters and the fee letters related thereto, as applicable, and (ii) customary non-disclosure or non-reliance agreements which do not impact the
conditionality or aggregate amount of the Financing. As of the date hereof, assuming the Financing is funded in accordance with the Financing Conditions and assuming that each of the conditions set
forth
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in Article VIII are satisfied at Closing, the aggregate proceeds of the Debt Financing (both before and after giving effect to the exercise of
any or all "market flex" provisions related thereto), the Preferred Equity Financing and the Holdco PIK Financing, together with cash on hand, will be sufficient to consummate the Transactions,
including, for the avoidance of doubt, (i) the payment of the aggregate Merger Consideration, Option Consideration and D/RSU Consideration to which holders of Company Common Stock, Company
Options, Company RSU Awards and Company DSU Awards will be entitled at the Effective Time pursuant to this Agreement, (ii) subject to Section 7.14, the repayment or refinancing of the Company
Credit Agreement and (iii) the payment of all fees and expenses required to be
paid by Parent, Holdings, Intermediate Holdco or Merger Sub in connection with the Transactions. As of the date hereof, the commitments contained in the Commitment Letters have not been withdrawn or
rescinded in any respect. As of the date hereof, the Commitment Letters are in full force and effect and represent valid, binding and enforceable obligations of Parent, Holdings and Intermediate
Holdco, as applicable, and, to the Knowledge of Parent, Merger Sub and Intermediate Holdco, each other party thereto (subject, in each case, to the Enforceability Exceptions) to provide the financing
contemplated thereby subject only to the satisfaction or waiver of the Financing Conditions. Holdings, Parent and Intermediate Holdco have fully paid (or caused to be paid) any and all commitment fees
and other amounts that are due and payable on or prior to the date of this Agreement in connection with the Financing. As of the date hereof, assuming that each of the conditions set forth in Article VIII, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of
Holdings, Parent or Intermediate Holdco or, to the Knowledge of Parent and Intermediate Holdco, any other party thereto under any term of the Commitment Letters. As of the date hereof, Parent and
Intermediate Holdco have no reason to believe, assuming that each of the conditions set forth in Article VIII are satisfied at Closing, that it
or, to the Knowledge of Parent and Intermediate Holdco, any other party thereto will be unable to satisfy on a timely basis any term of any of the Commitment Letters. There are no conditions precedent
or other contingencies related to the funding of the full amount of the Financing other than the Financing Conditions. The only conditions precedent or other contingencies related to the funding of
the applicable Financing on the Closing Date that will be included in the definitive documentation in respect of the applicable Financing shall be the Financing Conditions contained in the applicable
Commitment Letters. As of the date hereof, Parent and Intermediate Holdco have no reason to believe that (A) any of the Financing Conditions will not be satisfied or (B) assuming
satisfaction or waiver of the Financing Conditions on the Closing Date, the Financing will not be made available to Parent or Intermediate Holdco, as applicable, on the Closing Date. With respect to
any commitment letter (including all exhibits, schedules and annexes thereto and any associated fee letter) governing any Replacement Commitment Facility (the "Replacement
Facility Commitment Letter"), the parties hereto agree that upon delivery to Company of a fully executed version thereof, the Replacement Facility Commitment Letter shall be
deemed a "Debt Commitment Letter" hereunder and Parent shall be deemed to, as of such date of delivery, make the same representations and agree to the same covenants contained herein with respect to
the Debt Commitment Letter regarding such Replacement Facility Commitment Letter (it being understood and agreed that the Replacement Facility Commitment Letter may not have conditions precedent to
the funding thereunder that are not substantially identical to (or are more expansive than) the conditions precedent to the funding of the second lien incremental term loan facility under the Debt
Commitment Letter as in effect on the date hereof). Parent, Merger Sub and Intermediate Holdco expressly agree and acknowledge that their obligations hereunder, including Parent's and Merger Sub's
obligations to consummate the Merger, are not subject to, or conditioned on, Parent's, Merger Sub's or Intermediate Holdco's receipt of financing.
Section 5.09 Solvency. Neither Parent nor Merger Sub is entering into the Transactions with the actual
intent to hinder, delay or
defraud either present or future creditors of any Parent, the Subsidiaries of Parent or any Acquired Company. Assuming (a) the satisfaction or waiver of the conditions to Parent's and Merger
Sub's obligations to consummate the Transactions and (b) the
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accuracy
of the Company's representations set forth in Article IV, each of Parent and the Surviving Corporation will, after giving effect to all
of the Transactions, including the payment of any amounts required to be paid in connection with the consummation of the Transactions and the payment of all related fees and expenses, be solvent at
and immediately after the Effective Time. As used in this Section 5.09, the term "solvent" means, with respect to a particular date, that on such
date, (a) the sum of the assets, at a fair valuation, of Parent and Merger Sub and, after the Merger, Parent and the Surviving Corporation and its Subsidiaries will exceed their debts,
(b) each of Parent and Merger Sub and, after the Merger, Parent and the Surviving Corporation and its Subsidiaries have not incurred debts beyond its ability to pay such debts as such debts
mature, and (c) each of Parent and Merger Sub and, after the Merger, Parent and the Surviving Corporation and its Subsidiaries, has sufficient capital and liquidity with which to conduct its
business.
Section 5.10 Information in the Proxy Statement. None of the information supplied or to be supplied by
Parent for inclusion or
incorporation by reference in the Proxy Statement (and any amendment thereof or supplement thereto) will, as of the date the Proxy Statement is mailed to the Company's stockholders and at the time of
the meeting of the Company's stockholders to be held in connection with the Merger, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading.
Section 5.11 Ownership of Merger Sub; No Prior Activities. All of the authorized capital stock of Merger
Sub consists of 1,000
shares, par value $0.01 per share, all of which are validly issued and outstanding. All of the issued and outstanding shares of stock of Merger Sub are, and at the Effective Time will be,
owned directly by Parent. Merger Sub was formed solely for the purpose of engaging in the Transactions. Except for obligations or liabilities incurred in connection with its formation and the
Transactions, including those matters incidental thereto, Merger Sub has not and will not prior to the Effective Time have incurred, directly or indirectly, any obligations or liabilities or engaged
in any business activities of any type or kind whatsoever or entered into any agreements or arrangements with any Person.
Section 5.12 Company Arrangements. Other than this Agreement, as of the date hereof, none of Parent or
Merger Sub, or their
respective executive officers, directors or Affiliates, has entered into any agreement, arrangement or understanding with any of the executive officers, directors or Affiliates of the Company relating
in any way to the Transactions or the operations of the Company.
Section 5.13 Investment Intention. Parent is acquiring through the Transactions the shares of capital stock
of the Surviving
Corporation for its own account, for investment purposes only and not with a view to the distribution (as such term is used in Section 2(11) of the Securities Act) thereof. Parent understands
that the shares of capital stock of the Surviving Corporation have not been registered under the Securities Act or any "blue sky" Laws and cannot be sold unless subsequently registered under the
Securities Act, any applicable "blue sky" Laws or pursuant to an exemption from any such registration.
Section 5.14 Absence of Certain Agreements. As of the date of this Agreement, none of Parent, Intermediate
Holdco, Merger Sub or
any of their respective Affiliates (including the Guarantor and its Affiliates) has entered into any agreement, arrangement or understanding (in each case, whether oral or written), or authorized,
committed or agreed to enter into any agreement, arrangement or understanding (in each case, whether oral or written), (i) with any Third Party that would, in any material way, be reasonably
expected to limit Parent's, Intermediate Holdco's or Merger Sub's ability to comply with Parent's, Intermediate Holdco's or Merger Sub's obligations under this Agreement or (ii) with any Third
Party that would reasonably be expected to materially delay or prevent consummation of the Transactions. Parent is not aware of any matter related to Parent, Intermediate Holdco, Merger Sub or their
respective Affiliates or Representatives that would reasonably be expected, individually or in the aggregate, to materially delay, impede or interfere with the consummation of the Transactions.
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Section 5.15 No Additional Representations and Warranties. Except as provided in this Article V or in any certificate to be delivered by Parent or Merger Sub in connection with this Agreement, none of Parent, Merger Sub nor any
other Person on behalf of Parent or Merger Sub makes any express or implied representation or warranty with respect to Parent or Merger Sub, any of their Subsidiaries, or with respect to any other
information provided to the Company or their respective Affiliates in connection with the Transactions, including the accuracy, completeness or timeliness thereof. None of Parent, Merger Sub nor any
other Person will have or be subject to any claim, liabilities or any other obligation to the Company or any other Person resulting from the distribution or failure to distribute to the Company, or
the Company's use of, any such information, including any information, documents, projections, estimates, forecasts or other material made available to the Company for purposes of the Transactions,
unless and to the extent any such information is expressly included in a representation or warranty contained in this Article V or in any
certificate to be delivered by Parent or Merger Sub in connection with this Agreement.
Section 5.16 Acknowledgement of No Additional Representations and Warranties. Except for the representations
and warranties
contained in Article IV or in any certificate to be delivered by the Company in connection with this Agreement, Parent and Merger Sub acknowledge
that neither the Company nor any of its Subsidiaries or Representatives makes, and Parent and Merger Sub acknowledge that they have not relied upon or otherwise been induced by, any other express or
implied
representation or warranty by or on behalf of the Company or any of its Subsidiaries or with respect to any other information provided or made available to Parent or Merger Sub by or on behalf of the
Company in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to Parent, Merger Sub or their respective Representatives in
certain "data rooms" or management presentations in expectation of the Transactions.
ARTICLE VI.
COVENANTS OF THE COMPANY
Section 6.01 Conduct of the Company Pending the Merger.
(a) The
Company agrees that, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01, except as set forth in
Section 6.01(a) of the Company Disclosure Letter or
as required by Applicable Law or expressly contemplated by this Agreement or otherwise with the prior written consent of Parent (which shall not be unreasonably withheld, conditioned or delayed), the
Company will, and will cause each of its Subsidiaries to, (x) conduct its operations, in all material respects, in the ordinary course of business, and (y) use its commercially
reasonable efforts to preserve the goodwill and current relationships of the Acquired Companies with customers, suppliers and other Persons with which the Company or any of its Subsidiaries has
significant business relations; provided, however, that the failure by an Acquired Company to take any
action prohibited by any clause in the following sentence shall not be deemed to be a breach of the covenants contained in this sentence. Without limiting the foregoing, and as an extension thereof,
except as set forth in Section 6.01(a) of the Company Disclosure Letter or as required by Applicable Law or expressly contemplated by this
Agreement, or otherwise with the prior written consent of Parent (such shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries
to, from the date of this Agreement until the earlier of the Effective Time or the termination of this Agreement in accordance with Section 9.01:
(i) amend
the certificate of incorporation, bylaws or other organizational documents of the Acquired Companies;
(ii) issue,
sell, grant options or rights to purchase or receive, pledge, or authorize or propose the issuance, sale, grant of options or rights to purchase or pledge, or
issue any additional shares
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of,
or securities convertible or exchangeable for, or warrants exercisable for, any Company Capital Stock or other equity interests of the Acquired Companies, other than (A) shares of Company
Common Stock issuable (1) upon exercise of the Company Options in accordance with their terms or (2) in connection with the vesting and/or settlement of Company RSU Awards or Company DSU
Awards in accordance with their terms, or (B) crediting of Company DSU Awards under the Company's Director Deferred Compensation Plan to effectuate any election made by a director under the
terms of the Company's Director Deferred Compensation Plan;
(iii) make
or declare any dividend or distribution to the stockholders or other holders of equity interests of the Acquired Companies (except for any such transactions
solely among the Company and its wholly owned Subsidiaries or among the wholly owned Company's Subsidiaries);
(iv) except
in the ordinary course of business or as provided in Section 7.14, (A) amend, modify or terminate
(excluding any expiration of the term thereof in accordance with its terms) any Company Material Contract or waive, release or assign any material rights, claims or benefits under any Company Material
Contract, or (B) enter into any Contract that would have been a Company Material Contract had it been entered into prior to the date of this Agreement;
(v) sell,
assign, transfer, convey, pledge, lease, exclusively license, encumber or otherwise dispose of any material assets (other than Company IP, which is addressed in Section 6.01(a)(xii)) or properties,
except in the ordinary course of business or under the Company Credit Agreement;
(vi) except
as required by Applicable Law or the terms of this Agreement (including Section 6.01(a)(ii)), pursuant to
the terms of a Plan in existence as of the date hereof or in the ordinary course of business: (A) grant any retention, change in control, severance or termination pay to a current or former
employee, director or officer of any Acquired Company, other than to employees below the level of Vice President that, individually or in the aggregate, would not result in a material liability to any
Acquired Company, (B) enter into any collective bargaining agreement, (C) establish or adopt any material Plan, or materially amend any Plan (which, for the avoidance of doubt, excludes
offer letters for "at will" employment that provide for no severance or change in control benefits), (D) increase cash compensation payable to any director, officer, employee or other
individual service provider of any Acquired Company, other than increases in annual base salaries for 2021 (and corresponding target cash bonus opportunities) for employees at the level of Vice
President or below that do not exceed, in the aggregate, 4% of the aggregate annual base salaries for such positions in calendar year 2020, (E) hire or promote, or promise to hire or promote,
any officer or employee, other than a hire or promotion in the ordinary course of business of an employee hired or promoted to a position below the level of Senior Vice President, (F) terminate
(other than for cause or due to death or disability) the
employment of any employee at the level of Senior Vice President or above, or (G) take any action to accelerate the vesting or payment of any compensation or benefits for any current or former
employee or other individual service provider of any Acquired Company that would not otherwise accelerate under the terms of any Plan in effect prior to the date of this Agreement;
(vii) other
than the Merger contemplated hereby, merge, consolidate, liquidate, dissolve, restructure, recapitalize, statutorily convert or otherwise reorganize any Acquired
Company with any Person (including any other Acquired Company or any Subsidiary of the Acquired Companies) or adopt a plan or resolution providing for any such transaction;
(viii) other
than in accordance with Contracts in effect on the date hereof, make any loans or advances or capital contributions to, or investments in, any other Person
(other than for transactions among the Acquired Companies), except for (A) advances to employees or officers of the Acquired Companies for travel and other reasonable and documented
out-of-pocket expenses or (B) extensions of credit to customers pursuant to the terms of a Contract entered into prior to the date of this Agreement, in each case, incurred in the ordinary
course of business;
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(ix) (A)
make, change, amend or rescind any material Tax election, (B) change any material accounting principles, methods or practices, (C) enter into any
closing agreement with respect to material Taxes, (D) settle any material Tax claim or assessment, (E) file any material amended Tax Return, or (F) extend or waive the application
of any statute of limitations regarding the assessment or collection of any material Tax (except with respect to the routine extension of Tax Returns);
(x) except
as provided in Section 6.01(a)(ii), split, combine, reclassify, adjust, recapitalize, subdivide, amend the
terms of, redeem, purchase or otherwise acquire any shares of its capital stock or other equity interests or any options, warrants, securities or other rights exercisable for or convertible into any
such capital stock or equity securities;
(xi) (A)
form any Subsidiary or acquire any equity interest in any other Person (other than in accordance with Contracts in effect on the date hereof), (B) enter into
any new material line of business, or (C) open a new office of the Acquired Companies in any country where no Acquired Company has an office as of the date hereof;
(xii) except
in the ordinary course of business consistent with past practice, (A) transfer, assign, grant, or agree to grant, any Person any license or Lien, other
than any Permitted Liens, in, to or under any Company IP, or (B) abandon, cancel, dispose of, or permit to lapse, any material Company IP;
(xiii) repurchase,
redeem or otherwise acquire any Company Common Stock, except Company Common Stock repurchased from employees or consultants or former employees or
consultants of the Company pursuant to the exercise of repurchase rights or in connection with the withholding of Company Common Stock to satisfy Tax obligations or to pay the exercise price with
respect to Company Options, Company RSU Awards or Company DSU Awards;
(xiv) incur
any Indebtedness for borrowed money;
(xv) change
any of its methods of accounting or accounting practices in any material respect other than as required or permitted by GAAP (or, if applicable, International
Financial Reporting Standards) or Applicable Law;
(xvi) make
any capital expenditure in excess of $5,000,000 individually or $20,000,000 in the aggregate;
(xvii) other
than in accordance with Contracts in effect on the date hereof, make or offer to make any acquisition of any Person, business or division thereof (including by
merger, consolidation, acquisition of stock or asset, or otherwise);
(xviii) engage
in any transaction with, or enter into any agreement, arrangement or understanding with any affiliate of the Company or other Person covered by
Item 404 of Regulation S-K;
(xix) (A)
settle any Proceeding before or threatened to be brought before a Governmental Authority, other than monetary settlements not in excess of $1,000,000 individually,
or $7,500,000 in the aggregate (provided that such settlements do not involve any non-de minimis
injunctive or equitable relief or impose non-de minimis restrictions on the business activities of the Acquired Companies, taken as a whole, Parent or
any of its Subsidiaries) or (B) waive any material right with respect to any material claim held by the Acquired Companies in respect of any Proceeding brought or threatened in writing to be
brought before a Governmental Authority, in each case of clauses (A) and (B), other than any matters governed by Section 7.06;
(xx) terminate,
cancel or make any material changes to the structure, limits or terms and conditions of any Insurance Policies, including allowing any of the Insurance
Policies to expire
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without
renewing such Insurance Policies or obtaining comparable replacement coverage, or fail to pay premium or report known claims to an insurance carrier in a timely manner, in each case except as
would not reasonably be likely to be material to the Acquired Companies, taken as a whole;
(xxi) incur
any expenses for third party advisors related to the consummation of the Merger as contemplated by this Agreement; or
(xxii) authorize,
agree to take, enter into any agreement, or otherwise become obligated, to do any action prohibited under this Section 6.01(a).
Notwithstanding
anything to the contrary in this Agreement: (I) any action taken, or omitted to be taken, by any of the Acquired Companies pursuant to any Applicable Law or any
other directive, pronouncement or guideline issued by a Governmental Authority or industry group providing for business closures, "sheltering-in-place" or other restrictions that relates to, or arises
out of, any pandemic (including COVID-19), epidemic or disease outbreak shall in no event be deemed to constitute a breach of this Section 6.01(a); and (II) any action taken, or omitted to be
taken, by any of the Acquired Companies that is responsive to or as a result
of any pandemic (including COVID-19), epidemic or disease outbreak, as determined by the Acquired Companies, shall in no event be deemed to constitute a breach of this Section 6.01(a); provided
that, in the case of each of the foregoing clauses (I) and (II), the Company shall use reasonable best efforts
to consult with Parent promptly after taking (or omitting) any such action and consider in good faith any reasonable requests by Parent in respect of such actions or omissions.
(b) Nothing
contained in this Agreement shall give Parent, directly or indirectly, any right to control or direct the operations of the Acquired Companies prior to the
Closing. Prior to the Closing, each of the Company and Parent shall exercise, consistent with the other terms and conditions of this Agreement, complete control and supervision over their respective
businesses.
Section 6.02 No Solicitation; Adverse Recommendation
Change.
(a) Except
as otherwise permitted by this Section 6.02, from the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement in accordance with Section 9.01, the Company shall, and shall cause its Subsidiaries and its
and their respective directors, officers and employees to, and use reasonable best efforts to cause its other Representatives:
(i) to
(A) cease and cause to be terminated any existing solicitation, encouragement, discussion or negotiation with any Third Party with respect to an Acquisition
Proposal, (B) take the necessary steps to promptly inform any Third Parties with whom discussions and negotiations are then occurring or who make an Acquisition Proposal as of and after the
date hereof of the obligations set forth in this Section 6.02(a), (C) promptly (and, in any event, within 24 hours) terminate all
access granted to any Third Party and its Representatives to any physical or electronic dataroom, and (D) promptly (and, in any event, within 48 hours), request that all Third Parties
and their respective Representatives promptly return to the Company or destroy any non-public information concerning the Acquired Companies that was previously furnished or made available to such
Person or any of its representatives by or on behalf of the Company; and
(ii) to
not (A) solicit, initiate, seek or knowingly encourage or facilitate or encourage any inquiry, discussion, offer or request that constitutes, or would
reasonably be expected to lead to, an Acquisition Proposal, (B) enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information
relating to the Acquired Companies to, or afford access to the books or records or officers of the Acquired Companies to, any Third Party with respect to, or in a manner that would reasonably be
expect to lead to, an Acquisition Proposal; provided, that notwithstanding the foregoing, the Company shall be permitted to grant a waiver of or
terminate any "standstill" or similar agreement or obligation of any Third Party with
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respect
to the Acquired Companies to allow such Third Party to submit an Acquisition Proposal, (C) approve, endorse, recommend or enter into, or publicly propose to approve, endorse, recommend
or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other definitive agreement with respect to any Acquisition Proposal
(an "Alternative Acquisition Agreement") or (D) take or agree any of the actions prohibited by the foregoing clauses (A) through (C).
(b) Notwithstanding
anything to the contrary contained in Section 6.02(a), if at any time following the date hereof
and prior to adoption of this Agreement by the Required Company Stockholder Approval (i) the Company has received a written Acquisition Proposal from a Third Party that did not result from a
breach of Section 6.02(a) (other than any such breach that is immaterial and unintentional) and (ii) the Company Board determines in good
faith, after consultation with its financial and outside legal advisors, that (A) such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and
(B) the failure to take such action would be reasonably likely to be inconsistent with the Company Board's fiduciary duties under Applicable Law, then the Company and its Representatives may
(1) furnish non-public information, and afford access to the books or records or officers of the Acquired Companies, to such Third Party and its Affiliates and Representatives and
(2) engage in discussions and negotiations with such Third Party and its Affiliates and Representatives with respect to the Acquisition Proposal
(provided, that any material non-public information concerning the Acquired Companies made available to any Third Party shall, to the extent not
previously made available to Parent, be made available to Parent as promptly as reasonably practicable (and, in any event, within 48 hours) after it is made available to such Third Party); provided,
however, that the Company will not, will not permit any other Acquired Company or the Company
Representatives to, disclose any material non-public information regarding the Acquired Companies to such Person without the Company first entering into an Acceptable Confidentiality Agreement with
such Person if such Person is not already party to a confidentiality agreement with the Company. Notwithstanding anything to the contrary set forth in this Section 6.02(a) or elsewhere in this
Agreement, the Company, its Subsidiaries and its Representatives may, in any event (without the Company
Board having to make the determination in clause (ii) of the preceding sentence), contact any Third Party to (i) seek to clarify and understand the terms and conditions of any inquiry or
proposal made by such Third Party solely to determine whether such inquiry or proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal and (ii) inform such Third
Party that has made or, to the Knowledge of the Company, is considering making an Acquisition Proposal of the provisions of this Section 6.02.
(c) Except
as expressly permitted by this Section 6.02(c) or Section 6.02(d), neither the Company Board nor any committee thereof shall (i) withdraw or
modify, or propose publicly to withdraw or
modify, in a manner adverse to Parent, the Company Board Recommendation; (ii) fail to include the Company Board Recommendation in the Proxy Statement; (iii) adopt, authorize, approve or
recommend, or publicly propose to adopt, authorize, approve or recommend, any Acquisition Proposal made or received after the date hereof; (iv) if (A) the Company has received an
Acquisition Proposal that remains outstanding (and is not a tender offer or exchange offer addressed by clause (v) of this sentence), and (B) such Acquisition Proposal has not been
rejected by the Company, fail to reaffirm the Company Board Recommendation within five Business Days after receipt of a written request from the Parent to do so; provided that Parent may only request
one such reaffirmation with respect to any Acquisition Proposal; (v) fail to recommend against any
Acquisition Proposal that is a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act within 10 Business Days after the
commencement of such tender offer or exchange offer (any of the actions described in clauses (i) through (v) of this Section 6.02(c), an "Adverse Recommendation
Change"); or (vi) cause or permit the Company
to enter into any Alternative Acquisition Agreement. Notwithstanding anything to the contrary set forth in this Agreement, at any time prior to the receipt of the Required Company Stockholder
Approval, the Company Board shall be permitted, subject to
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compliance
with Section 6.02(d) and Article IX, (A) to terminate this Agreement to
concurrently enter into a definitive Alternative Acquisition Agreement and/or (B) to effect any Adverse Recommendation Change, if the Company Board determines in good faith, after consultation
with its financial and outside legal advisors, that failure to take such action could reasonably be expected to be inconsistent with the directors' fiduciary duties under Applicable Law. For the
avoidance of doubt, nothing in this Section 6.02(c) shall be deemed to prohibit, and no Adverse Recommendation Change shall be deemed to have
occurred in connection with, any of the actions permitted by Section 6.02(f).
(d) The
Company Board shall not be entitled to effect an Adverse Recommendation Change or terminate this Agreement pursuant to Section 9.01(h) unless, prior to adoption of this Agreement by the Required
Company Stockholder Approval:
(i) (A)
an Acquisition Proposal that did not result from a breach of Section 6.01(a) (other than a breach that is
immaterial and unintentional) is made to the Company by a Third Party following the date hereof; (B) the Company Board determines in good faith, after consultation with its financial and
outside legal advisors, that such Acquisition Proposal constitutes, or could reasonably be expected to lead to, a Superior Proposal, (C) the Company has provided, at least seventy-two
(72) hours in advance (or, if such seventy-two (72)-hour period does not include at least one (1) Business Day, ending on the first (1st) Business Day commencing after the passage of
such seventy-two (72)-hour period), written notice (a "Notice of Adverse Recommendation Change") to Parent that the Company intends to take such action
(it being understood that the delivery of a Notice of Adverse Recommendation Change and any amendment or update thereto and the determination to so deliver such notice, amendment or update will not,
by itself, constitute an Adverse Recommendation Change), which notice includes, as applicable, (1) written notice of the material terms and conditions of such Acquisition Proposal,
(2) an unredacted copy of the Alternative Acquisition Agreement in respect of such Acquisition Proposal, (3) an unredacted copy of any other Contracts to be entered into in connection
with such Acquisition Proposal that the Company Board determined was material to its decision that the Acquisition Proposal constitutes a Superior Proposal; (D) during such seventy-two
(72)-hour period following the time of Parent's receipt of the Notice of Adverse Recommendation Change, the Company shall have, and shall have caused its directors, officers and employees to, and
shall have used reasonable best efforts to cause its other Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and
conditions of this Agreement, the Commitment Letters and Guaranty so that such Acquisition Proposal ceases to constitute a Superior Proposal; and (E) following the end of such seventy-two
(72)-hour period described in the preceding clause (D), the Company Board shall have determined in good faith, after consultation with its financial and outside legal advisors, taking into
account any changes to this Agreement, the Commitment Letters and Guaranty irrevocably offered in writing by Parent in response to the Notice of Adverse Recommendation Change or otherwise, that the
Superior Proposal giving rise to the Notice of Adverse Recommendation Change continues to constitute a Superior Proposal and that the failure to make such Adverse Recommendation Change would still be
inconsistent with its fiduciary duties under Applicable Law; provided, however, that, in the event of
any material amendment of such Superior Proposal or any material change to the facts and circumstances relating to the Adverse Recommendation Change, the Company shall be required to issue a new
Notice of Adverse Recommendation Change or otherwise comply again with the requirements of this Section 6.02(d)
(provided, however, that for purposes of this sentence, references to the seventy-two (72)-hour period
above shall be deemed to be references to a
forty-eight (48)-hour period (or, if such forty-eight (48)-hour period does not include at least one (1) Business Day, ending on the first (1st) Business Day commencing after the passage of
such forty-eight (48)-hour period) from the time of Parent's receipt of the Notice of Adverse Recommendation Change); or
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(ii) (A)
an Intervening Event has occurred; (B) the Company Board has determined in good faith, after consultation with the Company's financial and outside legal
counsel, that the failure to effect an Adverse Recommendation Change would be reasonably likely to be inconsistent with its fiduciary duties under Applicable Law; (C) the Company has provided,
at least seventy-two (72) hours in advance (or, if such seventy-two (72)-hour period does not include at least one (1) Business Day, ending on the first (1st) Business Day commencing
after the passage of such seventy-two (72)-hour period), written notice (a "Notice of Intervening Event") to Parent that the Company intends to take
such action (it being understood that the delivery of a Notice of Intervening Event and any amendment or update thereto and the determination to so deliver such notice, amendment or update will not,
by itself, constitute an Adverse Recommendation Change), which notice includes reasonably detailed information describing the Intervening Event; (D) during such seventy-two (72)-hour period
following the time of Parent's receipt of the Notice of Intervening Event, the Company shall have, and shall have caused its directors, officers and employees to, and shall have used reasonable best
efforts to cause its other Representatives to, negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make such adjustments in the terms and conditions of this Agreement,
the Commitment Letters and Guaranty in response to such Intervening Event; (E) following the end of such seventy-two (72)-hour period described in the preceding clause (D), the Company
Board shall have determined in good faith, after consultation with its financial and outside legal advisors, taking into account any changes to this Agreement, the Commitment Letters and Guaranty
irrevocably offered in writing by Parent in response to the Notice of Intervening Event, that the failure to make such Adverse Recommendation Change would be inconsistent with its fiduciary duties
under Applicable Law.
(e) From
and after the date hereof until the Effective Time or the date, if any, on which this Agreement is terminated in accordance with Article IX, (i) as promptly as reasonably practicable (and in
any event within 48 hours) after receipt of any Acquisition Proposal
or any request for non-public information or inquiry that could reasonably be expected to lead to an Acquisition Proposal, the Company shall provide Parent with written notice of the material terms
and conditions of such Acquisition Proposal, request or inquiry (including, for avoidance of doubt, the identity of the party making such Acquisition Proposal), and (ii) the Company shall keep
Parent reasonably informed in all material respects, on a reasonably current basis, of oral or written communications regarding, and the status and details (including material amendments or proposed
material amendments) of, any such Acquisition Proposal, request or inquiry.
(f) Nothing
contained in this Agreement shall prohibit the Company or the Company Board, directly or indirectly through its Representatives, from (i) taking and
disclosing to the Company's stockholders a position with respect to a tender or exchange offer by a Third Party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act
(or any similar communication to the Company's stockholders), (ii) making any "stop, look and listen" communication to the Company's stockholders pursuant to Rule 14d-9(f) promulgated
under the Exchange Act or a factually accurate public statement by the Company that describes the Company's receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto,
or (iii) any other communication to the Company's stockholders if (in the case of this clause (iii)) the Company Board has determined in good faith, after consultation with its financial
and outside legal advisors, that the failure to do so would be inconsistent with the directors' fiduciary duties under Applicable Law.
Section 6.03 Access to Information. From the date hereof
until the earlier of the Effective Time and the termination of this Agreement pursuant to Article IX, the Company shall, and shall cause its
Subsidiaries to, afford to Parent and its Representatives reasonable access, during normal business hours, in such manner as to not unreasonably interfere with the operation of the business of the
Acquired Companies, to their respective properties, offices, facilities, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of the Acquired Companies, and shall
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furnish
such Representatives with existing financial and operating data and other information concerning the affairs of the Acquired Companies as such Representatives may reasonably request; provided, that such
investigation shall only be upon reasonable notice and shall be at Parent's sole cost and expense; provided, further, that nothing herein shall require the
Acquired Companies to disclose any information
to Parent or its Representatives if such disclosure would, in the reasonable judgment of the Company, (i) result in the disclosure of trade secrets or competitively sensitive or classified
information, (ii) violate Applicable Law or the provisions of any Contract (including any confidentiality agreement or similar agreement or arrangement) to which any Acquired Company is a party
or (iii) jeopardize any attorney-client or other legal privilege held by any Acquired Company (provided, that, at Parent's request, the Company
shall use reasonable best efforts to develop an arrangement to communicate or provide the applicable information (or a portion thereof) in a manner that would not conflict with the foregoing
clauses (i) through (iii)). Nothing herein shall authorize Parent or its Representatives to undertake any environmental testing involving sampling of soil, groundwater or building materials, or
other similar invasive techniques at any of the Acquired Companies' properties without the prior written consent of the Company. All information obtained by Parent, Merger Sub and their respective
Representatives shall be subject to the Confidentiality Agreement. No investigation or access permitted pursuant to this Section 6.03 shall
affect or be deemed to modify any representation or warranty made by the Company hereunder but may be taken into account for purposes of determining whether the applicable conditions to Closing set
forth in Article VIII have been satisfied. Parent agrees that it will not, and will cause its Representatives not to, use any information
obtained pursuant to this Section 6.03 for any competitive or other purpose unrelated to the consummation of the Transactions.
ARTICLE VII.
ADDITIONAL COVENANTS OF THE PARTIES
Section 7.01 Appropriate Action; Consents; Filings.
(a) The
Company, Parent and Merger Sub shall use their reasonable best efforts to (and shall cause their respective Subsidiaries and Affiliates to) (i) promptly take,
or cause to be taken, all appropriate action and do, or cause to be done, all things necessary, proper or advisable under Applicable Law, including Antitrust Law, or otherwise to consummate and make
effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be
obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries or Affiliates, or to avoid any action or proceeding by any Governmental Authority (including those in connection
with the Antitrust Laws), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions and (iii)(A) as promptly as reasonably practicable,
and in any event within five (5) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required
under the HSR Act, (B) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this
Agreement required under any other applicable Antitrust Laws, and (C) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other
required submissions, with respect to this Agreement required under any other Applicable Law. The Company and Parent shall furnish to each other all information required for any application or other
filing under the rules and regulations of any Applicable Law in connection with the Transactions.
(b) Without
limiting the generality of anything contained in this Section 7.01, each party hereto shall (to the extent
not prohibited by Government Authority or Applicable Law) use reasonable best efforts to (and shall cause its Subsidiaries and Affiliates to): (i) give the other parties prompt notice of the
making or commencement of any request, inquiry, investigation, action or legal proceeding by or
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before
any Governmental Authority with respect to the Merger or any of the other Transactions; (ii) keep the other parties reasonably informed as to the status of any such request, inquiry,
investigation, action or legal proceeding; (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the approval of the Merger or any of the
other Transactions; (iv) respond as promptly as practicable to any additional requests for information received by any party from any Antitrust Authority any other Governmental Authority with
respect to the
Transactions or filings contemplated by Section 7.01(a); and (v) (A) obtain termination or expiration of the waiting period under the HSR
Act and such other approvals, consents and clearances as may be necessary, proper or advisable under any Applicable Laws, including any other applicable Antitrust Laws and (B) prevent the entry
in any action or proceeding brought by a Governmental Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions. To the
extent not prohibited by Governmental Authority or Applicable Law, each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in
connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other Transactions. In
addition, except as may be prohibited by any Governmental Authority or by Applicable Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto
will permit Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be
consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, inquiry, investigation, action or legal proceeding.
(c) Notwithstanding
anything to the contrary in this Agreement, in connection with obtaining any approval or consent related to any Applicable Law, Parent shall (and shall
cause its Subsidiaries and Affiliates to) cooperate in good faith with the Governmental Authorities and shall undertake (and cause its Subsidiaries and Affiliates to undertake) promptly any and all
action to complete lawfully the Transactions as soon as practicable (but in any event prior to the End Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove the
actual or threatened commencement of any Proceeding in any forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or
consent of any Governmental Authority to the Transactions the absence of which would) delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Merger, including
(i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations
or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business and (ii) promptly effecting the disposition, licensing or
holding separate of assets or lines of business, in each case, at such time as may be necessary to permit the lawful consummation of the Transactions on or prior to the End Date. The entry by any
Governmental Authority in any Proceeding of a Governmental Order permitting the consummation of the Transactions but requiring any assets or lines of business to be sold, licensed or otherwise
disposed or held separate thereafter (including the business and assets of the Acquired Companies) shall not, individually, or in the aggregate (together with one or more other changes, events,
circumstances, developments or facts) be deemed a failure to satisfy any condition specified in Article VIII.
(d) Parent
shall be solely responsible for and pay all filing and related fees required in connection with obtaining any consents or approvals of the type described in this Section 7.01.
Section 7.02 Proxy Statement.
(a) Subject
to Parent's timely performance of its obligations under Section 7.02(b), as promptly as reasonably
practicable following the date of this Agreement, the Company shall prepare and cause to be filed with the SEC a proxy statement in preliminary form, as required by the Exchange Act, relating
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to
the Company Stockholder Meeting (together with any amendments or supplements thereto, the "Proxy Statement"). Except as contemplated by the express
terms of Section 6.02, the Proxy Statement shall include the Company Board Recommendation with respect to the Merger. The Company shall promptly
notify Parent upon the receipt of any comments from the SEC (or the staff of the SEC) or any request from the SEC (or the staff of the SEC) for amendments or supplements to the Proxy Statement, and
shall promptly provide Parent with copies of all correspondence between the Company and its Representatives, on the one hand, and the SEC (or the staff of the SEC), on the other hand. Each of the
parties hereto shall use their reasonable best efforts to respond promptly to any comments of the SEC (or the staff of the SEC) with respect to the Proxy Statement. The Company shall use its
reasonable best efforts so that the Proxy Statement will comply as to form, in all material respects, with the provisions of the Exchange Act and the rules and regulations promulgated thereunder and
to cause the definitive Proxy Statement to be mailed to the Company's stockholders as of the record date established for the Company Stockholder Meeting as promptly as reasonably practicable after the
date of this Agreement, and in no event more than ten (10) Business Days after the date on which the SEC confirms that it has no further comments on the Proxy Statement. Prior to filing or
mailing the Proxy Statement (or any amendment or supplement thereto) or responding to any comments of the SEC (or the staff of the SEC) with respect thereto, the Company shall provide Parent a
reasonable opportunity to review and to propose comments on such document or response to the extent permitted by Applicable Law, and the Company shall consider in good faith the inclusion or
reflection of any such comments so provided; provided, however, that the Company may amend or supplement
the Proxy Statement without the review or comment of Parent in the event of an Adverse Recommendation Change pursuant to Section 6.02. The
Company agrees that none of the information supplied by it or its Subsidiaries for inclusion in the Proxy Statement shall contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, that (i)
notwithstanding the foregoing, no covenant is made by the Company with respect to any information supplied by Parent,
Merger Sub or any of their Affiliates or Representatives, or any of the Financing Sources, for inclusion or incorporation by reference in the Proxy Statement and (ii) updates thereafter in
responses to claims shall not per se be deemed to be a breach for purposes of this Section 7.02(a).
(b) Parent
shall, as promptly as possible, furnish to the Company all information concerning Parent and Merger Sub as may be reasonably requested by the Company in
connection with the Proxy Statement, including such information that is required by the Exchange Act and the rules and regulations promulgated thereunder to be set forth in the Proxy Statement, and
shall otherwise use reasonable best efforts to assist and cooperate with the Company in the preparation of the Proxy Statement and the resolution of comments from the SEC (or the staff of the SEC).
Parent will, upon reasonable request of the Company, confirm and/or supplement the information relating to Parent or Merger Sub supplied by it for inclusion in the Proxy Statement, such that at the
time of the mailing of the Proxy Statement or any amendments or supplements thereto, and at the time of the Company Stockholder Meeting, such information shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not
misleading.
(c) In
accordance with the Company's organizational documents, the Company shall use reasonable best efforts to, as promptly as reasonably practicable (but subject to the
last sentence of this Section 7.02(c) and the timing contemplated in Section 7.02(a)),
(i) establish a record date for and give notice of a meeting of its stockholders, for the purpose of voting upon the adoption of this Agreement (including any adjournment or postponement
thereof, the "Company Stockholder Meeting") and (ii) mail to the holders of Company Common Stock as of the record date established for the
Company Stockholder Meeting a Proxy Statement (such date, the "Proxy Date"). Without the prior written consent of Parent (not to be unreasonably
withheld, conditioned or delayed), in no event shall the
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Proxy
Date be changed to such a date that would result in the Company Stockholder Meeting being within 10 Business Days of the End Date, except as required by Applicable Law. Without the prior written
consent of Parent, the adoption of this Agreement shall be the only matter (other than matters of procedures and matters required by Applicable Law to be voted on by the Company's stockholders in
connection with the adoption of this Agreement) that the Company shall propose to be acted on by the stockholders of the Company at the Company Stockholder Meeting. The Company shall use reasonable
best efforts to duly call, convene and hold the Company Stockholder Meeting as promptly as reasonably practicable after the Proxy Date; provided, however,
that the Company may postpone, recess or adjourn the Company Stockholder Meeting: (A) with the consent of Parent, (B) for the
absence of a quorum, (C) to solicit additional proxies for the purpose of obtaining the Required Company Stockholder Approval or (D) to allow reasonable additional time for the filing
and distribution of any supplemental or amended disclosure which the Company Board has determined in good faith (after consultation with its outside legal counsel) is necessary under Applicable Laws
and for such supplemental or amended disclosure to be disseminated to and reviewed by the Company's stockholders prior to the Company Stockholders Meeting. Unless the Company Board shall have effected
an Adverse Recommendation Change pursuant to Section 6.02, the Company shall use its reasonable best efforts to solicit proxies in favor of the
adoption of this Agreement. Notwithstanding anything to the contrary contained in this Agreement and notwithstanding any Adverse Recommendation Change, the Company shall submit this Agreement to the
stockholders of the Company for adoption at the Company Stockholder Meeting; provided, however, that the
Company shall not be required to hold the Company Stockholder Meeting if this Agreement is terminated in accordance with Article IX.
(d) If
at any time prior to the Effective Time any event or circumstance relating to the Company or Parent or any of the Company's or Parent's respective Subsidiaries, or
their respective officers or directors, is discovered by the Company or Parent, respectively, which, pursuant to the Exchange Act, should be set forth in an amendment or a supplement to the Proxy
Statement, such party shall promptly inform the others. Each of Parent, Merger Sub and the Company agrees to correct any information provided by it for use in the Proxy Statement which shall have
become false or misleading.
Section 7.03 Confidentiality; Public
Announcements. Except as otherwise contemplated by Section 6.02(f) (and, for the avoidance of doubt, nothing
herein shall limit the rights of the Company or the Company Board under Section 6.02), prior to any Adverse Recommendation Change, the Company,
Parent and Merger Sub shall consult with each other before issuing any press release or public announcement with respect to this Agreement or the Transactions, and none of the parties or their
Affiliates shall issue any such press release or public announcement prior to obtaining the other parties' consent (which consent shall not be unreasonably withheld or delayed), except that no such
consent shall be necessary to the extent disclosure may be required by Applicable Law or applicable stock exchange rule or any listing agreement of any party hereto. The Company may, without Parent's
or Merger Sub's consent, communicate to its employees, customers, suppliers and consultants in a manner consistent with prior communications of the Company or consistent with a communications plan
previously agreed to by Parent and the Company to the extent such prior communications are still accurate, in which case such communications may be made consistent with such plan. Notwithstanding
anything to the contrary set forth therein or herein, the Confidentiality Agreement shall continue in full force and effect until the Closing and thereafter terminate and be of no further force and
effect. Nothing in this Section 7.03 shall, but subject to the Confidentiality Agreement, prevent any Affiliate of Parent that is a private
equity or similar investment fund, or any manager or general partner of any such fund, from reporting or disclosing with respect to fundraising, marketing, informational or reporting activities, on a
confidential basis, to its partners, investors, potential investors or similar parties, general information regarding this Agreement and the Transactions, in each case subject to customary obligations
of confidentiality with respect to non-public information such as transaction value or other specific economic terms. For the avoidance of doubt, any public filings providing notice to or seeking
approval from any Governmental Authority made pursuant to Section 7.01 shall be governed by Section 7.01 and not this Section 7.03.
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Section 7.04 Indemnification of Officers and Directors.
(a) From
and after the Effective Time, Parent agrees that it shall cause the Surviving Corporation to indemnify and hold harmless each present and former (in each case, as
of the Effective Time) director, officer and employee of the Acquired Companies (each, a "7.04 Indemnitee") against any costs or expenses (including
reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time,
to the fullest extent that the Acquired Companies, as the case may be, would have been permitted under or required by Applicable Law and their respective certificates of incorporation, bylaws,
indemnification agreements or other organizational documents in effect on the date of this Agreement. Parent also agrees to cause the Surviving Corporation to promptly advance reasonable and
documented out-of-pocket expenses as incurred by each 7.04 Indemnitee to the fullest extent permitted under or required by Applicable Law and their respective certificates of incorporation, bylaws,
indemnification agreements or other organizational documents in effect on the date of this Agreement. Without limiting the foregoing, Parent shall cause the Acquired Companies (i) to maintain
for a period of not less than six (6) years from the Effective Time provisions in their respective certificates of incorporation, bylaws and other organizational documents concerning the
indemnification and exoneration (including provisions relating to expense advancement) of the 7.04 Indemnitees that are no less favorable to those Persons than the provisions of the certificates of
incorporation, bylaws, indemnification agreements, and other organizational documents of the Acquired Companies, as applicable, in each case, as of the date of this Agreement and (ii) not to
amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Applicable Law.
(b) For
a period of six (6) years from the Effective Time, Parent shall cause the Surviving Corporation to maintain in effect directors' and officers' liability
insurance covering those Persons who are currently covered by the Acquired Companies' directors' and officers' liability insurance policies on terms not less favorable than the terms of such current
insurance coverage; provided, however, that if any Proceeding is asserted or made against those Persons
who are currently covered by the Acquired Companies' directors' and officers' liability insurance policies on or prior to the sixth (6th) year anniversary of the Effective Time, any insurance required
to be maintained under this Section 7.04 shall be continued in respect of such claim until the final disposition thereof. Notwithstanding the
foregoing, the Company may and (if the Company does not) Parent shall cause the Surviving Corporation to cause coverage to be extended under the current directors' and officers' liability insurance by
obtaining at or prior to the Closing Date a prepaid, non-cancelable six (6)-year "tail" policy (containing terms not less favorable than the terms of such current insurance coverage) with respect to
matters existing or occurring at or prior to the Effective Time.
(c) Notwithstanding
anything contained in this Agreement to the contrary, this Section 7.04 shall survive the
consummation of the Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent and the Surviving Corporation. In the event that Parent or the Surviving
Corporation or any of their respective successors or assigns consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation
or merger or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of
Parent or the Surviving Corporation, as the case may be, shall succeed to the obligations set forth in this Section 7.04. In addition, Parent and
the Surviving Corporation shall not distribute, sell, transfer or otherwise dispose of any of its assets in a manner that could reasonably be expected to render the Surviving Corporation unable to
satisfy its obligations under this Section 7.04.
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(d) Parent
shall assume, and be jointly and severally liable for, and shall cause the Acquired Companies to honor, each of the covenants in this Section 7.04.
Section 7.05 Section 16 Matters. Prior to the Effective Time, the Company shall take such actions
as are required to cause the disposition of Company Common Stock, Company Options, Company RSU Awards, Company DSU Awards or other securities in connection with the Transactions by each individual who
is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt from Section 16(b) of the Exchange Act pursuant to
Rule 16b-3 under the Exchange Act.
Section 7.06 Stockholder Litigation. The Company shall use reasonable best efforts to prevent the entry
of (and, if entered, to have vacated, lifted, reversed or overturned) any injunction, order, ruling, decree, judgment or similar order that results from any Proceeding against the Company or any of
its directors by any holder of Company Common Stock arising out of or relating to this Agreement or the Transactions. The Company shall provide Parent with prompt notice of, and copies of all
pleadings and correspondence relating to, any Proceeding against the Company or any of its directors by any holder of Company Common Stock arising out of or relating to this Agreement or the
Transactions. The Company shall keep Parent reasonably informed on a current basis regarding any stockholder litigation against the Company or its directors relating to the Transactions, whether
commenced prior to or after the execution and delivery of this Agreement and give Parent the opportunity to participate in (but not direct or control) the defense, settlement or compromise of any such
Proceeding, at Parent's sole cost and expense, and no such settlement or compromise shall be agreed to without the prior written consent of Parent, which consent shall not be unreasonably withheld,
conditioned or delayed.
Section 7.07 Employee Matters.
(a) For
the period commencing at the Effective Time and ending on the earlier of (x) the date that is eighteen (18) months following the Effective Time and
(y) the date on which the employment of a Continuing Employee terminates, Parent, the Surviving Corporation or any of their respective Affiliates shall provide each Continuing Employee with
(i) an annual base salary and incentive compensation opportunities that are no less favorable, in the aggregate, than the annual base salary and incentive compensation opportunities (in each
case, other than equity or equity-related compensation incentives) provided to such Continuing Employee immediately prior to the Effective Time, (ii) employee and fringe benefits (including
vacation/leave, health, welfare and retirement benefits, but excluding for such purposes any equity or equity-related awards, incentive compensation, severance benefits, defined benefit pension
benefits and retiree medical benefits) that are no less favorable than (A) those provided to such Continuing Employee immediately prior to the Effective Time or (B) those provided to
similarly situated employees of Parent and (iii) severance benefits and protections that are no less favorable than those provided to such Continuing Employee immediately prior to the Effective
Time, taking into account such Continuing Employee's additional period of service and increases (but not decreases) in compensation following the Closing. Additionally, following the Closing, Parent,
the Surviving Corporation or any of their respective Affiliates shall assume, honor and perform in accordance with their terms the severance protections and benefits under the Plans set forth on Section 4.16(a)
of the Company Disclosure Letter.
(b) Effective
as of the Effective Time and thereafter, Parent and its Affiliates shall recognize, or shall cause the Surviving Corporation to recognize, each Continuing
Employee's employment or service with any Acquired Company (including any current or former Affiliate thereof or any predecessor of such Acquired Company) prior to the Closing for purposes of
determining, as applicable, eligibility for participation, vesting and entitlement of the Continuing Employee under all employee benefit plans maintained by the Surviving Corporation, Parent or any of
their respective Affiliates, including vacation plans or arrangements, 401(k) or other retirement plans and any severance or welfare plans, to the
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same
extent as such Continuing Employee was entitled, before the Effective Time, to credit for such service under any similar Plan and except to the extent such recognition would result in a
duplication of benefits. In addition, and without limiting the generality of the foregoing, effective as of the Effective Time and thereafter, Parent and its Affiliates shall, or shall cause the
Surviving Corporation to (i) cause any pre-existing conditions or limitations, eligibility waiting periods, actively at work requirements, evidence of insurability requirements or required
physical examinations under any health or similar plan of the Surviving Corporation, Parent or any of their respective Affiliates to be waived with respect to Continuing Employees and their eligible
dependents, except to the extent that any waiting period, exclusions or requirements still applied to such Continuing Employee under the comparable Plan in which such Continuing Employee participated
immediately before the Effective Time, and (ii) fully credit each Continuing Employee with all deductible payments, co-payments and other out-of-pocket expenses incurred by such Continuing
Employee and his or her covered dependents under the medical, dental, pharmaceutical or vision benefit plans of the Acquired Companies prior to the Closing during the plan year in which the Closing
occurs for the purpose of determining the extent to which such Continuing Employee has satisfied the deductible, co-payments, or maximum out-of-pocket requirements applicable to such Continuing
Employee and his or her covered dependents for such plan year under any medical, dental, pharmaceutical or vision benefit plan of the Surviving Corporation, Parent or any of their respective
Affiliates, as if such amounts had been paid in accordance with such plan.
(c) In
the event the Closing Date occurs prior to the payment of bonuses under the Company's 2020 bonus program, Parent and its Affiliates shall cause each Continuing
Employee to be paid such employee's 2020 annual bonus pursuant to the terms and conditions set forth in such program; provided, however, that in the event
the Closing Date occurs on or prior to March 15, 2021, each Continuing Employee's bonus shall be no less than such
employee's 2020 target annual bonus. Such annual bonuses shall be paid no later than March 15, 2021, subject to the Continuing Employee's continued employment through the payment date; provided,
however, that a Continuing Employee shall remain entitled to such employee's 2020 bonus if
such employee is terminated without cause or resigns for good reason, in either event, prior to the payment date.
(d) If
requested by Parent in writing at least ten (10) Business Days prior to the Effective Time, the Company Board will authorize the full vesting of all benefits
under and termination of any and all Plans intended to qualify as a qualified cash or deferred arrangement under Section 401(k) of the Code, effective no later than the day immediately
preceding the Closing Date. Each Continuing Employee who is a participant in a 401(k) plan of the Acquired Companies will be allowed to participate, effective as of the Effective Time, in a tax
qualified plan which includes a cash or deferred arrangement intended to satisfy the provisions of Section 401(k) of the Code that is sponsored by Parent or an Affiliate of Parent (the
"Parent 401(k) Plan"). Parent will, or will cause an Affiliate to, take all actions necessary so that the Parent 401(k) Plan will accept rollover
contributions of "eligible rollover distributions" (within the meaning of Section 401(a)(31) of the Code, inclusive of loans) from the 401(k) Plan of the Acquired Companies and Parent (or its
Affiliate) will thereafter maintain such loan under the Parent 401(k) Plan.
(e) The
provisions of this Section 7.07 are solely for the benefit of the parties to this Agreement, and no Continuing
Employee or other current or former employee, director, or consultant (including any beneficiary or dependent thereof) shall be regarded for any purpose as a third-party beneficiary of this Agreement,
and no provision of this Section 7.07 shall create such rights in any such Persons or otherwise confer upon or give to any Person, other than the
parties hereto and their respective permitted successors and assigns, any legal or equitable or other rights or remedies with respect to the matters provided for in this Section 7.07 under or by
reason of any provision of this Agreement. Nothing herein shall (i) guarantee employment or continued service for
any period of time or preclude the ability of Parent, the Surviving Corporation or any of their respective Affiliates, as applicable, to
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terminate
the employment of any Continuing Employee at any time and for any reason, (ii) require Parent, the Surviving Corporation or any of their respective Affiliates, as applicable, to
continue any Plans, or other employee benefit plans or arrangements or prevent the amendment, modification or termination thereof after the Effective Time or (iii) amend any Plans or other
employee benefit plans or arrangements.
Section 7.08 Notices of Certain Events. The Company shall give prompt notice to Parent, and Parent shall
give prompt notice to the Company, of (a) any notice or other communication received by such party from any Governmental Authority or any other Person in connection with this Agreement or the
Transactions or from any Person alleging that the consent of such Person is or may be required in connection with the Transactions, if the subject matter of such communication or the failure of such
party to obtain such consent could be material to the Company, the Surviving Corporation or Parent, (b) any Proceedings commenced or, to such party's Knowledge, threatened against, relating to
or involving or otherwise affecting such party or any of its Subsidiaries which relate to this Agreement or the Transactions, and (c) any Effect that has caused, or would reasonably be expected
to cause, any of the conditions set forth in Article VIII not to be satisfied.
Section 7.09 Stock Exchange Delisting. Prior to and following the Effective Time, the Company (and the
Surviving Corporation) shall cause the Company's securities to be de-listed from Nasdaq and de-registered under the Exchange Act as promptly as practicable following the Effective Time in compliance
with Applicable Law, and prior to the Effective Time the Company shall reasonably cooperate with Parent with respect thereto.
Section 7.10 Merger Sub. Parent will take all actions necessary to (a) cause Merger Sub to perform
its obligations under this Agreement and to consummate the Merger on the terms and conditions set forth in this Agreement and (b) ensure that, prior to the Effective Time, Merger Sub shall not
conduct any business, or incur or guarantee any indebtedness or make any investments, other than as specifically contemplated by this Agreement and any matters incidental thereto.
Section 7.11 Conduct of Business by Parent Pending the Merger. Parent and Merger Sub covenant and agree
that, between the date of this Agreement and the earlier of the Effective Time and the date, if any, on which this Agreement is terminated pursuant to Section 9.01, Parent and Merger Sub shall not,
and shall not permit any of their Affiliates to, acquire or agree to acquire by merging or
consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or
otherwise acquire or agree to acquire any material assets if such business competes in any line of business of the Acquired Companies and the entering into of a definitive agreement relating to, or
the consummation of, such acquisition, merger or consolidation would reasonably be expected to (a) impose any material delay in the obtaining of, or increase the risk of not obtaining, any
authorization, consent, order, declaration or approval of any Governmental Authority necessary to consummate the Transactions or the expiration or termination of any applicable waiting period,
(b) materially increase the risk of any Governmental Authority entering a Governmental Order prohibiting the consummation of Transactions, (c) materially increase the risk of not being
able to remove any such Governmental Order on appeal or otherwise or (d) materially delay or prevent the consummation of the Transactions.
Section 7.12 Financing Cooperation.
(a) The
Company shall, and shall cause its Subsidiaries to, and shall use commercially reasonable efforts to cause any of its and their respective officers and employees of
appropriate seniority and expertise to, use commercially reasonable efforts to provide (or cause its Subsidiaries to provide) such cooperation in connection with the arrangement of the Financing (or
any permitted replacement, amended, modified or alternative financing, including any Replacement Commitment Facility) as is reasonably requested by Parent; provided that the Company shall in no event be
required to provide (or cause its Subsidiaries to provide) such assistance that shall unreasonably
interfere with its or its
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Subsidiaries'
ongoing business operations. Such assistance shall include using reasonable best efforts to do the following, each of which shall be at Parent's sole cost and expense:
(i) furnish,
or cause to be furnished to, Parent, Merger Sub and Intermediate Holdco and the Financing Sources, the Required Information and such other information
regarding the Acquired Companies as Parent may reasonably request in connection with the preparation of bank information memoranda, lenders' presentations and other customary marketing materials
relevant to the Debt Financing (provided that Parent acknowledges that the Company SEC Documents provide a substantial amount of such information under
this clause (i) that Parent reasonably expects to require as of the date of this Agreement);
(ii) make
senior management of the Company available to assist in the preparation of rating agency presentations, meetings with rating agencies, investor presentations and
due diligence sessions with respect to the Debt Financing;
(iii) assist
Parent and its Financing Sources under the Debt Commitment Letter in the preparation of (A) customary bank information memoranda and similar documents or
materials for any portion of the Debt Financing and (B) customary materials for rating agency presentations (provided that the scope and nature
of financial information to be provided by Company is addressed exclusively in the foregoing clause (i));
(iv) execute
and deliver customary authorization letters ("Rep Letters") that (x) authorize the distribution of
information to prospective lenders or investors relating to the Financing and (y) include customary representations and confirmations;
(v) furnishing
at least four (4) Business Days prior to the Closing Date, documentation and other information reasonably requested at least nine (9) Business
Days prior to the Closing Date by the
Financing Sources under applicable "know-your-customer", beneficial ownership and anti-money laundering rules and regulations; and
(vi) assist
with Parent's preparation of the Debt Financing Documents and Intermediate Holdco's preparation of the Preferred Equity Financing Documents and the Holdco PIK
Financing Documents, and coordinating with Parent for the taking of all corporate, limited liability company, partnership or other similar actions at Closing (subject to clause (b)(iii) below)
as reasonably requested by Parent to permit the consummation of the Financing; provided that no such actions shall be required to be effective prior to
the Closing.
(b) Notwithstanding
Section 7.12(a), (i) neither the Company nor any of its Affiliates will be required to make
any filings with the SEC in connection with the Financing (other than in any applicable proxy statement), (ii) nothing in this Section 7.12 shall require any such action to the extent it would
(A) unreasonably interfere with the business or operations of the
Acquired Companies or require the Acquired Companies to agree to pay any fees, reimburse any expenses or give any indemnities, in any case prior to the Closing, for which Parent does not promptly
reimburse or indemnify it, as the case may be, under this Agreement or (B) require the Company, any Company Party or their respective Representatives to execute, deliver or enter into, or
perform any Financing Document that in each case would take effect prior to the Closing (other than, for the avoidance of doubt, (1) in response to requests consistent with those set forth in
clause (a)(v) above, certifications or other materials as may be required by bank regulatory authorities and (2) the Rep Letters), (iii) none of the Company Board or similar
governing body of any other Acquired Company shall prior to the Closing be required to adopt resolutions approving any Financing Document that in each case becomes effective prior to the Closing and
any such adoption or approval at Closing shall be performed by such board of directors (or other similar governing body) as constituted after the Effective Time and Closing, (iv) the Company's
obligations under this Section 7.12 shall be subject to the Financing Sources being bound by confidentiality agreements in accordance with
customary market practice, and
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(v) none
of the Acquired Companies shall be required to provide any information to the extent it would (A) cause significant competitive harm to any Acquired Company if the Transactions
are not consummated, (B) violate Applicable Law or the provisions of any material Contract (including any confidentiality agreement or similar agreement or arrangement) to which any Acquired
Company is a party, (C) jeopardize any attorney-client or other legal privilege or (D) violate any applicable confidentiality obligation of any Acquired Company.
(c) The
Company shall have the reasonable right to review marketing materials used in connection with the arrangement of the Financing prior to the dissemination of such
materials to potential lenders or other counterparties to any proposed financing transaction (or filing with any Governmental Authority); provided that
the Company shall communicate in writing its comments with respect to the Acquired Companies, if any, to Parent and its counsel within a reasonable period of time under the circumstances and
consistent with the time accorded to other participants who were asked to review and comment on such marketing materials. The Company shall not be required to agree to any contractual obligation
relating to the Preferred Equity Financing or the Holdco PIK Financing (without prejudice to clause (b)(i) above). The Company shall not be required to agree to any contractual obligation
relating to the Debt Financing that is not conditioned upon the Closing and that does not terminate without liability to the Company and its Affiliates upon the termination of this Agreement. Unless
otherwise agreed by the parties, the Company shall not be required to deliver or cause the delivery of any legal opinions or solvency certificates in connection with the Financing.
(d) Parent
shall indemnify and hold harmless the Acquired Companies, and each of their respective directors, officers, employees, agents and other Representatives, from and
against any and all liabilities, costs or expenses suffered or incurred in connection with the Financing or any information, assistance or activities provided in connection therewith (other than to
the extent such losses arise from historical information provided by the Company or its Representatives (but not to the extent such information has been superseded by information provided by the
Company or its Representatives or modified by Parent or its Representatives; provided such superseded or modified information, as the case may be, is correct in all material respects) or the gross
negligence, willful misconduct or material breach of this Section 7.12 by the Company or its Representatives). Parent shall promptly reimburse
the Acquired Companies for any and all documented out-of-pocket third party costs and expenses incurred by the Acquired Companies and each of their respective directors, officers, employees, agents
and other Representatives in connection with the Financing or such assistance.
(e) Parent
acknowledges and agrees that obtaining the Financing, or any alternative financing, is not a condition to Closing. Each Acquired Company hereby consents to the
use of its respective logos in connection with the Financing; provided that such logos, names and trademarks shall be used solely in a manner that is
not intended to or reasonably likely to harm or disparage the Acquired Companies or their respective reputation or goodwill.
(f) Notwithstanding
anything to the contrary herein, it is understood and agreed that the condition precedent set forth in Section 8.02(b), as applied to the Company's obligations under this Section 7.12, shall be
deemed to be satisfied unless the Financing has not been obtained as a direct result of the Company's willful and material breach of its obligations under this Section 7.12.
Section 7.13 Financing.
(a) Intermediate
Holdco, Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary
or advisable to arrange and obtain the Financing as promptly as practicable following the date of this Agreement and to consummate the Financing on or prior to the Closing Date. Such actions shall
include, but not be limited to, using reasonable best efforts to do the following: (i) maintain in effect the Commitment Letters; (ii) cause the officers and employees of Parent and its
Affiliates to participate in, and assistance with, the preparation of rating agency presentations and meetings with rating agencies;
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(iii) satisfy,
or cause to be satisfied, on a timely basis all Financing Conditions; (iv)(A) negotiate, execute and deliver Debt Financing Documents that reflect the terms contained in the Debt
Commitment Letter (including any "market flex" provisions related thereto) or on such other terms acceptable to Parent and the applicable Financing Sources and (B) negotiate, execute and
deliver the Preferred Equity Financing Documents and the Holdco PIK Financing Documents that reflect the terms contained in the Intermediate Holdco Commitment Letter or on such other terms acceptable
to Intermediate Holdco and the other parties to the Intermediate Holdco Commitment Letter; (v) in the event that the conditions set forth in Section 8.01 and Section 8.02 as to the obligations of Intermediate Holdco, Parent and
Merger Sub and the Financing Conditions have been satisfied or waived or, upon funding would be satisfied, consummate the Financing (including consummation of the transactions required to satisfy
clause (ii) of paragraph 6 of Annex III of the Debt Commitment Letter (as in effect on the date hereof)); and (vi) enforce Parent's or Intermediate Holdco's rights under
each Commitment Letter (including by seeking damages or taking other enforcement actions, including seeking an order of specific performance).
(b) Parent
shall give the Company prompt notice of any actual breach or repudiation, or bona fide threatened in writing
breach or repudiation, by any party to any Commitment Letter of which Parent or its Affiliates becomes aware. Without limiting Intermediate Holdco's, Parent's or Merger Sub's other obligations under
this Section 7.13, if any portion of the Financing becomes, or would reasonably be expected to become, unavailable on the terms and conditions
contemplated in the applicable Commitment Letter (after, in the case of the Debt Commitment Letter, taking into account flex terms), Intermediate Holdco, Parent and Merger Sub shall
(i) promptly notify the Company of such occurrence and the reasons therefor, (ii) use reasonable best efforts to obtain alternative financing in consultation with the Company, from the
original Financing Sources or alternative financing sources (on terms containing conditions precedent to the consummation of such financing that are substantially identical to (and no more expansive
than) the conditions precedent expressly set forth in the applicable Commitment Letter being replaced by such alternative financing as in effect on the date hereof), in an amount sufficient to replace
any unavailable portion of the applicable Financing; provided, however, that in no event shall the
foregoing require Intermediate Holdco, Parent and/or Merger Sub to agree to any terms or conditions materially less favorable (taken as a whole and taking into account any "market flex" provision) to
Intermediate Holdco, Parent and/or Merger Sub (as determined in the reasonable judgment of Intermediate Holdco, Parent and/or Merger Sub), in each case relative to those set forth in the applicable
Commitment Letter being replaced, and, and (iii) if and when available, provide the Company with a true and complete copy of, a new financing commitment that provides for such alternative
financing. Upon any such replacement, amendment, supplement or other modification of, or waiver under, the Debt Commitment Letter or the Intermediate Holdco Commitment Letter in accordance with this Section 7.13(b)
, the term "Debt Commitment Letter" or "Intermediate Holdco Commitment Letter", as applicable thereto (and consequently the terms
"Debt Financing," "Preferred Equity Financing," "Holdco PIK Financing" and "Financing" shall mean the Debt Financing, the Preferred Equity Financing and the Holdco PIK Financing contemplated by such
Commitment Letters as so replaced, amended, supplemented, modified or waived), shall mean such Commitment Letter as so replaced, amended, supplemented, modified or waived. Neither Parent nor any of
its Affiliates shall amend, modify, supplement, restate, assign, substitute or replace any of the Commitment Letters or any definitive documentation in respect of the Financing except (A) for
substitutions and replacements pursuant to the immediately preceding sentence, (B) such amendments, modifications, supplements, restatements, assignments, substitutions or replacements that do
not (1) reduce the aggregate amount of the Financing thereunder (including by changing the amount of fees to be paid or original issue discount thereof), or (2) impose any new or
additional condition, or otherwise amend, modify or expand any condition, to the receipt of any portion of the Financing; provided, that, for the
avoidance of doubt (x) Parent and Merger Sub may amend the Debt Commitment Letter to add lenders, lead arrangers, bookrunners, co-managers, syndication agents or other financing sources who had
not
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executed
the Debt Commitment Letter as of the date hereof and, in connection therewith, amend the economic and other arrangements with respect to the appointment of such existing and additional
entities (including in connection with any Second Lien Giveaway), (y) Intermediate Holdco may amend the Intermediate Holdco Commitment Letter to add investors, other financing sources or other
parties who had not executed the Intermediate Holdco Commitment Letter as of the date hereof and, in connection therewith, amend the economic and other arrangements with respect to the appointment of
such existing and additional entities and (z) Parent shall promptly furnish to Company copies of any such amendments, modifications, supplements, restatements, assignments, substitutions or
replacements to or under the applicable Commitment Letter, and upon the execution and delivery thereof, any Debt
Commitment Letter in respect of any Second Lien Giveaway or Replacement Commitment Facility. Other than as permitted under this Agreement, Parent shall not consent to any assignment of rights or
obligations under any of the Commitment Letters without the prior written approval of the Company, such approval not to be unreasonably withheld, conditioned or delayed. Parent shall consult with and
keep the Company informed in reasonable detail of the status of Parent's efforts to arrange the Financing. Upon the reasonable written request of the Company, Parent will make commercially reasonable
efforts to confirm (a) with the applicable Financing Sources their intent and ability to perform, and the availability of the applicable Financing under, the applicable Commitment Letter,
subject only to satisfaction or waiver of the applicable Financing Conditions, and (b) that none of Parent, the Financing Sources or the Guarantor are aware of any event or condition that would
reasonably be expected to result in the failure of a Financing Condition. Neither Parent nor any of its Affiliates shall take any action that could reasonably be expected to materially delay or
prevent the consummation of the Financing. Parent and Merger Sub expressly acknowledge and agree that their obligations under this Agreement, including their obligations to consummate the Merger, are
not subject to, or conditioned on, Parent's or Merger Sub's receipt of financing.
Section 7.14 Termination of Company Credit Agreement.
(a) At
least one (1) Business Day prior to Closing, the Company shall deliver to Parent an executed Payoff Letter for the Company Credit Agreement, a draft of which
will be provided to Parent by the Company no later than five (5) Business Days prior to the Closing Date, from the agent, lenders and/or creditors for the Company Credit Agreement.
(b) Contemporaneously
with the Closing, Merger Sub shall pay (or cause to be paid) to the lenders under the Company Credit Agreement the amount specified in the Payoff
Letter with respect thereto (including after giving effect to any per diem amount specified therein, to the extent applicable) in cash in immediately available funds to the bank account(s) specified
therein to discharge all obligations of the Acquired Companies outstanding under the Company Credit Agreement and to terminate the commitments thereunder; provided that, with the prior agreement of the
parties, such amounts may be paid (in whole or in part) using cash of the Acquired Companies as of the
Closing.
ARTICLE VIII.
CONDITIONS TO THE TRANSACTION
Section 8.01 Conditions to the Obligations of Each Party. The respective obligations of the Company,
Parent and Merger Sub to consummate the Merger are subject to the satisfaction (or written waiver by all parties, if permissible under Applicable Law) at or prior to the Effective Time of each of the
following conditions:
(a) Required Company Stockholder Approval. The Required Company Stockholder Approval shall have been obtained.
(b) Antitrust Approvals. (i) the waiting period (and any extension thereof) applicable to the consummation of
the Transactions under the HSR Act shall have expired or been terminated and
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(ii) the
clearances, approvals and consents required to be obtained under the Antitrust Laws set forth on Schedule A hereto shall have
been obtained and shall be in full force and effect.
(c) No Legal Prohibition. The consummation of the Merger shall not then be enjoined, prevented, restrained, made
illegal or prohibited by any Applicable Law.
Section 8.02 Conditions to the Obligations of Parent and Merger Sub. The obligations of Parent and Merger
Sub to consummate the Merger are subject to the satisfaction (or waiver by each of Parent and Merger Sub, if permissible under Applicable Law), at or prior to the Closing, of the following further
conditions:
(a) Representations and Warranties.
(i) Each
of the representations and warranties made by the Company in Sections 4.01(a), 4.02, 4.05(a) and
4.20 (collectively, the
"Company Fundamental Representations") shall be true and correct, in all material respects, as of the date hereof and as of the Closing Date as if made
as and on the Closing Date, except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date; and
(ii) Each
of the representations and warranties made by the Company in this Agreement other than the Company Fundamental Representations (without giving effect to any
references to any "Company Material Adverse Effect" or other "materiality" qualifications) shall be true and correct in all respects as of the date hereof and as of the Closing Date as if made as and
on the Closing Date, in each case, (A) except for representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date, and
(B) except where the failure to be so true and correct has not had and would not reasonably be expected to have a Company Material Adverse Effect.
(b) Covenants. Each of the covenants and obligations that the Company is required to comply with or to perform
at or prior to the Closing shall have been complied with and performed in all material respects, except for Section 6.01(a)(xxi) which shall have
been complied with and performed in all respects.
(c) No Company Material Adverse Effect. Since the date of this Agreement, there shall not have occurred any
Company Material Adverse Effect.
(d) Company Closing Certificate. Parent shall have received a certificate executed on behalf of the Company by
its authorized representative (the "Company Closing Certificate") to the effect that the conditions set forth in Sections 8.02(a), 8.02(b) and
8.02(c) have been satisfied.
Section 8.03 Conditions to the Obligations of the Company. The obligations of the Company to consummate
the Merger are subject to the satisfaction (or waiver by the Company, if permissible under Applicable Law), at or prior to the Closing, of the following further conditions:
(a) Representations and Warranties.
(i) Each
of the representations and warranties made by Parent and Merger Sub in Sections 5.01, 5.02, and 5.06
(collectively, the "Parent Fundamental
Representations") shall be true and correct, in all material respects, as of the date hereof and as of the Closing Date as if made as and on the Closing Date, except for
representations and warranties that speak as of a particular date, which shall be true and correct in all respects as of such date; and
(ii) Each
of the representations and warranties made by Parent and Merger Sub in this Agreement other than the Parent Fundamental Representations (without giving effect to
any references to materiality qualifications) shall be true and correct in all respects as of the date hereof and as of the
Closing Date as if made as and on the Closing Date, in each case, (A) except for representations and warranties that speak as of a particular date, which shall be true and
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correct
in all respects as of such date and (B) except where the failure to be so true and correct has not had and would not reasonably be expected to have a material adverse effect on the
ability of Parent and Merger Sub to consummate the Merger.
(b) Covenants. Each of the covenants and obligations that Parent and Merger Sub are required to comply with or
to perform at or prior to the Closing shall have been complied with and performed in all material respects.
(c) Parent Closing Certificate. The Company shall have received a certificate executed on behalf of Parent by
its authorized representative and to the effect that the conditions set forth in Sections 8.03(a) and 8.03(b) have been satisfied (the "Parent Closing Certificate").
Section 8.04 Frustration of Closing Conditions. Neither Parent nor Merger Sub may rely on the failure of
any condition set forth in Section 8.01 or Section 8.02 to be satisfied if such failure
was primarily caused by the failure of Parent or Merger Sub to perform any of its material obligations under this Agreement. The Company may not rely on the failure of any condition set forth in Section 8.01 or Section 8.03 to be satisfied if such failure was primarily caused by its
failure to perform any of its material obligations under this Agreement.
ARTICLE IX.
TERMINATION
Section 9.01 Termination. Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the Effective Time notwithstanding receipt of the Required Company Stockholder Approval
(except as expressly noted), only as follows:
(a) by
mutual written agreement of the Company and Parent;
(b) by
either the Company or Parent, if the Closing shall not have occurred on or before 5:00 p.m. (Eastern time) on June 20, 2021, (the
"End Date"), whether such date is before or after the date of the receipt of Required Company Stockholder Approval; provided, however, that the right to terminate this Agreement pursuant to this Section 9.01(b) may not be exercised by any party whose failure to perform any covenant or
obligation under this Agreement has been the principal
cause of, or resulted in, the failure of the Closing to have occurred on or before the End Date;
(c) by
either the Company or Parent, if any Governmental Authority shall have issued or enacted any Applicable Law permanently enjoining preventing, restraining, making
illegal or otherwise prohibiting prior to the Effective Time, the consummation of the Merger, and, as applicable, such Applicable Law shall have become final and nonappealable; provided, however, that the right to terminate this Agreement pursuant to this Section 9.01(c) may not be exercised by any party whose failure to perform any covenant or
obligation under this Agreement has been the principal
cause of, or resulted in, the issuance of such Governmental Order, decree or ruling;
(d) by
either the Company or Parent, if (i) the Company Stockholder Meeting (including any final adjournments and postponements thereof) shall have been held and
completed in accordance with this Agreement and the Company's stockholders shall have voted on a proposal to adopt this Agreement and (ii) this Agreement shall not have been adopted at such
meeting (and shall not have been adopted at any final adjournment or postponement thereof) by the Required Company Stockholder Approval;
(e) by
Parent, if there is any breach or inaccuracy of, or failure to perform or comply with, any representation, warranty, covenant or agreement on the part of the Company
set forth in this Agreement such that the conditions specified in Section 8.02(a) and Section 8.02(b) (a "Terminating
Company Breach") cannot be satisfied at the Closing and has not
been cured by the date that is the earlier of (i) 45 days after Parent notified the Company of such Terminating Company Breach and
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(ii) three
Business Days prior to the End Date; provided, however, that Parent shall not have the
right to terminate this Agreement pursuant to this Section 9.01(e) if Parent or Merger Sub has breached, there is
an inaccuracy of, or there is a failure to perform or comply with any of Parent's or Merger Sub's representations, warranties, covenants or agreements under this Agreement such that the Company would
have the right to terminate this Agreement pursuant to Section 9.01(f) (notwithstanding any cure periods therein);
(f) by
the Company, if there is any breach or inaccuracy of, or failure to perform or comply with any representation, warranty, covenant or agreement on the part of Parent
or Merger Sub set forth in this Agreement, such that the conditions specified in Section 8.01, Section 8.03(a) and Section 8.03(b) (a "Terminating Parent
Breach") cannot be satisfied at the Closing and has not been cured by the date that is the earlier of (i) 45 days after Parent notified the Company of such
Terminating Company Breach and (ii) three Business Days prior to the End Date; provided, however,
that the Company shall not have the right to terminate this Agreement pursuant to this Section 9.01(f) if the Company has breached, there is an
inaccuracy of, or there is a failure to perform or comply with any of the Company's representations, warranties, covenants or agreements under this Agreement such that Parent would have the right to
terminate this Agreement pursuant to Section 9.01(e) (notwithstanding any cure periods therein);
(g) by
Parent, if, prior to receipt of the Required Company Stockholder Approval, an Adverse Recommendation Change shall have occurred;
(h) by
the Company, at any time prior to the receipt of the Required Company Stockholder Approval, in order to enter into a definitive agreement with respect to a Superior
Proposal; provided, that (i) the Company has complied with the provisions of Section 6.02(d), (ii) the Company pays to Parent the Company
Termination Fee in accordance with Section 9.03 and (iii) concurrently with such termination, the Company enters into such definitive agreement;
(i) by
the Company, if (i) all of the conditions set forth in Section 8.01 and Section 8.02 (other than conditions that are to be satisfied by
actions taken at the Closing, which shall be capable of being satisfied at the
Closing) have been satisfied, (ii) the Company has confirmed that (A) all of the conditions set forth in Section 8.03 have been
satisfied or irrevocably waived (other than conditions that are to be satisfied by actions taken at the Closing, which shall be capable of being satisfied at the Closing), and (B)the Company stands
ready, willing and able take such actions required of it by this Agreement to cause the Closing to occur, and (iii) Parent fails to consummate the Closing within three (3) Business Days
following the date the Closing should have occurred pursuant to Section 2.01.
(j) The
party desiring to terminate this Agreement pursuant to this Section 9.01 (other than pursuant to Section 9.01(a)) shall give a notice of such
termination to the other party setting forth the clauses of this Section 9.01 under which such party is terminating this Agreement.
Section 9.02 Effect of Termination. Except as otherwise set forth in this Section 9.02 and Section 9.03, in the event of the termination of this Agreement pursuant
to Section 9.01, this Agreement shall forthwith become void and have no effect, without any liability on the part of any party hereto or its
respective
Affiliates, officers, directors or stockholders, other than liability of the Company (subject to Section 9.03) for any intentional and willful
breach of this Agreement occurring prior to such termination. The provisions of Sections 7.03, 7.12(d), 9.02, 9.03, Article X and the Confidentiality Agreement, shall survive any termination of this Agreement.
Section 9.03 Expenses; Termination Fee.
(a) Except
as set forth in Section 7.01 and this Section 9.03,
each party hereto shall bear its own expenses incurred in connection with this Agreement and the Transactions whether or not such Transactions shall be consummated, including all fees of its legal
counsel, financial advisers and accountants; provided, however, that in the event that the Transactions
are not consummated, Parent
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shall
pay all fees and expenses in connection with any financing arrangements, regardless of whether such financing fees and expenses were to be incurred by the Company or any of its Subsidiaries; provided,
further, that except as set forth in
Section 3.02(d), Parent shall bear and timely pay all Transfer Taxes and shall prepare and timely file, at its expense, all Tax Returns and other
documentation with respect to such Transfer Taxes.
(b) Company Termination Fee. If, but only if, this Agreement is terminated:
(i) (A)
by Parent or the Company pursuant to Section 9.01(b) or Section 9.01(d) or by Parent pursuant to Section 9.01(e)
, (B) an Acquisition
Proposal has been made to the Company after the date hereof and has not been withdrawn prior to such termination, (C) such Acquisition Proposal was publicly disclosed otherwise made known to
the stockholders of the Company prior to such termination and (D) within twelve (12) months following the termination of this Agreement, (1) the Company enters into a definitive
agreement for the consummation of any Acquisition Proposal (regardless of when made or the counterparty thereto) or (2) any Acquisition Proposal is consummated (regardless of whether when made
or the counterparty thereto), then the Company shall pay, or cause to be paid, to Parent the Company Termination Fee, in each case, within three (3) Business Days after the date on which the
Company enters into such definitive agreement or the date on which such Acquisition Proposal is consummated (provided, however, that for purposes of this
Section 9.03(b)(i), the references to "twenty percent (20%)"
in the definition of Acquisition Proposal shall be deemed to be references to "fifty percent (50%)");
(ii) by
Parent pursuant to Section 9.01(g), then the Company shall pay, or cause to be paid, to Parent the Company
Termination Fee, in each case, within three (3) Business Days following such termination; or
(iii) by
the Company pursuant to Section 9.01(h), then the Company shall pay, or cause to be paid, to Parent the
Company Termination Fee within three (3) Business Days following such termination.
(c) Notwithstanding
anything to the contrary in this Agreement, but subject to Section 10.02, Parent's right
(i) to terminate this Agreement pursuant to Section 9.01 and (ii) to receive from the Company the Company Termination Fee (if
payable) shall, in circumstances in which the Company Termination Fee is owed, constitute the sole and exclusive remedy of Parent and Merger Sub against (i) the Company and (ii) any of
the Company's former, current and future Affiliates, assignees, stockholders, controlling Persons, directors, officers, employees, agents, attorneys and other Representatives (the Persons described in
clauses (i) and (ii), collectively, the "Company Parties") for any breach, loss or damage suffered as a result of or relating to or arising out
of the failure of the Transactions to be consummated or for a breach or failure to perform hereunder or otherwise, and upon payment of the Company Termination Fee and such other amounts, if any,
referenced in Section 9.03(g), no Person shall have any rights or claims against the Company Parties under this Agreement or otherwise, whether
at law or equity, in contract in tort or otherwise, and the Company Parties shall not have any other liability relating to or arising out of this Agreement or the Transactions. Nothing in this Section 9.03(c)
shall in any way expand or be deemed or construed to expand the circumstances in which the Company or any other Company Party may
be liable under this Agreement or the Transaction (including the Debt Financing). For the avoidance of doubt, while Parent or Merger Sub may pursue both a grant of specific performance of the type
contemplated by Section 10.02 and the payment of the Company Termination Fee pursuant to Section 9.03(b), as the case may be, under no
circumstances shall Parent or Merger Sub be permitted or entitled to receive both a grant of
specific performance of the type contemplated by Section 10.02 and monetary damages, including all or any portion of the Company Termination Fee.
(d) Parent Termination Fee. If, but only if, this Agreement is terminated by the Company pursuant to Section 9.01(f) or
Section 9.01(i), or is otherwise terminated with terminable pursuant to
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Section 9.01(f) or Section 9.01(i), then Parent shall pay, or cause to be paid, to the Company within five
(5) Business Days following such termination (i) the Parent Termination Fee and (ii) an amount equal to the amount required to reimburse the Company for all actual and documented
out-of-pocket costs, fees and expenses incurred in connection with this Agreement and the Transactions in an amount not to exceed (inclusive of any amounts payable pursuant to Section 7.12)
$10,000,000 (the "Company Reimbursable Expenses").
(e) Notwithstanding
anything to the contrary in this Agreement (other than Section 7.12(d)), but subject to Section 10.02, the Company's right (i) to terminate
this Agreement pursuant to Section 9.01 and (ii) to receive from Parent (A) the Parent Termination Fee (if payable), (B) any amounts payable pursuant
to Section 7.12(d) and Section 9.03(g), and (C) the Company Reimbursable Expenses,
shall constitute the sole and exclusive remedies of the Company against the Parent Parties, in each case, for any breach, loss or damage suffered as a result of or relating to or arising out of this
Agreement, the Commitment Letters, the other documents related to the failure of the Transactions and the transactions contemplated hereby or thereby, including such termination, any breach of this
Agreement by any Parent Party, the termination of this Agreement or the failure to consummate the Transactions, and upon such termination and the payment of the Parent Termination Fee (if payable) and
such other amounts, if any, referenced in Section 9.03(g), no Person shall have any rights or claims against the Parent Parties under this
Agreement, the Commitment Letters, the other documents related to the Transactions or otherwise, whether at law or equity, in contract in tort or otherwise, and the Parent Parties shall not have any
other liability relating to or arising out of this Agreement, the Commitment Letters, the other documents related to the Transactions or the Transaction, except with respect to the Parent's
obligations set forth in Section 7.12(d). Nothing in this Section 9.03(e) shall in any way
expand or be deemed or construed to expand the circumstances in which Parent or any other Parent Party may be liable under this Agreement or the Transaction. For the avoidance of doubt, while the
Company may pursue both a grant of specific performance of the type contemplated by Section 10.02 to effect the Closing and the payment of the
Parent Termination Fee pursuant to Section 9.03(d), as the case may be, under no circumstances shall the Company be permitted or entitled to
receive both a grant of specific performance of the type contemplated by Section 10.02 to effect the Closing and payment of the Parent
Termination Fee.
(f) Each
of the Company, Parent and Merger Sub acknowledge and agree that the agreements contained in Sections 9.02
and 9.03 are an integral part of the Transactions, and that, without these agreements, neither Parent nor Merger Sub nor the Company would enter into
this Agreement. The Company, Parent and Merger Sub acknowledge and agree that neither the Company Termination Fee nor the Parent Termination Fee is a penalty, but rather is liquidated damages in a
reasonable amount that will compensate Parent and Merger Sub, on the one hand, and the Company, on the other hand, in the circumstances in which such fee is payable for the efforts and resources
expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger. The parties hereto acknowledge and
hereby agree that in no event shall (i) the Company be required to pay the Company Termination Fee on more than one occasion or (ii) Parent be required to pay the Parent Termination Fee
on more than one occasion.
(g) Any
amounts payable pursuant to Section 9.03(b), Section 9.03(d) or this Section 9.03(g) shall be
paid by wire transfer of same day funds
in accordance with this Section 9.03 to an account designated by Parent or the Company, as applicable (at least two (2) Business Days
prior to the date such fee is to be paid). If the Company or Parent, as applicable, fails to pay when due any amount payable under Section 9.03(b) or Section 9.03(d)
, as applicable, and in order to collect such amount,
Parent or the Company, as applicable, commences a suit that results in a judgment against the Company for the Company Termination Fee or Parent for the Parent Termination Fee, as applicable, then such
party shall reimburse the other for all reasonable, documented out-of-pocket costs and expenses (including fees and disbursements of counsel) incurred in connection with such suit.
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ARTICLE X.
MISCELLANEOUS
Section 10.01 Notices. All notices and other
communications among the parties shall be in writing and shall be deemed to have been duly given (a) when delivered in person, (b) when delivered after posting in the U.S. mail having
been sent registered or certified mail return receipt requested, postage prepaid, (c) when delivered by nationally recognized overnight delivery service or (d) when delivered by
facsimile or email, addressed as follows:
if
to Intermediate Holdco, Parent or Merger Sub, to:
c/o
Veritas Capital Fund Management, L.L.C.
9 West 57th Street, 32nd Floor
New York, New York 10019
Attention: Jamie Dimitri
Email: jdimitri@veritascapital.com
with
a copy to (which shall not constitute notice):
if
to the Company, to:
with
a copy to (which shall not constitute notice):
or
to such other address, electronic mail address or facsimile number for a party as shall be specified in a notice given in accordance with this Section 10.01.
Section 10.02 Remedies Cumulative; Specific
Performance. The parties hereto agree that irreparable damage would occur, and that the parties would not have any adequate remedy at law, in the event that any of
the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached (including failing to take such actions as are required of it hereunder to
consummate the Transactions). It is accordingly agreed that the parties shall be entitled to seek to obtain an injunction or injunctions, specific performance and other equitable relief to prevent
breaches of this Agreement and to specifically enforce the terms and provisions of this Agreement, without proof of actual damages or otherwise, in addition to any other remedy to which any party is
entitled at law or in equity. Each party agrees that it will not oppose the granting of an injunction, specific performance
and other equitable relief on the basis that any other party has an adequate remedy at law or that any award of specific performance is not an appropriate remedy for any reason at law or in equity.
Any party seeking an injunction or injunctions to prevent breaches of this
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Agreement
and to enforce specifically the terms and provisions of this Agreement shall not be required to provide any bond or other security in connection with any such order or injunction. The
parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to law or inequitable for any reason, nor to assert that a remedy of monetary damages
would provide an adequate remedy. Notwithstanding the foregoing, it is explicitly agreed that the right of the parties to seek an injunction, specific performance or other equitable remedies in
connection with the Company's enforcing Parent's and Merger Sub's obligations to effect the Closing shall be subject to the following requirements: (a) all conditions in Sections 8.01 and
8.02 have been satisfied or waived (other than conditions that are to be
satisfied by actions taken at the Closing, which shall be capable of being satisfied at the Closing) at the time when the Closing would have been required to occur, (b) the Financing has been
funded or will be funded at the Closing, (c) the Company has confirmed that (i) all of the conditions set forth in Section 8.03
have been satisfied or irrevocably waived (other than conditions that are to be satisfied by actions taken at the Closing, which shall be capable of being satisfied at the Closing), and (ii) if
the Financing is funded, then the Company would take such actions required of it by this Agreement to cause the Closing to occur and (d) Parent and Merger Sub have failed to consummate the
Closing prior to the second Business Day following the delivery of such confirmation.
Section 10.03 No Survival of Representations and
Warranties. The representations and warranties and covenants and agreements in this Agreement and in any certificate or other writing delivered pursuant hereto by
any Person shall terminate at the Effective Time other than those covenants or agreements of the parties which by their terms contemplate performance after the Effective Time or after termination of
this Agreement.
Section 10.04 Amendments and Waivers.
(a) Any
provision of this Agreement may be amended or waived prior to the Effective Time if, but only if, such amendment or waiver is in writing and is signed, in the case
of an amendment, by each party to this Agreement or, in the case of a waiver, by each party against whom the waiver is to be effective; provided, however,
that no amendment or waiver shall be made subsequent to receipt of the Required Company Stockholder Approval that requires further approval of
the stockholders of the Company pursuant to the DGCL without such further stockholder approval. Notwithstanding anything to the contrary contained herein, the Lender Protective Provisions contained in
this Agreement may not be amended, waived or otherwise modified in any manner that adversely affects any Financing or any Financing Related Person without the prior written consent of the Financing
Sources.
(b) No
failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No party shall be deemed to have waived any claim arising out of this Agreement, or any right,
power or privilege hereunder, unless the waiver of such right, power or privilege is expressly set forth in a written instrument duly executed and delivered on behalf of such party, and any such
waiver shall not be applicable or have any effect except in the specific instance in which it is given. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by Applicable Law.
Section 10.05 Disclosure Letter References. The parties
hereto agree that any reference in a particular Section of the Company Disclosure Letter, as the case may be, shall only be deemed to be an exception to (or, as applicable, a disclosure for purposes
of) (a) the representations and warranties (or covenants, as applicable) of the relevant party that are contained in the corresponding Section of this Agreement and (b) any other
representations and warranties (or covenant, as applicable) of such party that are contained in this Agreement, but only if the relevance of that reference as an exception to (or a disclosure for
purposes of) such representations and warranties (or covenant, as applicable) is reasonably apparent on the face of such disclosure. The listing of any matter on a party's Disclosure
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Letter
shall not be deemed to constitute an admission by such party, or to otherwise imply, that any such matter is material, is required to be disclosed by such party under this Agreement or falls
within relevant minimum thresholds or materiality standards set forth in this Agreement. No disclosure in a party's Disclosure Letter relating to any possible breach or violation by such party of any
Contract or Applicable Law shall be construed as an admission or indication that any such breach or violation exists or has actually occurred. In no event shall the listing of any matter in a party's
Disclosure Letter be deemed or interpreted to expand the scope of such party's representations, warranties and/or covenants set forth in this Agreement.
Section 10.06 Binding Effect; Benefit; Assignment.
(a) This
Agreement shall be binding upon, inure solely to the benefit of and be enforceable by each party hereto and their respective permitted successors and assigns.
Nothing in this Agreement, express or implied is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement; provided,
however, that, notwithstanding the foregoing, (i) 7.04 Indemnitees (and their
successors, heirs and representatives) are intended third-party beneficiaries of, and may enforce, Section 7.04, (ii) from and after the
Effective Time, the holders of shares of Company Common Stock and holders of Company Compensatory Awards shall be intended third party beneficiaries of, and may enforce, Articles II and
III, and (iii) the Financing Related Persons shall be intended third-party
beneficiaries of, and may enforce, the Lender Protective Provisions.
(b) Neither
this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto by operation of Law or otherwise without
the prior written consent of the other parties. Any purported assignment in violation of this Section 10.06(b) shall be null and void.
Notwithstanding the foregoing, this Agreement (and all rights, interests and obligations hereunder) may be assigned, in whole or in part, without consent by each of Parent or Merger Sub (i) to
any of its Affiliates or (ii) for collateral security purposes to any Persons providing financing to thereto pursuant to the terms thereof (including for purposes of creating a security
interest herein or otherwise assigning as collateral in respect of such financing); provided that no such assignment shall affect or relieve Parent or
Merger Sub of their obligations under this Agreement.
Section 10.07 Governing Law. This Agreement and all
Proceedings (whether based on contract, tort or otherwise) arising out of, or related to this Agreement, the Transactions, or the actions of Parent, Merger Sub or the Company in the negotiation,
administration, performance and enforcement thereof, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict
of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. Notwithstanding the foregoing, each party hereto agrees that any Proceeding of
any kind or description, whether in law or in equity, in contract, tort or otherwise, against the Financing Related Persons in any way relating to this Agreement or any of the Transactions, including
any dispute arising out of or relating in any way to the Commitment Letters, shall be governed by, and construed in accordance with, the Laws of the State of New York, without giving effect to any
conflict of laws provision thereof that would cause the application of the Laws of another jurisdiction.
Section 10.08 Jurisdiction. Each of the parties hereto
hereby expressly, irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court shall not have
jurisdiction, any Federal court of the United States of
America sitting in Delaware, and any appellate court from any appeal thereof, in any Proceeding arising out of or relating to this Agreement or the agreements delivered in connection herewith or the
Transactions contemplated hereby or thereby or for recognition or enforcement of any judgment relating thereto, and each of the parties hereby irrevocably and unconditionally (a) agrees not to
commence any such Proceeding except in such courts, (b) agrees that any claim in respect of any
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such
Proceeding may be heard and determined in the Court of Chancery of the State of Delaware or, to the extent permitted by Applicable Law, in such Federal court, (c) waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any such Proceeding in the Court of Chancery of the State of Delaware or such
Federal court and (d) waives, to the fullest extent permitted by Applicable Law, the defense of an inconvenient forum to the maintenance of such Proceeding in the Court of Chancery of the State
of Delaware or such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by Law. Each party to this Agreement irrevocably consents to service of process outside the territorial jurisdiction of the courts referred to in this Section 10.08 in any such Proceeding by mailing copies thereof by registered or certified U.S. mail, postage prepaid, return receipt requested,
to its address as specified in or pursuant to Section 10.01. However, nothing in this Agreement will affect the right of any party to this
Agreement to serve process on the other party in any other manner permitted by law. Notwithstanding anything herein to the contrary, each of the parties hereto agrees (i) that any Proceeding of
any kind or nature, whether at law or in equity, in contract, tort or otherwise, against a Financing Related Person in connection with this Agreement, the Financing or the Transactions, shall be
subject to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New York, New York and any appellate court thereof and each party hereto submits for itself and
its property with respect to any such Proceeding to the exclusive jurisdiction of such courts, (ii) not to bring or permit any of its Affiliates or Representatives to bring or support anyone
else in bringing any such action or proceeding in any other courts, (iii) that a final judgment in any such Proceeding shall be conclusive and may be enforced in other jurisdictions by suit on
the judgment or in any other manner provided by Law, and (iv) to waive and hereby irrevocably waives, to the fullest extent permitted by Law, any objection which it may now or hereafter have to
the laying of venue of, and the defense of an inconvenient forum to the maintenance of, any such Proceeding in any such court.
Section 10.09 Waiver of Jury Trial. EACH PARTY
ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND ANY OF THE AGREEMENTS DELIVERED IN CONNECTION HEREWITH OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (INCLUDING THE FINANCING). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING, SEEK TO ENFORCE EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS
CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 10.09.
Section 10.10 Counterparts; Effectiveness. This Agreement
may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become
effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto. Until and unless each party has received a counterpart hereof signed by the other
parties hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). The
exchange of a fully executed Agreement (in counterparts or otherwise) by electronic transmission in .PDF format or by facsimile shall be sufficient to bind the parties to the terms and conditions of
this Agreement.
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Section 10.11 Entire Agreement. This Agreement, the
Confidentiality Agreement and each of the documents, instruments and agreements delivered in connection with the Transactions, including each of the Exhibits, and the Company Disclosure Letter,
constitute the entire agreement of the parties and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof
and, except as otherwise expressly provided herein, are not intended to confer upon any other Person any rights or remedies hereunder.
Section 10.12 Severability. If any term or other
provision of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, illegal or incapable of being enforced by any rule of law or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner to the end that the Transactions are consummated as originally contemplated to the
fullest extent possible.
Section 10.13 Non-Recourse. Without limiting the rights
of the Company under and to the extent provided under Section 10.02, this Agreement may only be enforced against, and any Proceeding based upon,
arising out of, or related to this Agreement or the Transactions may only be brought against, the entities that are expressly named as parties hereto (and the Guarantors in accordance with the
Guaranty and any other Person named a party to any other agreement entered into in connection with the Transactions) and then only with respect to the specific obligations set forth herein (or
therein), with respect to such party. Except to the extent a named party to this Agreement (and the Guarantors in accordance with the Guaranty and any other Person named a party to any other agreement
entered into in connection with the Transactions) (and then only to the extent of the specific obligations undertaken by such named party herein or therein, and not otherwise), no past, present or
future director, officer, employee, incorporator, member, partner, stockholder, Financing Related Person, Affiliate, agent, attorney, advisor or representative or Affiliate of any of the foregoing
shall have any liability (whether in contract, tort, equity or otherwise) for any one or more of the representations, warranties, covenants, agreements or other obligations or liabilities of any one
or more of Company, Parent, Merger Sub or Intermediate Holdco under this Agreement (whether for indemnification or otherwise) or of or for any Proceeding based on, arising out of, or related to this
Agreement or the Transactions; provided, however, that, notwithstanding the foregoing, nothing in this Section 10.13 shall in any way limit or modify the rights and obligations of Parent under this Agreement or any Financing Related Person's
obligations to Parent or Intermediate Holdco under the Commitment Letters.
[Signature Page Follows]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the date first written above.
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GAINWELL ACQUISITION CORP.
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By:
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/s/ PAUL SALEH
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Name:
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Paul Saleh
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Title:
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President and CEO
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GAINWELL INTERMEDIATE HOLDING CORP.
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By:
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/s/ PAUL SALEH
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Name:
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Paul Saleh
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Title:
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President and CEO
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MUSTANG MERGERCO INC.
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By:
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/s/ PAUL SALEH
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Name:
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Paul Saleh
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Title:
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President and CEO
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[Signature Page to Agreement and Plan of Merger]
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HMS HOLDINGS CORP.
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By:
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/s/ WILLIAM C. LUCIA
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Name:
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William C. Lucia
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Title:
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Chairman, President and CEO
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[Signature Page to Agreement and Plan of Merger]
Table of Contents
Appendix B
(a) Any
stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with
respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has
neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of
the fair value of the stockholder's shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word "stockholder" means a
holder of record of stock in a corporation; the words "stock" and "share" mean and include what is ordinarily meant by those words; and the words "depository receipt" mean a receipt or other
instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal
rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to
§ 251 (other than a merger effected pursuant to § 251(g) of this title), § 252, § 254, § 255,
§ 256, § 257, § 258, § 263 or § 264 of this title:
(1) Provided,
however, that no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in
respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act upon the agreement of merger or consolidation (or, in the case
of a merger pursuant to § 251(h), as of immediately prior to the execution of the agreement of merger), were either: (i) listed on a national securities exchange or
(ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the
merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of this title.
(2) Notwithstanding
paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of any class or series of stock of a
constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263
and 264 of this title to accept for such stock anything except:
a. Shares
of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof;
b. Shares
of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository
receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000 holders;
c. Cash
in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or
d. Any
combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing
paragraphs (b)(2)a., b. and c. of this section.
(3) In
the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 253 or § 267 of this title is
not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
(4) [Repealed.]
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Table of Contents
(c) Any
corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its
stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the
assets of the corporation. If the certificate of incorporation contains such a provision, the provisions of this section, including those set forth in subsections (d),(e), and (g) of
this section, shall apply as nearly as is practicable.
(d) Appraisal
rights shall be perfected as follows:
(1) If
a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the
corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in
accordance with § 255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that
appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a
nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the appraisal of such stockholder's shares shall deliver to the corporation, before the
taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder's shares; provided that a demand may be delivered to the corporation by electronic transmission if
directed to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity of
the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder's shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A
stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or
resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of
the date that the merger or consolidation has become effective; or
(2) If
the merger or consolidation was approved pursuant to § 228, § 251(h), § 253, or § 267 of
this title, then either a constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each
of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal
rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section and, if 1 of the constituent
corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also
notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of giving such notice or, in the
case of a merger approved pursuant to § 251(h) of this title, within the later of the consummation of the offer contemplated by § 251(h) of this title and
20 days after the date of giving such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder's shares; provided that a demand may be delivered to the
corporation by electronic transmission if directed to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably
informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder's shares. If such notice did not notify stockholders of the
effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of
the holders of any class or series of stock of such constituent corporation that are
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Table of Contents
entitled
to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within
10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved
pursuant to § 251(h) of this title, later than the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days following the
sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder's shares in accordance with this
subsection. An affidavit of the secretary or assistant secretary or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the
absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders entitled to receive either notice, each constituent corporation may fix, in advance,
a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective date of the merger or consolidation, the
record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the
day on which the notice is given.
(e) Within
120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with
subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery
demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation,
any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder's demand for appraisal and to accept the
terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of
subsections (a) and (d) of this section hereof, upon request given in writing (or by electronic transmission directed to an information processing system (if any) expressly designated
for that purpose in the notice of appraisal), shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number
of shares not voted in favor of the merger or consolidation (or, in the case of a merger approved pursuant to § 251(h) of this title, the aggregate number of shares (other than any
excluded stock (as defined in § 251(h)(6)d. of this title)) that were the subject of, and were not tendered into, and accepted for purchase or exchange in, the offer referred to in
§ 251(h)(2)), and, in either case, with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such statement shall be given
to the stockholder within 10 days after such stockholder's request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the
period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the
beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person's own name, file a petition or request from the corporation
the statement described in this subsection.
(f) Upon
the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within
20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have
demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the
surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed
for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall
also be given by 1 or more publications at least 1 week before the day of the
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hearing,
in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall
be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g) At
the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The
Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for
notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately
before the merger or consolidation the shares of the class or series of stock of the constituent corporation as to which appraisal rights are available were listed on a national securities exchange,
the Court shall dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless (1) the total number of shares entitled to appraisal exceeds 1% of
the outstanding shares of the class or series eligible for appraisal, (2) the value of the consideration provided in the merger or consolidation for such total number of shares exceeds
$1 million, or (3) the merger was approved pursuant to § 253 or § 267 of this title.
(h) After
the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery,
including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the
accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court
shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, and except as provided in this subsection, interest from the effective date
of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time
to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the surviving corporation may
pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the
amount so paid and the fair value of the shares as determined by the Court, and (2) interest theretofore accrued, unless paid at that time. Upon application by the surviving or resulting
corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the
stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has
submitted such stockholder's certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is
not entitled to appraisal rights under this section.
(i) The
Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders
entitled thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the
surrender to the corporation of the certificates representing such stock. The Court's decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or
resulting corporation be a corporation of this State or of any state.
(j) The
costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a
stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal
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proceeding,
including, without limitation, reasonable attorney's fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.
(k) From
and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section
shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record
at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e)
of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder's demand for an appraisal and an acceptance of the merger or
consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the
corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder
without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder who
has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder's demand for appraisal and to accept the terms offered upon the merger or
consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section.
(l) The
shares of the surviving or resulting corporation to which the shares of such objecting stockholders would have been converted had they assented to the merger or
consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.
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Appendix C
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745 Seventh Avenue
New York, NY 10019
United States
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CONFIDENTIAL
December 20,
2020
Board
of Directors
HMS Holdings Corp.
5615 High Point Drive
Irving, TX 75038
Members
of the Board of Directors:
We
understand that HMS Holdings Corp. (the "Company") intends to enter into a transaction (the "Proposed Transaction") with Gainwell Acquisition Corp. ("Parent") and Mustang
MergerCo Inc., a wholly owned subsidiary of Parent ("Merger Sub"), pursuant to which, among other things, (i) Merger Sub will merge with and into the Company, with the Company continuing
as the surviving corporation and a wholly-owned subsidiary of Parent (the "Merger") and (ii) each share of common stock, par value $0.01 per share, of the Company issued and outstanding
immediately prior to the effective time of the Merger, other than any Cancelled Shares or Dissenting Shares (each as defined in the Agreement (as defined below) and, together, "Excluded Shares"), will
be cancelled and extinguished and automatically converted into and will thereafter represent the right to receive an amount in cash equal to $37.00 per share, without interest thereon (the
"Consideration"). The terms and conditions of the Proposed Transaction are set forth in more detail in the Agreement and Plan of Merger, dated December 20, 2020, by and among Parent, Merger Sub
and the Company (the "Agreement"). The summary of the Proposed Transaction set forth above is qualified in its entirety by the terms of the Agreement.
We
have been requested by the Board of Directors of the Company to render our opinion with respect to the fairness, from a financial point of view, to the Company's stockholders (other
than holders of Excluded Shares) of the Consideration to be offered to such stockholders in the Proposed Transaction. We have not been requested to opine as to, and our opinion does not in any manner
address, the Company's underlying business decision to proceed with or effect the Proposed Transaction or the likelihood of consummation of the Proposed Transaction. In addition, we express no opinion
on, and our opinion does not in any manner address, the fairness of the amount or the nature of any compensation to any officers, directors or employees of any parties to the Proposed Transaction, or
any class of such persons, relative to the consideration to be offered to the stockholders of the Company in the Proposed Transaction. Our opinion does not address the relative merits of the Proposed
Transaction as compared to any other transaction or business strategy in which the Company might engage.
In
arriving at our opinion, we reviewed and analyzed: (1) the Agreement and the specific terms of the Proposed Transaction; (2) publicly available information concerning
the Company that we believe to be relevant to our analysis, including its Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Quarterly Reports on Form 10-Q
for the fiscal quarters ended March 31, 2020, June 30, 2020 and September 30, 2020; (3) financial and operating information with respect to the business, operations and
prospects of the Company furnished to us by the Company, including financial projections of the Company prepared by management of the Company (the "Company Projections");
RestrictedExternal
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(4) a
trading history of the Company's common stock from December 18, 2017 to December 18, 2020; (5) a comparison of the historical financial results and present financial
condition of the Company with those of other companies that we deemed relevant; (6) a comparison of the financial terms of the Proposed Transaction with the financial terms of certain other
recent transactions that we deemed relevant; (7) the results of our efforts to solicit indications of interest from third parties with respect to a sale of the Company; and (8) published
estimates of independent research analysts with respect to the future financial performance and price targets of the Company. In addition, we have had discussions with the management of the Company
concerning its business, operations, assets, liabilities, financial condition and prospects and have undertaken such other studies, analyses and investigations as we deemed appropriate.
In
arriving at our opinion, we have assumed and relied upon the accuracy and completeness of the financial and other information used by us without any independent verification of such
information (and have not assumed responsibility or liability for any independent verification of such information) and have further relied upon the assurances of the management of the Company that
they are not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Company Projections, upon the advice of the Company, we have assumed
that such projections have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future financial performance
of the Company and that the Company will perform substantially in accordance with such projections . We assume no responsibility for and we express no view as to any such projections or estimates or
the assumptions on which they are based. In arriving at our opinion, we have not conducted a physical inspection of the properties and facilities of the Company and have not made or obtained any
evaluations or appraisals of the assets or liabilities of the Company. Our opinion necessarily is based upon market, economic and other conditions as they exist on, and can be evaluated as of, the
date of this letter. We assume no responsibility for updating or revising our opinion based on events or circumstances that may occur after the date of this letter.
We
have assumed the accuracy of the representations and warranties contained in the Agreement and all agreements related thereto. We have also assumed, upon the advice of the Company,
that all material governmental, regulatory and third party approvals, consents and releases for the Proposed Transaction will be obtained within the constraints contemplated by the Agreement and that
the Proposed Transaction will be consummated in accordance with the terms of the Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. We do not
express any opinion as to any tax or other consequences that might result from the Proposed Transaction, nor does our opinion address any legal, tax, regulatory or accounting matters, as to which we
understand that the Company has obtained such advice as it deemed necessary from qualified professionals.
Based
upon and subject to the foregoing, we are of the opinion as of the date hereof that, from a financial point of view, the Consideration to be offered to the stockholders of the
Company (other than holders of Excluded Shares) in the Proposed Transaction is fair to such stockholders.
We
have acted as financial advisor to the Company in connection with the Proposed Transaction and will receive fees for our services, a portion of which is payable upon rendering this
opinion and a substantial portion of which is contingent upon the consummation of the Proposed Transaction. In addition, the Company has agreed to reimburse our expenses and indemnify us for certain
liabilities that may arise out of our engagement. We have performed various investment banking services for the Company and Parent in the past, and expect to perform such services in the future, and
have received, and expect to receive, customary fees for such services. Specifically, in the past two years, we have not performed any investment banking and financial services for the Company and
Parent for which we have received any fees.
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In
addition, we and our affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to Veritas Capital Fund Management,
L.L.C. ("Veritas"), and certain of its affiliates and portfolio companies and have received or in the future may receive customary fees for rendering such services, including (i) having acted
or acting as financial advisor to Veritas and certain of its portfolio companies and affiliates in connection with certain mergers and acquisition transactions; (ii) having acted or acting as
arranger, bookrunner and/or lender for Veritas and certain of its portfolio companies and affiliates in connection with the financing for various acquisition transactions; and (iii) having
acted or acting as underwriter, initial purchaser and placement agent for various equity and debt offerings undertaking by Veritas and certain of its portfolio companies and affiliates.
Barclays
Capital Inc., its subsidiaries and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other
financial and non-financial services. In the ordinary course of our business, we and our affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any
derivatives thereof) and financial instruments (including loans and other obligations) of the Company and Parent for our own account and for the accounts of our customers and, accordingly, may at any
time hold long or short positions and investments in such securities and financial instruments.
This
opinion, the issuance of which has been approved by our Fairness Opinion Committee, is for the use and benefit of the Board of Directors of the Company and is rendered to the Board
of Directors in connection with its consideration of the Proposed Transaction. This opinion is not intended to be and does not constitute a recommendation to any stockholder of the Company as to how
such stockholder should vote with respect to the Proposed Transaction.
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Very truly yours,
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BARCLAYS CAPITAL INC.
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VOTE BY INTERNET Before The Meeting - Go to www.proxyvote.com Use the Internet to transmit your voting instructions and for electronic delivery of information up until 11:59 P.M. Eastern Time on the day before the meeting date. Have your proxy card in hand when you access the website and follow the instructions to obtain your records and to create an electronic voting instruction form. HMS HOLDINGS CORP. C/O BROADRIDGE P.O. BOX 1342 BRENTWOOD, NY 11717 During The Meeting - Go to www.virtualshareholdermeeting.com/HMSY2021SM You may attend the meeting via the Internet and vote during the meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions. VOTE BY PHONE - 1-800-690-6903 Use any touch-tone telephone to transmit your voting instructions up until 11:59 P.M. Eastern Time on the day before the meeting date. Have your proxy card in hand when you call and then follow the instructions. VOTE BY MAIL Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes Way, Edgewood, NY 11717. TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS: D30692-S16813 KEEP THIS PORTION FOR YOUR RECORDS DETACH AND RETURN THIS PORTION ONLY THIS PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED. HMS HOLDINGS CORP. The Board of Directors recommends you vote FOR the following proposals: For Against Abstain ! ! ! 1. To adopt the Agreement and Plan of Merger (as it may be amended from time to time, the Merger Agreement), dated as of December 20, 2020, by and among HMS Holdings Corp., a Delaware corporation (HMS), Gainwell Acquisition Corp., a Delaware corporation (Gainwell), Mustang MergerCo Inc., a Delaware corporation and wholly owned subsidiary of Gainwell (Merger Sub), and Gainwell Intermediate Holding Corp., a Delaware corporation, and approve the transactions contemplated thereby, including the merger of Merger Sub with and into HMS (the Merger), with HMS continuing as the surviving corporation and a wholly owned subsidiary of Gainwell (the Merger Proposal); ! ! ! ! ! ! 2. To approve, on an advisory non-binding basis, the compensation that may be paid or become payable to HMSs named executive officers in connection with the Merger; and To approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, including to solicit additional proxies if there are insufficient votes to approve the Merger Proposal at the time of the Special Meeting. 3. NOTE: Such other business as may properly come before the meeting or any adjournment or postponement thereof. Please sign exactly as your name(s) appear(s) hereon. When signing as attorney, executor, administrator, or other fiduciary, please give full title as such. Joint owners should each sign personally. All holders must sign. If a corporation or partnership, please sign in full corporate or partnership name by authorized officer. Signature [PLEASE SIGN WITHIN BOX] Date Signature (Joint Owners) Date
Important Notice Regarding the Availability of Proxy Materials for the Special Meeting to be held on [ ], 2021: The Notice and Proxy Statement is available at www.proxyvote.com. D30693-S16813 HMS HOLDINGS CORP. Special Meeting of Stockholders [ ], 2021 This proxy is solicited by the Board of Directors. The stockholder(s) whose signature(s) appear(s) on the reverse side hereby appoint(s) Meredith W. Bjorck and Jeffrey S. Sherman, or either of them, as proxies, each with the power to appoint his or her substitute, and hereby authorize(s) them to represent and to vote, as designated on the reverse side of this ballot, all of the shares of common stock of HMS HOLDINGS CORP. that the stockholder(s) whose signature(s) appear(s) on the reverse side is/are entitled to vote at the Special Meeting of Stockholders to be held at [ ] A.M., Central Time on [ ], 2021, at www.virtualshareholdermeeting.com/HMSY2021SM, and any adjournment or postponement thereof. This proxy revokes all prior proxies given by the stockholder(s) whose signature(s) appear(s) on the reverse side. THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED AS DIRECTED OR, IF NO DIRECTION IS GIVEN, WILL BE VOTED AS RECOMMENDED BY THE BOARD OF DIRECTORS: FOR PROPOSALS 1, 2 AND 3. IN THEIR DISCRETION, THE PROXIES ARE ALSO AUTHORIZED TO VOTE UPON SUCH OTHER MATTERS AS MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT OR POSTPONEMENT THEREOF. Continued and to be signed on reverse side