warranties in the Merger Agreement (as the same evolved over time) and to prepare the Company Disclosure Letter that supplemented the Companys representations and warranties.
On July 15, 2021, at the suggestion of Harter Secrest, the Special Committee authorized the hiring of Morris, Nichols, Arsht &
Tunnell LLP (Morris Nichols) to assist with Delaware law considerations in connection the proposed sale of the Company. Harter Secrest provided Morris Nichols with the draft Merger Agreement and additional relevant information.
Early on July 19, 2021, Harter Secrest provided the Special Committee and B. Riley with a detailed issues list based on its review of the
Merger Agreement and input from McDermott on the antitrust provisions, which list included various recommendations related to, among others, the provisions related to the tender offer period, the representations and warranties, operating covenants,
antitrust provisions, the go-shop/no-shop provisions, financing provisions, the termination rights and the size of the proposed termination fee and reverse termination
fee. Harter Secrest also informed the Special Committee that it was in regular contact with Company management to assist with review of the representations and warranties, operating covenants, disclosure schedule production and related items in the
Merger Agreement on which it needed managements input.
During the afternoon on July 19, 2021, the Special Committee had a call
with representatives from B. Riley and Harter Secrest in attendance to review the Merger Agreement and the Harter Secrest issues list. After this discussion, the Special Committee asked Harter Secrest to revise the Merger Agreement consistent with
the Special Committees positions coming from that discussion and taking into account any additional feedback it received from Morris Nichols. Later that day, Harter Secrest received feedback from Morris Nichols, which feedback Harter Secrest
discussed with Morris Nichols on July 20, 2021.
Also on July 19, 2021, Mr. DeFalco emailed Mr. Schlarbaum to set up a
time to talk and, if possible, meet in person.
Harter Secrest informed the Special Committee on July 20 of the Morris Nichols
comments, which were consistent with the July 19 discussions and which would be reflected in the redraft Harter Secrest was preparing.
On the morning of July 21, 2021, representatives from Choate, Richards, Layton & Finger, P.A. (Creations Delaware
counsel), Harter Secrest and Morris Nichols had a telephone conference to discuss various matters with respect to the Merger Agreement to allow Harter Secrest to complete its redraft. Harter Secrest also provided the Special Committee and B. Riley a
revised draft of the Merger Agreement on July 21, 2021. After review of that draft, the Special Committee instructed Harter Secrest to share the draft with Choate, which it did later that evening.
On July 23, 2021, Mr. DeFalco and Mr. Schlarbaum spoke on the phone to discuss due diligence and overall process, during which
call they scheduled a meeting in Boston for July 29, 2021.
On July 26, 2021, representatives from Harter Secrest and Choate had
a telephone conference, during which the Choate representative previewed a further revised draft Merger Agreement that Choate expected to send later that day. Choate sent the Merger Agreement to Harter Secrest later that day, which Harter Secrest
promptly forwarded to the Special Committee, B. Riley, McDermott, Morris Nichols and Company management for their respective reviews.
On
July 27, 2021, lawyers from Harter Secrest and Company management had a telephone conference to discuss various covenants and representations and warranties in the July 26 Choate draft Merger Agreement. Late that day, Harter Secrest sent
to the Special Committee for its review and consideration a list of material items/issues reflected in the July 26 Choate draft Merger Agreement, including the tender offer period, the antitrust provisions, the go-shop/no-shop provisions, financing provisions, the termination rights and the size of the proposed termination fee and reverse termination fee and, where applicable, a description of how the redraft varied
from the positions reflected in the July 21 Harter Secrest draft Merger Agreement. Harter Secrest also sent that issues list to Morris Nichols.
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