DEFM14A 1 d608946ddefm14a.htm DEFM14A DEFM14A
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

PROXY STATEMENT PURSUANT TO SECTION 14(a) OF THE

SECURITIES EXCHANGE ACT OF 1934

 

 

Filed by the Registrant  ☒                             Filed by a party other than the Registrant  ☐

Check the appropriate box:

 

  Preliminary Proxy Statement
  Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
  Definitive Proxy Statement
  Definitive Additional Materials
  Soliciting Material under §240.14a-12

CAMBREX CORPORATION

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

  No fee required.
  Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
  (1)  

Title of each class of securities to which transaction applies:

 

 

  (2)  

Aggregate number of securities to which transaction applies:

 

 

  (3)  

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

 

 

  (4)  

Proposed maximum aggregate value of transaction:

 

 

  (5)  

Total fee paid:

 

 

  Fee paid previously with preliminary materials.
  Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
  (1)  

Amount Previously Paid:

 

     

  (2)  

Form, Schedule or Registration Statement No.:

 

     

  (3)  

Filing Party:

 

     

  (4)  

Date Filed:

 

     

 

 

 


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LOGO

CAMBREX CORPORATION

One Meadowlands Plaza

East Rutherford, New Jersey 07073

September 23, 2019

Dear Stockholder:

You are cordially invited to attend a special meeting (including any adjournments or postponements thereof, the “Special Meeting”) of stockholders of Cambrex Corporation (the “Company”) to be held on October 23, 2019, at the Metropolitan Center, One Meadowlands Plaza, East Rutherford, New Jersey 07073, at 1:00 p.m., Eastern time.

At the Special Meeting, you will be asked to consider and vote on (i) a proposal to adopt the Agreement and Plan of Merger, dated as of August 7, 2019 (the “Merger Agreement”), by and among Catalog Intermediate Inc. (“Parent”), Catalog Merger Sub Inc. (“Merger Sub”) and the Company, (ii) a proposal to approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement (the “Compensation Proposal”), and (iii) a proposal to adjourn the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Parent and Merger Sub are controlled by investment funds advised by Permira Advisers LLC (“Permira”). Permira is a global investment firm. Founded in 1985, Permira advises funds with a total committed capital of approximately US$48 billion (€41.5 billion) and makes long-term investments, including majority control investments as well as strategic minority investments, in companies with the objective of transforming their performance and driving sustainable growth. Pursuant to the terms of the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a wholly owned direct subsidiary of Parent (the “Merger”).

If the Merger is completed, you will be entitled to receive $60.00 in cash, without interest thereon and net of any required withholding of taxes, for each share of the Company’s Class A common stock, par value $.10 per share, and each share of Class B common stock, par value $.10 per share (collectively, the “Company Common Stock”), that you own (unless you have not voted in favor of the adoption of the Merger Agreement or consented thereto in writing and have properly exercised your statutory rights of appraisal in respect of such shares of Company Common Stock under Delaware law), which represents a premium of approximately: (1) 47.1% to the closing price of the Company Common Stock on August 6, 2019, the last trading day prior to the Company’s announcement of the Merger, and (2) 37.3% to the 60-day volume weighted average closing price leading up to the announcement of the Merger.

The Board of Directors, after considering the factors more fully described in the enclosed proxy statement, has: (i) determined that the Merger is fair to and in the best interests of the Company and its stockholders, and declared that it is advisable to enter into the Merger Agreement and consummate the Merger upon the terms and subject to the conditions set forth therein; (ii) approved the execution and delivery by the Company of the Merger Agreement and the Fee Funding Agreement described further in the accompanying proxy statement, the performance by the Company of its covenants and other obligations thereunder, and the consummation of the Merger upon the terms and conditions set forth therein; (iii) resolved to recommend that the Company’s stockholders adopt the Merger Agreement in accordance with the General Corporation Law of the State of Delaware; and (iv) directed that the adoption of the


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Merger Agreement be submitted for consideration by the Company’s stockholders at the Special Meeting. The Board of Directors recommends that you vote: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

The enclosed proxy statement provides detailed information about the Special Meeting, the Merger Agreement and the Merger. A copy of the Merger Agreement is attached as Annex A to the proxy statement.

The proxy statement also describes the actions and determinations of the Board of Directors in connection with its evaluation of the Merger Agreement and the Merger. You should carefully read and consider the entire enclosed proxy statement and its annexes, including, but not limited to, the Merger Agreement, as they contain important information about, among other things, the Merger and how it affects you.

Whether or not you plan to attend the Special Meeting in person, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend the Special Meeting and vote in person by ballot, your vote will revoke any proxy that you have previously submitted.

If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions. If you hold your shares through a bank, broker or other nominee and want to vote in person at the Special Meeting, you must obtain a “legal proxy.”

Your vote is very important, regardless of the number of shares that you own. We cannot complete the Merger unless the proposal to adopt the Merger Agreement is approved by the affirmative vote of the holders of at least a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting.

If you have any questions or need assistance voting your shares, please contact our proxy solicitor:

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Call Toll-free: (888) 750-5834

Banks and Brokers Call: (212) 750-5833

On behalf of the Board of Directors, I thank you for your support and appreciate your consideration of this matter.

Sincerely,

 

LOGO

Samantha Hanley

Corporate Secretary

The accompanying proxy statement is dated September 23, 2019 and, together with the enclosed form of proxy card, is first being mailed on or about September 26, 2019.


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LOGO

CAMBREX CORPORATION

One Meadowlands Plaza

East Rutherford, New Jersey 07073

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON OCTOBER 23, 2019

Notice is hereby given that a special meeting of stockholders (including any adjournments or postponements thereof, the “Special Meeting”) of Cambrex Corporation, a Delaware corporation (the “Company”), will be held on October 23, 2019, at the Metropolitan Center, One Meadowlands Plaza, East Rutherford, New Jersey 07073, at 1:00 p.m., Eastern time, for the following purposes:

1. To consider and vote on the proposal to adopt the Agreement and Plan of Merger, dated as of August 7, 2019 (the “Merger Agreement”), by and among Catalog Intermediate Inc. (“Parent”), Catalog Merger Sub Inc. (“Merger Sub”) and the Company. Pursuant to the terms of the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a wholly owned direct subsidiary of Parent (the “Merger”);

2. To consider and vote on the proposal to approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement (the “Compensation Proposal”); and

3. To consider and vote on any proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Only stockholders of record as of the close of business on September 19, 2019, are entitled to notice of the Special Meeting and to vote at the Special Meeting or any adjournment, postponement or other delay thereof.

The Board of Directors recommends that you vote: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Whether or not you plan to attend the Special Meeting in person, please sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend the Special Meeting and vote in person by ballot, your vote will revoke any proxy that you have previously submitted. If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions.

By Order of the Board of Directors,

 

LOGO

Samantha Hanley

Corporate Secretary

Dated: September 23, 2019


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YOUR VOTE IS IMPORTANT

WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING IN PERSON, WE ENCOURAGE YOU TO SUBMIT YOUR PROXY AS PROMPTLY AS POSSIBLE: (1) BY TELEPHONE; (2) THROUGH THE INTERNET; OR (3) BY SIGNING AND DATING THE ENCLOSED PROXY CARD AND RETURNING IT IN THE POSTAGE-PAID ENVELOPE PROVIDED. You may revoke your proxy or change your vote at any time before your proxy is voted at the Special Meeting.

If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your broker or other agent cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions.

If you are a stockholder of record, voting in person by ballot at the Special Meeting will revoke any proxy that you previously submitted. If you hold your shares through a bank, broker or other nominee, you must obtain a “legal proxy” in order to vote in person at the Special Meeting.

If you fail to (1) return your proxy card, (2) grant your proxy electronically over the Internet or by telephone or (3) vote by ballot in person at the Special Meeting, your shares will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement, but will have no effect on the Compensation Proposal or the proposal to adjourn the Special Meeting.

You should carefully read and consider the entire accompanying proxy statement and its annexes, including, but not limited to, the Merger Agreement, as they contain important information about, among other things, the Merger and how it affects you. If you have any questions concerning the Merger Agreement, the Merger, the Special Meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement or need help voting your shares of Company Common Stock, please contact our proxy solicitor:

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Call Toll-free: (888) 750-5834

Banks and Brokers Call: (212) 750-5833


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TABLE OF CONTENTS

 

SUMMARY

     1  

Parties Involved in the Merger

     1  

The Merger

     2  

Merger Consideration

     2  

Material U.S. Federal Income Tax Consequences of the Merger

     3  

Appraisal Rights

     4  

Regulatory Approvals Required for the Merger

     4  

Closing Conditions

     5  

Financing of the Merger

     5  

Required Stockholder Approval

     6  

The Special Meeting

     7  

Recommendation of the Company’s Board of Directors

     7  

Opinion of the Company’s Financial Advisor

     8  

Interests of the Company’s Directors and Executive Officers in the Merger

     9  

Alternative Acquisition Proposals

     10  

Termination of the Merger Agreement

     11  

Effect on the Company if the Merger is Not Completed

     11  

QUESTIONS AND ANSWERS

     13  

FORWARD-LOOKING STATEMENTS

     22  

THE SPECIAL MEETING

     23  

Date, Time and Place

     23  

Purpose of the Special Meeting

     23  

Record Date; Shares Entitled to Vote; Quorum

     23  

Vote Required; Abstentions and Broker Non-Votes

     23  

Shares Held by the Company’s Directors and Executive Officers

     24  

Voting of Proxies

     24  

Revocability of Proxies

     25  

Board of Directors’ Recommendation

     25  

Solicitation of Proxies

     26  

Anticipated Date of Completion of the Merger

     26  

Appraisal Rights

     26  

Delisting and Deregistration of Company Common Stock

     27  

Other Matters

     27  

Important Notice Regarding the Availability of Proxy Materials for the Special Meeting to be Held on October 23, 2019

     27  

Householding of Special Meeting Materials

     27  

Questions and Additional Information

     27  

THE MERGER

     28  

Parties Involved in the Merger

     28  

Effect of the Merger

     29  

Effect on the Company if the Merger is Not Completed

     29  

Merger Consideration

     30  

Background of the Merger

     30  

Recommendation of the Board of Directors and Reasons for the Merger

     38  

Management Projections

     42  

Opinion of the Company’s Financial Advisor

     45  

Interests of the Company’s Directors and Executive Officers in the Merger

     53  

Financing of the Merger

     61  

Closing and Effective Time

     62  

Appraisal Rights

     62  

 

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Litigation Relating to the Merger

     68  

Accounting Treatment

     68  

Material U.S. Federal Income Tax Consequences of the Merger

     68  

Regulatory Approvals Required for the Merger

     71  

PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT

     73  

Effects of the Merger; Directors and Officers; Certificate of Incorporation; Bylaws

     73  

Closing and Effective Time

     74  

Merger Consideration

     74  

Exchange and Payment Procedures

     75  

Representations and Warranties

     75  

Conduct of Business Pending the Merger

     78  

The “Go Shop” Period—Solicitation of Other Offers

     80  

The “No-Shop” Period—No Solicitation of Offers

     82  

The Board of Directors’ Recommendation; Company Board Recommendation Change

     83  

Employee Benefits

     85  

Efforts to Close the Merger

     86  

Cooperation with Debt Financing

     87  

Indemnification and Insurance

     88  

Other Covenants

     89  

Conditions to the Closing of the Merger

     89  

Termination of the Merger Agreement

     90  

Termination Fees

     92  

Specific Performance

     92  

Sole Remedy

     93  

Fees and Expenses

     93  

Amendment

     93  

Governing Law

     93  

Vote Required and Board of Directors Recommendation

     93  

PROPOSAL 2: THE COMPANY’S COMPENSATION PROPOSAL

     94  

PROPOSAL 3: ADJOURNMENT OF THE SPECIAL MEETING

     95  

MARKET PRICES AND DIVIDEND DATA

     96  

SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

     97  

FUTURE STOCKHOLDER PROPOSALS

     99  

WHERE YOU CAN FIND MORE INFORMATION

     100  

MISCELLANEOUS

     101  

Annexes

 

Annex A

  

The Merger Agreement

     A-1  

Annex B

  

Opinion of Morgan Stanley

     B-1  

Annex C

  

Section 262 of the General Corporation Law of the State of Delaware

     C-1  

 

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SUMMARY

This summary highlights selected information from this proxy statement related to the merger of Catalog Merger Sub Inc. with and into Cambrex Corporation (the “Merger”), and may not contain all of the information that is important to you. To understand the Merger more fully and for a more complete description of the legal terms of the Merger, you should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents to which we refer in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. You may obtain documents the Company files with the U.S. Securities and Exchange Commission (the “SEC”) without charge by following the instructions under the caption, “Where You Can Find More Information.” The Merger Agreement (as defined below) is attached as Annex A to this proxy statement. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger.

Except as otherwise specifically noted in this proxy statement, “Cambrex,” the “Company,” “we,” “our,” “us” and similar words refer to Cambrex Corporation. Throughout this proxy statement, we refer to Catalog Intermediate Inc. as “Parent” and Catalog Merger Sub Inc. as “Merger Sub.” In addition, throughout this proxy statement we refer to the Agreement and Plan of Merger, dated as of August 7, 2019, by and among Parent, Merger Sub and the Company, as the “Merger Agreement,” our voting common stock, par value $.10 per share, as “Class A Common Stock,” our non-voting common stock, par value $.10 per share, together with the Class A Common Stock, as “Company Common Stock” and the holders of Company Common Stock as “stockholders.” Unless indicated otherwise, any other capitalized term used herein but not otherwise defined herein has the meaning assigned to such term in the Merger Agreement.

Parties Involved in the Merger (Page 28)

Cambrex Corporation

Cambrex Corporation, a Delaware corporation, began business in December 1981. Cambrex is a life sciences company that provides products and services that accelerate and improve the development and commercialization of new and generic therapeutics. The Company primarily supplies its products and services worldwide to innovator and generic pharmaceutical companies. The Company Common Stock is listed on the New York Stock Exchange (the “NYSE”) under the symbol “CBM.”

Catalog Intermediate Inc.

Parent was formed on August 2, 2019, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement, and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and arranging of the equity financing and the debt financing in connection with the Merger.

Catalog Merger Sub Inc.

Merger Sub is a wholly owned direct subsidiary of Parent and was formed on August 2, 2019, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement, and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and arranging of the equity financing and the debt financing in connection with the Merger.

Parent and Merger Sub are controlled by investment funds advised by Permira Advisers LLC (“Permira”). Permira is a global investment firm. Founded in 1985, Permira advises funds with a total committed capital of



 

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approximately US$48 billion (€41.5 billion) and makes long-term investments, including majority control investments as well as strategic minority investments, in companies with the objective of transforming their performance and driving sustainable growth. The Permira funds have made over 250 private equity investments in five key sectors: Technology, Consumer, Financial Services, Industrial Tech and Services, and Healthcare. Permira employs over 250 people in 14 offices across Europe, North America, and Asia.

In connection with the transactions contemplated by the Merger Agreement, Permira VII L.P.1 and Permira VII L.P.2 SCSp (collectively, the “Permira Funds”), funds affiliated with Permira, have provided Parent with an equity commitment in an aggregate amount in euro equal to $1,382 million in cash (the “Equity Commitment”). The Equity Commitment will be available to fund a portion of the amounts required to be funded by Parent to pay the aggregate purchase price and the fees and expenses required to be paid at the closing of the Merger, as contemplated by, and subject to the terms and conditions of, the Merger Agreement and the Equity Commitment Letter (as defined below). For more information, please see the section of this proxy statement captioned “The Merger—Financing of the Merger.”

The Merger (Page 29)

Upon the terms and subject to the conditions of the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation and as a wholly owned direct subsidiary of Parent (the “Surviving Corporation”). As a result of the Merger, the Company Common Stock will no longer be publicly traded, and will be delisted from the NYSE. In addition, the Company Common Stock will be deregistered under the U.S. Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the Company will no longer file periodic reports with the SEC. If the Merger is completed, you will not own any shares of the capital stock of the Surviving Corporation. The time at which the Merger becomes effective (the “Effective Time”) will occur upon the filing of a certificate of merger with the Secretary of State of the State of Delaware (or at such later time as the Company, Parent and Merger Sub may agree and specify in the certificate of merger).

Merger Consideration (Page 30)

The Company Common Stock

Subject to the terms and conditions set forth in the Merger Agreement, at the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than shares of Company Common Stock (collectively, the “Excluded Shares”) that are (A) owned or held in treasury by the Company, (B) owned by Parent or any of its subsidiaries, (C) owned by stockholders who have not voted in favor of the adoption of the Merger Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect to such shares in accordance with, and who have complied with, Section 262 of the General Corporation Law of the State of Delaware (the “DGCL”)) will be automatically cancelled, extinguished and converted into the right to receive an amount in cash equal to $60.00 (the “Per Share Merger Consideration”), without interest thereon and net of any applicable withholding of taxes.

At or immediately prior to the Effective Time, Parent will deposit (or cause to be deposited) with a designated payment agent an amount of cash equal to the aggregate consideration to which such holders of Company Common Stock (other than holders of Excluded Shares) become entitled pursuant the Merger Agreement. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Exchange and Payment Procedures.”

After the Merger is completed, you will have the right to receive the Per Share Merger Consideration, but you will no longer have any rights as a stockholder (except that stockholders who properly exercise their appraisal



 

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rights may have the right to receive payment for the “fair value” of their shares determined pursuant to an appraisal proceeding, as contemplated by Delaware law). For more information, please see the section of this proxy statement captioned “The Merger—Appraisal Rights.”

Treatment of Company Options, Company RSUs and Company PSUs

The Merger Agreement provides that at the Effective Time:

 

   

each option to purchase shares of Company Common Stock (each, a “Company Option”) that is outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00 (less the exercise price per share attributable to such Company Option), multiplied by the total number of shares of Company Common Stock issuable upon exercise in full of such Company Option, provided that if the exercise price per share of any such Company Option is equal to or greater than $60.00, such Company Option will be cancelled for no consideration;

 

   

each Company restricted stock unit subject solely to time-vesting conditions (each, a “Company RSU”) that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00, multiplied by the total number of shares of Company Common Stock subject to such Company RSU; and

 

   

each Company restricted stock unit subject to performance-vesting conditions (each, a “Company PSU”) that is outstanding immediately prior to the Effective Time will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00, multiplied by the total number of shares of Company Common Stock subject to such Company PSU, with any performance-based vesting conditions deemed achieved at the greater of (x) target levels of performance and (y) actual levels of performance, without pro-ration.

For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration—Outstanding Company Options, Company RSUs and Company PSUs.”

Material U.S. Federal Income Tax Consequences of the Merger (Page 68)

The receipt of cash by the Company’s stockholders in exchange for shares of Company Common Stock in the Merger will be a taxable transaction to the Company’s stockholders for U.S. federal income tax purposes. Such receipt of cash by each stockholder that is a U.S. Holder (as defined under the caption, “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”) generally will result in the recognition of gain or loss in an amount measured by the difference, if any, between the amount of cash that such U.S. Holder receives in the Merger and such U.S. Holder’s adjusted tax basis in the shares of Company Common Stock surrendered in the Merger by such stockholder. Backup withholding taxes may also apply to the cash payments made pursuant to the Merger, unless the U.S. Holder complies with certification procedures under the backup withholding rules.

A stockholder that is a Non-U.S. Holder (as defined under the caption, “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”) generally will not be subject to U.S. federal income tax with respect to the exchange of Company Common Stock for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding tax unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding tax.

Stockholders should read the section of this proxy statement captioned “The Merger—Material U.S. Federal Income Tax Consequences of the Merger.”



 

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Stockholders should also consult their own tax advisors concerning the U.S. federal income tax consequences relating to the Merger in light of their particular circumstances and any consequences arising under U.S. federal estate, gift and other non-income tax laws or the laws of any state, local or non-U.S. taxing jurisdiction.

Appraisal Rights (Page 62)

If the Merger is consummated and certain conditions are met, the Company’s stockholders who continuously hold shares of Company Common Stock through the Effective Time, who do not vote in favor of the adoption of the Merger Agreement and who properly demand appraisal of their shares and who do not withdraw their demands or otherwise lose their rights to seek appraisal will be entitled to seek appraisal of their shares in connection with the Merger under Section 262 of the DGCL. This means that stockholders may be entitled to have their shares of Company Common Stock appraised by the Delaware Court of Chancery, and to receive payment in cash of the “fair value” of their shares of Company Common Stock, exclusive of any elements of value arising from the accomplishment or expectation of the Merger, together with interest to be paid on the amount determined to be fair value, if any, as determined by the court, as described further below. Due to the complexity of the appraisal process, stockholders who wish to seek appraisal of their shares are encouraged to seek the advice of legal counsel with respect to the exercise of appraisal rights.

Stockholders considering seeking appraisal should be aware that the fair value of their shares as determined pursuant to Section 262 of the DGCL could be more than, the same as or less than the value of the consideration that they would receive pursuant to the Merger Agreement if they did not seek appraisal of their shares of Company Common Stock.

To exercise appraisal rights, stockholders must: (1) submit a written demand for appraisal to the Company before the vote is taken on the proposal to adopt the Merger Agreement; (2) not submit a proxy, or otherwise vote, in favor of the proposal to adopt the Merger Agreement; (3) continue to hold shares of Company Common Stock of record through the Effective Time; and (4) strictly comply with all other procedures for exercising appraisal rights under the DGCL. Failure to follow exactly the procedures specified under the DGCL may result in the loss of appraisal rights. In addition, the Delaware Court of Chancery will dismiss appraisal proceedings in respect of the Company unless certain stock ownership conditions are satisfied by the stockholders seeking appraisal. The DGCL requirements for exercising appraisal rights are described in further detail in this proxy statement, which is qualified in its entirety by Section 262 of the DGCL, the relevant section of the DGCL regarding appraisal rights. A copy of Section 262 of the DGCL is reproduced in Annex C to this proxy statement. If you hold your shares of Company Common Stock through a bank, broker or other nominee and you wish to exercise appraisal rights, you should consult with your bank, broker or other nominee to determine the appropriate procedures for the making of a demand for appraisal on your behalf by your bank, broker or other nominee. For more information, please see the section of this proxy statement captioned “The Merger—Appraisal Rights.”

Regulatory Approvals Required for the Merger (Page 71)

Under the Merger Agreement and as agreed by the parties, the Merger cannot be consummated until the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), has expired or been terminated, and until the requisite approvals under European Commission Merger Regulation have been obtained. For more information, please see the section of this proxy statement captioned “The Merger—Regulatory Approvals Required for the Merger.”

On August 21, 2019, the Company and Permira made the filings required to be made under the HSR Act and made a request for early termination of the HSR Act waiting period, and on September 3, 2019, early termination of such waiting period was granted.



 

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On August 27, 2019, Permira made a referral request to the European Commission (the “Commission”) requesting that the Commission assume jurisdiction to review the Merger in lieu of certain Member States of the European Union (“Member States”). Following a pre-notification period and the formal filing of the referral request, the Member States have 15 working days within which to state their objection (the “Non-Opposition Period”). The Non-Opposition Period ends on October 14, 2019.

Unless a Member State objects during the Non-Opposition Period (in which case the Merger will remain subject to review by certain Member States), the Commission will assume jurisdiction. Following a pre-notification period, the Commission has 25 working days to clear the Merger, either unconditionally or subject to accepted remedies (in which case the review period will be extended to 35 working days), or to open an in-depth investigation.

Closing Conditions (Page 89)

The obligations of the Company, Parent and Merger Sub, as applicable, to consummate the Merger are subject to the satisfaction or waiver of customary conditions, including (among other conditions), the following:

 

 

   

the adoption of the Merger Agreement by the requisite affirmative vote of stockholders;

 

   

the expiration or termination of the applicable waiting period under the HSR Act and the requisite approvals under European Commission Merger Regulation;

 

   

the consummation of the Merger not being restrained, enjoined, rendered illegal or otherwise prohibited or prevented by any law or order issued by any court of competent jurisdiction or other governmental authority;

 

   

the accuracy of the representations and warranties of the Company, Parent and Merger Sub in the Merger Agreement, in some respects subject to certain materiality qualifiers, as of the date of the Merger Agreement, the date of the closing of the Merger, or an earlier date if such representation or warranty expressly speaks as of such earlier date;

 

   

the performance in all material respects by the Company, Parent and Merger Sub of their respective obligations required to be performed by them under the Merger Agreement at or prior to the closing of the Merger; and

 

   

since the date of the Merger Agreement, there has not been any change, event, effect, condition, development, state of facts or circumstance that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Conditions to the Closing of the Merger.”

Financing of the Merger (Page 61)

The obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition. It is anticipated that the total amount of funds necessary to complete the Merger and the related transactions, and to pay the fees and expenses required to be paid at the closing of the Merger by Parent and Merger Sub under the Merger Agreement, will be approximately $2,560 million in cash. In connection with the financing of the Merger, the Permira Funds, Parent, Merger Sub and certain affiliates of Parent and Merger Sub have entered into an equity commitment letter, dated August 7, 2019 (the “Equity Commitment Letter”), in respect of the Equity Commitment. The Equity Commitment is an amount in euro which is equal to $1,382 million in cash.



 

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In connection with the financing of the Merger, Merger Sub also has obtained a Commitment Letter (as amended from time to time in accordance with the Merger Agreement, the “Debt Commitment Letter”) from Royal Bank of Canada (the “Arranger”), pursuant to which the Arranger has committed to provide, upon the terms and subject to the conditions set forth in the Debt Commitment Letter, a senior secured first lien term loan facility in an amount equal to $875 million and a $135 million senior secured first lien revolving credit facility (collectively, the “First Lien Credit Facilities”), and a senior secured second lien term loan facility in an amount equal to $250 million (the “Second Lien Facility” and, together with the First Lien Credit Facilities, the “Facilities” and each, a “Facility”).

The Debt Financing (as defined below) contemplated by the Debt Commitment Letter is conditioned on the consummation of the Merger in accordance with the Merger Agreement, as well as other customary conditions.

The Equity Commitment, the Debt Financing, and unrestricted cash at the Company will be available (i) to fund the aggregate purchase price, (ii) to repay, prepay or discharge (after giving effect to the Merger) the principal of and interest on, and all other indebtedness and other amounts outstanding pursuant to the Company’s existing credit agreement, (iii) for working capital and other general corporate purposes and (iv) to pay all fees and expenses required to be paid at the closing of the Merger by Parent, Merger Sub and the Company contemplated by, and subject to the terms and conditions of, the Merger Agreement. Upon the terms and subject to the conditions of the Equity Commitment Letter, the Company has a contractual right to enforce the Equity Commitment Letter against the Permira Funds and, under the terms and subject to the conditions of the Merger Agreement, the Company has the right to specifically enforce Parent’s obligation to consummate the Merger upon receipt of the proceeds of the Debt Financing. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Specific Performance.”

Pursuant to the Fee Funding Agreement, dated as of August 7, 2019 (the “Fee Funding Agreement”), delivered by the Permira Funds in favor of the Company, the Permira Funds have agreed to fund the following payment obligations of Parent and Merger Sub under the Merger Agreement, which are subject to an aggregate cap equal to the sum of all such payment obligations: (i) monetary damages, including all or a portion of the $123,200,859 Parent Termination Fee (as defined below) if required, on the terms and subject to the limitations set forth in the Merger Agreement; (ii) any amounts in respect of certain reimbursement and indemnification obligations of Parent and Merger Sub for certain costs, expenses or losses incurred or sustained by the Company, as specified in the Merger Agreement (the “Reimbursement Obligations”); (iii) any interest on the Parent Termination Fee required to be paid by Parent to the Company, as specified in the Merger Agreement (“Interest Expenses”); and (iv) any amounts in respect of certain out-of-pocket costs and expenses (including attorneys’ fees) related to the Company’s efforts to obtain payment of the Parent Termination Fee, as specified in the Merger Agreement (“Enforcement Expenses”). For more information about the Equity Commitment, Debt Financing and the Fee Funding Agreement, please see the section of this proxy statement captioned “The Merger—Financing of the Merger.”

Required Stockholder Approval (Page 23)

The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting (as defined below) is required to adopt the Merger Agreement. As of the Record Date, 16,862,184 shares constitute a majority of the outstanding shares of Company Common Stock. Approval of the proposal to approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement (the “Compensation Proposal”) requires the affirmative vote of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter (provided a quorum is present). The approval of the Compensation Proposal is advisory (non-binding) and is not a condition to the completion of the



 

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Merger. Approval of the proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting (the “Adjournment Proposal”), whether or not a quorum is present, requires the affirmative vote of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter. For more information, please see the section of this proxy statement captioned “The Special Meeting—Vote Required; Abstentions and Broker Non-Votes.”

As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 279,740 shares of Company Common Stock, representing approximately 0.83% of the shares of Company Common Stock outstanding as of the Record Date and entitled to vote at the Special Meeting (and approximately 1.96% of the shares of Company Common Stock outstanding and entitled to vote when taking into account Company Options, Company RSUs and Company PSUs held by our directors and executive officers). Our directors and executive officers have informed us that they currently intend to vote all of their respective shares of Company Common Stock: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the Adjournment Proposal.

The Special Meeting (Page 23)

Date, Time and Place

A special meeting of the Company’s stockholders to consider and vote on the proposal to adopt the Merger Agreement will be held on October 23, 2019, at the Metropolitan Center, One Meadowlands Plaza, East Rutherford, New Jersey 07073, at 1:00 p.m., Eastern time (the “Special Meeting”).

Record Date; Shares Entitled to Vote

You are entitled to vote at the Special Meeting if you owned shares of Class A Common Stock at the close of business on September 19, 2019 (the “Record Date”). Each holder of Class A Common Stock shall be entitled to one (1) vote for each such share owned at the close of business on the Record Date.

Quorum

As of the Record Date, there were 33,724,367 shares of Company Common Stock outstanding and entitled to vote at the Special Meeting. The holders of a majority of the shares of Company Common Stock entitled to vote at the Special Meeting, present in person or by proxy, will constitute a quorum at the Special Meeting.

Recommendation of the Company’s Board of Directors (Page 38)

After considering various factors described in this proxy statement under the caption, “The Merger—Recommendation of the Board of Directors and Reasons for the Merger,” the Board of Directors of the Company (the “Board of Directors”): (i) determined that the Merger is fair to and in the best interests of the Company and its stockholders, and declared that it is advisable to enter into the Merger Agreement and consummate the Merger upon the terms and subject to the conditions set forth therein; (ii) approved the execution and delivery of the Merger Agreement and the Fee Funding Agreement by the Company, the performance by the Company of its covenants and other obligations thereunder, and the consummation of the Merger upon the terms and conditions set forth therein; (iii) resolved to recommend that the Company’s stockholders adopt the Merger Agreement in accordance with the DGCL; and (iv) directed that the adoption of the Merger Agreement be submitted for consideration by the Company’s stockholders at the Special Meeting.



 

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The Board of Directors recommends that the Company’s stockholders vote: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR” the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Prior to the adoption of the Merger Agreement by stockholders, under certain circumstances, the Board of Directors may withhold, withdraw or modify the foregoing recommendation if it determines in good faith (after consultation with its financial advisors and its outside legal counsel) that failure to do so would be inconsistent with its directors’ fiduciary duties to stockholders under applicable law. However, the Board of Directors cannot withhold, withdraw or modify the foregoing recommendation unless it complies with certain procedures in the Merger Agreement, including, but not limited to, negotiating with Parent in good faith over a specified number of days to enable Parent to adjust the terms and conditions of the Merger Agreement, the Debt Commitment Letter and the Equity Commitment Letter in such a manner that would obviate the need to effect a Company Board Recommendation Change (as defined in the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Board of Directors’ Recommendation; Company Board Recommendation Change”). The termination of the Merger Agreement by Parent following a Company Board Recommendation Change will result in the payment by the Company of a termination fee to Parent in the amount of $61,600,430. The termination of the Merger Agreement by the Company following the Board of Directors’ authorization for the Company to enter into a definitive agreement to consummate an alternative transaction contemplated by a Superior Proposal will result in the payment by the Company of a termination fee to Parent of (a) if payable in connection with the Company’s entry into a definitive agreement prior to 12:01 a.m. on October 7, 2019 (the “Cut-Off Time”) with respect to a Superior Proposal made by an Excluded Party, $25,666,846 or (b) if payable in any other circumstance, $61,600,430. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Board of Directors’ Recommendation; Company Board Recommendation Change.”

Opinion of the Company’s Financial Advisor (Page 45)

Morgan Stanley & Co. LLC (“Morgan Stanley”) was retained by the Board of Directors to act as its financial advisor in connection with a potential sale of the Company. The Board of Directors selected Morgan Stanley to act as its financial advisor based on Morgan Stanley’s qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in the Company’s industry and its knowledge and understanding of the business and affairs of the Company. On August 6, 2019, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the Board of Directors to the effect that, as of that date, and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanley’s written opinion, the Per Share Merger Consideration to be received by the holders of shares, of Company Common Stock other than holders of the Excluded Shares, pursuant to the Merger Agreement was fair, from a financial point of view, to such holders.

The full text of the written opinion of Morgan Stanley delivered to the Board of Directors, dated August 6, 2019, is attached as Annex B and incorporated by reference into this proxy statement in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. Stockholders of the Company are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanley’s opinion is directed to the Board of Directors and addresses only the fairness, from a financial point of view, of the Per Share Merger Consideration to be paid to the holders of shares of Company Common Stock, other than holders of the Excluded Shares, pursuant to the Merger Agreement. Morgan Stanley’s opinion did not address any other aspect of the transactions contemplated by the Merger Agreement and did not address any other aspects or implications of the Merger. Morgan



 

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Stanley’s opinion was not intended to, and does not constitute advice or a recommendation as to how stockholders should vote at any stockholders’ meeting to be held in connection with the Merger or to take any other action with respect to the Merger. The summary of Morgan Stanley’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Morgan Stanley’s opinion.

For a description of the opinion that our Board of Directors received from Morgan Stanley, see the section of this proxy statement captioned “The Merger—Opinion of the Company’s Financial Advisor.”

Interests of the Company’s Directors and Executive Officers in the Merger (Page 53)

When considering the foregoing recommendation of the Board of Directors that you vote to approve the proposal to adopt the Merger Agreement, the Company’s stockholders should be aware that the Company’s directors and executive officers may have interests in the Merger that are different from, or in addition to, those of the Company’s stockholders more generally. In (1) evaluating and negotiating the Merger Agreement, (2) approving the Merger Agreement and the Merger and (3) recommending that the Merger Agreement be adopted by stockholders, the Board of Directors was aware of and considered these interests, among other matters, to the extent that these interests existed or were contemplated at the time. These interests include, among others:

 

   

accelerated vesting and cash out, at the Effective Time, of certain equity-based awards held by our executive officers and members of our Board of Directors immediately prior to the Effective Time, as more fully described below in the section of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Treatment of Company Options, Company RSUs and Company PSUs”;

 

   

the eligibility of certain of our executive officers to receive, in the event of a qualifying termination of employment, severance payments and benefits under an employment agreement between such executive officer and the Company, as more fully described below in the sections of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Payments Upon Termination at or Following Change in Control” and “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Potential Change-In-Control Payments to Named Executive Officers”;

 

   

the eligibility of certain of our directors to receive compensation for service on the ad hoc transaction committee of the Board of Directors; and

 

   

continued indemnification and directors’ and officers’ liability insurance to be provided by the Surviving Corporation, as more fully described below in the section of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Insurance and Indemnification of Directors and Executive Officers.”

Due to his role as an advisor for Permira and the chairman of one of Permira’s portfolio companies, Mr. Claes Glassell recused himself from board discussions regarding the Merger and abstained from voting as a member of the Board of Directors to approve the Merger Agreement and the Merger.

If the proposal to adopt the Merger Agreement is approved, the shares of Company Common Stock held by the Company’s directors and executive officers will be treated in the same manner as outstanding shares of the Company Common Stock held by all other stockholders. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration.”



 

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Alternative Acquisition Proposals (Page 80)

The “Go-Shop” Period—Solicitation of Other Acquisition Proposals

Under the Merger Agreement, from the date of the Merger Agreement until 12:01 a.m., New York City time, on September 22, 2019 (the “No-Shop Period Start Date”), the Company and its affiliates and their respective representatives have the right to, among other things and subject to certain conditions: (1) solicit, initiate, propose or induce the making, submission or announcement of, or encourage, facilitate or assist, any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal (as defined in the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The “Go-Shop” Period—Solicitation of Other Offers”); and (2) engage in, enter into, continue or otherwise participate in, any discussions or negotiations with any persons with respect to any Acquisition Proposal and cooperate with or assist or participate in any such inquiries, proposals, offers, discussions or negotiations or any effort or attempt to make any Acquisition Proposals, as further described under the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The “Go-Shop” Period—Solicitation of Other Offers.”

The “No-Shop” Period—No Solicitation of Other Acquisition Proposals

Under the Merger Agreement, from the No-Shop Period Start Date until the earlier to occur of the termination of the Merger Agreement and the Effective Time, the Company is subject to certain “no-shop” obligations (“no-shop obligations”) that prohibit the Company from, among other things: (1) soliciting, initiating, proposing or inducing the making, submission or announcement of, or knowingly encouraging, facilitating or assisting, any proposal or offer that constitutes or could reasonably be expected to lead to an Acquisition Proposal; (2) furnishing to any person any non-public information relating to the Company or any of its subsidiaries, with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal; or (3) participating or engaging in discussions or negotiations with any person with respect to an Acquisition Proposal (or inquiries, proposals or offers or any other effort or attempt that could reasonably be expected to lead to an Acquisition Proposal).

Notwithstanding these restrictions, the Company and its Representatives may continue to engage in the activities described above under the caption “—The “Go Shop” Period—Solicitation of Other Offers” with respect to any Excluded Party (as defined in the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The “Go-Shop” Period—Solicitation of Other Offers”) until the earlier of 12:01 am on October 7, 2019 and the time that such Excluded Party ceases to be an Excluded Party. In addition, under certain circumstances and notwithstanding these restrictions, after the No-Shop Period Start Date and prior to the adoption of the Merger Agreement by the Company’s stockholders, the Company and the Board of Directors and their respective representatives may participate or engage in negotiations or discussions with, or provide information to, a person in respect of an unsolicited Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such person (and its representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such person and such Acquisition Proposal did not result from a breach of the Company’s obligations, as described in the immediately preceding paragraph) if (and only if), subject to complying with certain procedures described in the subsequent paragraph, the Board of Directors determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, and, in each case, the failure to act in respect of such Acquisition Proposal would be inconsistent with the Board of Directors’ fiduciary duties to stockholders under applicable law. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The “No-Shop” Period—No Solicitation of Offers.”



 

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Prior to the adoption of the Merger Agreement by the Company’s stockholders, the Company is entitled to terminate the Merger Agreement for the purpose of entering into an agreement in respect of a Superior Proposal if it complies with certain procedures in the Merger Agreement, including, but not limited to, negotiating with Parent in good faith over a three-business-day period in an effort to adjust the terms and conditions of the Merger Agreement, the Debt Commitment Letter and the Equity Commitment Letter in such a manner that would obviate the need to effect a Company Board Recommendation Change.

If the Company terminates the Merger Agreement prior to the Cut-Off Time for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the adoption of the Merger Agreement by stockholders, the Company must substantially concurrently with such termination pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement for the purpose of entering into an agreement in respect of a Superior Proposal under any other circumstance, the Company must pay a termination fee of $61,600,430 to Parent. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—The Board of Directors’ Recommendation; Company Board Recommendation Change.”

Termination of the Merger Agreement (Page 90)

In addition to the circumstances described above, Parent and the Company have certain rights to terminate the Merger Agreement under customary circumstances, including by mutual written agreement, the imposition of laws or non-appealable court orders that make the Merger illegal or otherwise prohibit the Merger, an uncured breach of the Merger Agreement by the other party, if the Merger has not been consummated by 11:59 p.m., New York City time, on May 7, 2020 (the “Termination Date”), and if the Company’s stockholders fail to adopt the Merger Agreement at the Special Meeting (or any adjournment or postponement thereof). If the Company terminates the Merger Agreement prior to the Cut-Off Time for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the adoption of the Merger Agreement by stockholders, the Company must substantially concurrently with such termination pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement for the purpose of entering into an agreement in respect of a Superior Proposal under any other circumstance, the Company must pay a termination fee of $61,600,430 to Parent. If Parent terminates the Merger Agreement due to the occurrence of a Parent Breach Termination or a Closing Failure Termination (each as defined below) or if the Merger Agreement is terminated because it has not been consummated by the Termination Date and at such time the Company could have terminated the Merger Agreement due to a Parent Breach Termination or a Closing Failure Termination, Parent must pay a termination fee of $123,200,859. Please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Termination Fees.”

Effect on the Company if the Merger is Not Completed (Page 29)

If the Merger Agreement is not adopted by stockholders, or if the Merger is not completed for any other reason:

 

i.

the stockholders will not be entitled to, nor will they receive, any payment for their respective shares of Company Common Stock pursuant to the Merger Agreement;

 

ii.

(A) the Company will remain an independent public company, (B) the Company Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and (C) the Company will continue to file periodic reports with the SEC; and

 

iii.

if the Company terminates the Merger Agreement prior to the Cut-Off Time for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the adoption of the Merger Agreement by stockholders, the Company must substantially concurrently with such termination pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement for the purpose



 

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  of entering into an agreement in respect of a Superior Proposal under any other circumstance, the Company must pay a termination fee of $61,600,430 to Parent. If Parent terminates the Merger Agreement due to the occurrence of a Parent Breach Termination or a Closing Failure Termination or if the Merger Agreement is terminated because it has not been consummated by the Termination Date and at such time the Company could have terminated the Merger Agreement due to a Parent Breach Termination or a Closing Failure Termination, Parent must pay a termination fee of $123,200,859. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Termination Fees.”


 

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QUESTIONS AND ANSWERS

The following questions and answers address some commonly asked questions regarding the Merger, the Merger Agreement and the Special Meeting. These questions and answers may not address all questions that are important to you. You should carefully read and consider the more detailed information contained elsewhere in this proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents we refer to in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. You may obtain the documents we file with the SEC without charge by following the instructions under the caption, “Where You Can Find More Information.”

 

Q:

What is the proposed transaction and what effects will it have on the Company?

 

A:

The proposed transaction is the acquisition of the Company by Parent pursuant to the Merger Agreement. If the proposal to adopt the Merger Agreement is approved by our stockholders and the other closing conditions under the Merger Agreement have been satisfied or waived, Merger Sub will merge with and into the Company, with the Company continuing as the surviving corporation. As a result of the Merger, the Company will become a direct wholly owned subsidiary of Parent and will no longer be a publicly held corporation, and you will no longer have any interest in our future earnings or growth. In addition, the Company Common Stock will be delisted from the NYSE and deregistered under the Exchange Act, and we will no longer file periodic reports with the SEC on account of the Company Common Stock.

 

Q:

Why am I receiving these materials?

 

A:

The Board of Directors is furnishing this proxy statement and form of proxy card to the holders of shares of Class A Common Stock in connection with the solicitation of proxies to be voted at the Special Meeting.

 

Q:

When and where is the Special Meeting?

 

A:

The Special Meeting will take place on October 23, 2019, at the Metropolitan Center, One Meadowlands Plaza, East Rutherford, New Jersey 07073, at 1:00 p.m., Eastern time.

 

Q:

What am I being asked to vote on at the Special Meeting?

 

A:

You are being asked to vote on the following proposals:

 

   

to adopt the Merger Agreement pursuant to which Merger Sub will merge with and into the Company, with the Company surviving the Merger as a wholly owned direct subsidiary of Parent;

 

   

to approve, on an advisory (non-binding) basis, the Compensation Proposal; and

 

   

to approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

 

Q:

Who is entitled to vote at the Special Meeting?

 

A:

Stockholders of Class A Common Stock as of the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. Each such stockholder shall be entitled to cast one (1) vote on each matter properly brought before the Special Meeting for each such share of Class A Common Stock owned at the close of business on the Record Date.

 

Q:

May I attend the Special Meeting and vote in person?

 

A:

Yes. All stockholders of Class A Common Stock as of the Record Date may attend the Special Meeting and vote in person. Seating will be limited. Stockholders will need to present proof of ownership of shares of

 

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  Class A Common Stock, such as a bank or brokerage account statement, and a form of personal identification to be admitted to the Special Meeting. No cameras, recording equipment, electronic devices, large bags, briefcases or packages will be permitted in the Special Meeting.

Even if you plan to attend the Special Meeting in person, to ensure that your shares will be represented at the Special Meeting we encourage you to sign, date and return the enclosed proxy card in the accompanying prepaid reply envelope or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). If you attend the Special Meeting and vote in person by ballot, your vote will revoke any proxy previously submitted.

If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form that you will receive from your bank, broker or other nominee. Your broker or other agent cannot vote on any of the proposals, including the proposal to adopt the Merger Agreement, without your instructions. If you hold your shares in “street name,” you may not vote your shares in person at the Special Meeting unless you obtain a “legal proxy” from your bank, broker or other nominee.

 

Q:

What will I receive if the Merger is completed?

 

A:

Upon completion of the Merger, you will be entitled to receive the Per Share Merger Consideration, without interest thereon and net of any applicable withholding of taxes, for each share of Company Common Stock that you own, unless you have properly exercised and not withdrawn your appraisal rights, and followed the procedures in the manner prescribed by Section 262 of the DGCL. For example, if you own 100 shares of Company Common Stock, you will receive $6,000.00 in cash in exchange for your shares of Company Common Stock, without any interest, and net of any applicable withholding of taxes.

 

Q:

How does the Per Share Merger Consideration compare to the market price of Company Common Stock prior to announcement of the Merger?

 

A:

The per share merger consideration represents a premium of approximately 47.1% to the closing share price of Company Common Stock on August 6, 2019, the last trading day prior to the announcement of the Merger, a premium of approximately 37.3% to the 60-day volume weighted average closing price leading up to the announcement of the Merger.

 

Q:

What are the U.S. federal income tax consequences of the Merger?

 

A:

The receipt of cash by the Company’s stockholders in exchange for shares of Company Common Stock in the Merger will be a taxable transaction to the Company’s stockholders for U.S. federal income tax purposes. In general, for U.S. federal income tax purposes, a U.S. holder (as defined in “The Merger—Material U.S. Federal Income Tax Consequences”) of Company Common Stock who receives cash in exchange for such U.S. holder’s shares of Company Common Stock pursuant to the Merger will recognize gain or loss in an amount equal to the difference, if any, between (1) the amount of cash received in the merger and (2) such U.S. holder’s adjusted tax basis in the shares of Company Common Stock exchanged therefor.

A stockholder that is a Non-U.S. Holder (as defined under the caption, “The Merger—Material U.S. Federal Income Tax Consequences of the Merger”) generally will not be subject to U.S. federal income tax with respect to the exchange of Company Common Stock for cash in the Merger unless such Non-U.S. Holder has certain connections to the United States, but may be subject to backup withholding tax unless the Non-U.S. Holder complies with certain certification procedures or otherwise establishes a valid exemption from backup withholding tax.

For a more complete description of the U.S. federal income tax consequences of the Merger, see “The Merger—Material U.S. Federal Income Tax Consequences” beginning on page 28.

 

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This proxy statement contains a discussion of the material U.S. federal income tax consequences of the Merger. This discussion does not address any non-U.S. tax consequences, nor does it pertain to state or local income or other tax consequences. You should consult your own tax advisors regarding the particular U.S. federal income tax consequences of the Merger to you in light of your particular circumstances, as well as the particular tax consequences to you of the Merger under any state, local or non-U.S. income or other tax laws.

 

Q:

What vote is required to adopt the Merger Agreement?

 

A:

The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting is required to adopt the Merger Agreement.

If a quorum is present at the Special Meeting, the failure of any stockholder of record to: (1) submit a signed proxy card; (2) grant a proxy over the Internet or by telephone (using the instructions provided in the enclosed proxy card); or (3) vote in person by ballot at the Special Meeting will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement. If you hold your shares in “street name” and a quorum is present at the Special Meeting, the failure to instruct your bank, broker or other nominee how to vote your shares will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement. If a quorum is present at the Special Meeting, abstentions will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

 

Q:

What happens if the Merger is not completed?

 

A:

If the Merger Agreement is not adopted by stockholders or if the Merger is not completed for any other reason, stockholders will not receive any payment for their shares of Company Common Stock. Instead, the Company will remain an independent public company, the Company Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and we will continue to file periodic reports with the SEC.

If the Company terminates the Merger Agreement prior to the Cut-Off Time for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the adoption of the Merger Agreement by stockholders, the Company must substantially concurrently with such termination pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement for the purpose of entering into an agreement in respect of a Superior Proposal under any other circumstance, the Company must pay a termination fee of $61,600,430 to Parent. If Parent terminates the Merger Agreement due to the occurrence of a Parent Breach Termination or a Closing Failure Termination or if the Merger Agreement is terminated because it has not been consummated by the Termination Date and at such time the Company could have terminated the Merger Agreement due to a Parent Breach Termination or a Closing Failure Termination, Parent must pay a termination fee of $123,200,859, as described in the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Termination Fees.”

 

Q:

How does the Board of Directors recommend that I vote?

 

A:

The Board of Directors recommends that you vote (i) “FOR” the proposal to adopt the Merger Agreement, (ii) “FOR” the Compensation Proposal, and (iii) “FOR” the proposal to approve one or more adjournments of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies.

 

Q:

Do any of the Company’s directors or officers have interests in the Merger that may differ from or be in addition to my interests as a stockholder?

 

A:

The Company’s stockholders should be aware that the Company’s directors and executive officers may have interests in the Merger that are different from, or in addition to, those of the Company’s stockholders more

 

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  generally. In (1) evaluating and negotiating the Merger Agreement, (2) approving the Merger Agreement and the Merger and (3) recommending that the Merger Agreement be adopted by stockholders, the Board of Directors was aware of and considered these interests, among other matters, to the extent that these interests existed or were contemplated at the time. These interests include, among others:

 

   

Accelerated vesting and cash out, at the Effective Time, of certain equity-based awards held by our executive officers and members of our Board of Directors immediately prior to the Effective Time, as more fully described below in the section of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Treatment of Company Options, Company RSUs and Company PSUs”;

 

   

the eligibility of certain of our executive officers to receive, in the event of a qualifying termination of employment, severance payments and benefits under an employment agreement between such executive officer and the Company, as more fully described below in the sections of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Payments Upon Termination at or Following Change in Control” and “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Potential Change-In-Control Payments to Named Executive Officers”;

 

   

the eligibility of certain of our directors to receive compensation for service on the ad hoc transaction committee of the Board of Directors, as more fully described below in the section of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Ad Hoc Committee Compensation”; and

 

   

continued indemnification and directors’ and officers’ liability insurance to be provided by the Surviving Corporation, as more fully described below in the section of this proxy statement captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger—Insurance and Indemnification of Directors and Executive Officers.”

If the proposal to adopt the Merger Agreement is approved, the shares of Company Common Stock held by the Company’s directors and executive officers will be treated in the same manner as outstanding shares of the Company Common Stock held by all other stockholders. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration.”

 

Q:

Why are the stockholders being asked to cast an advisory (non-binding) vote to approve the Compensation Proposal?

 

A:

The Exchange Act and applicable SEC rules thereunder require the Company to seek an advisory (non-binding) vote with respect to certain payments that could become payable to its named executive officers in connection with the Merger.

 

Q:

What vote is required to approve the Compensation Proposal?

 

A:

The affirmative vote of the holders of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter (provided a quorum is present) is required for approval of the Compensation Proposal.

 

Q:

What will happen if the stockholders do not approve the Compensation Proposal at the Special Meeting?

 

A:

Approval of the Compensation Proposal is not a condition to the completion of the Merger. The vote with respect to the Compensation Proposal is an advisory vote and will not be binding on the Company. Therefore, if the other requisite stockholder approvals are obtained and the Merger is completed, the amounts payable under the Compensation Proposal will continue to be payable to the Company’s named executive officers in accordance with the terms and conditions of the applicable agreements.

 

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Q:

What will the holders of Company Options, Company RSUs and Company PSUs receive in the Merger?

 

A:

The Merger Agreement provides that at the Effective Time:

 

   

each Company Option that is outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00 (less the exercise price per share attributable to such Company Option), multiplied by the total number of shares of Company Common Stock issuable upon exercise in full of such Company Option, provided that if the exercise price per share of any such Company Option is equal to or greater than $60.00, such Company Option will be cancelled for no consideration;

 

   

each Company RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00, multiplied by the total number of shares of Company Common Stock subject to such Company RSU; and

 

   

each Company PSU that is outstanding immediately prior to the Effective Time will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of $60.00, multiplied by the total number of shares of Company Common Stock subject to such Company PSU, with any performance-based vesting conditions deemed achieved at the greater of (x) target levels of performance and (y) actual levels of performance, without pro-ration.

For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Merger Consideration—Outstanding Company Options, Company RSUs and Company PSUs.”

 

Q:

What do I need to do now?

 

A:

You should carefully read and consider this entire proxy statement and the annexes to this proxy statement, including, but not limited to, the Merger Agreement, along with all of the documents that we refer to in this proxy statement, as they contain important information about, among other things, the Merger and how it affects you. Then sign, date and return, as promptly as possible, the enclosed proxy card in the accompanying reply envelope, or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card), so that your shares can be voted at the Special Meeting, unless you wish to seek appraisal. If you hold your shares in “street name,” please refer to the voting instruction forms provided by your bank, broker or other nominee to vote your shares.

 

Q:

Should I surrender my shares now?

 

A:

No. After the Merger is completed, the payment agent will send each holder of record a letter of transmittal and written instructions that explain how to exchange shares of Company Common Stock represented by such holder’s book-entry shares for the Per Share Merger Consideration.

 

Q:

What happens if I sell or otherwise transfer my shares of Company Common Stock after the Record Date but before the Special Meeting?

 

A:

The Record Date for the Special Meeting is earlier than the date of the Special Meeting and the date the Merger is expected to be completed. If you sell or transfer your shares of Company Common Stock after the Record Date but before the Special Meeting, unless special arrangements (such as provision of a proxy) are made between you and the person to whom you sell or otherwise transfer your shares and each of you notifies the Company in writing of such special arrangements, you will transfer the right to receive the Per Share Merger Consideration, if the Merger is completed, to the person to whom you sell or transfer your

 

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  shares, but you will retain your right to vote those shares at the Special Meeting, if applicable. Even if you sell or otherwise transfer your shares of Company Common Stock after the Record Date, we encourage you to sign, date and return the enclosed proxy card in the accompanying reply envelope or grant your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card).

 

Q:

What is the difference between holding shares as a stockholder of record and as a beneficial owner?

 

A:

If your shares are registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, you are considered, with respect to those shares, to be the “stockholder of record.” In this case, this proxy statement and your proxy card have been sent directly to you by the Company or its representatives.

If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares of Company Common Stock held in “street name.” In that case, this proxy statement has been forwarded to you by your bank, broker or other nominee. As the beneficial owner, you have the right to direct your bank, broker or other nominee how to vote your shares by following their instructions for voting. You are also invited to attend the Special Meeting. However, because you are not the stockholder of record, you may not vote your shares in person at the Special Meeting unless you obtain a “legal proxy” from your bank, broker or other nominee.

 

Q:

How may I vote?

 

A:

If you are a stockholder of record (that is, if your shares of Company Common Stock are registered in your name with American Stock Transfer & Trust Company, LLC, our transfer agent), there are four ways to vote:

 

   

by signing, dating and returning the enclosed proxy card in the accompanying prepaid reply envelope;

 

   

by visiting the Internet at the address on your proxy card;

 

   

by calling toll-free (within the United States or Canada) at the phone number on your proxy card; or

 

   

by attending the Special Meeting and voting in person by ballot.

A control number, located on your proxy card, is designed to verify your identity and allow you to grant your proxy, and to confirm that your voting instructions have been properly recorded when granting your proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). Please be aware that, although there is no charge for voting your shares or granting your proxy, if you grant your proxy electronically over the Internet or by telephone, you may incur costs such as Internet access and telephone charges for which you will be responsible.

Even if you plan to attend the Special Meeting in person, you are strongly encouraged to vote your shares of Company Common Stock by proxy. If you are a record holder or if you obtain a “legal proxy” to vote shares that you beneficially own, you may still vote your shares of Company Common Stock in person by ballot at the Special Meeting even if you have previously voted by proxy. If you are present at the Special Meeting and vote in person by ballot, your previous vote by proxy will not be counted.

If your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee, or, if such a service is provided by your bank, broker or other nominee, electronically over the Internet or by telephone. To vote over the Internet or by telephone through your bank, broker or other nominee, you should follow the instructions on the voting form provided by your bank, broker or nominee.

 

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Q:

If my broker holds my shares in “street name,” will my broker vote my shares for me?

 

A:

No. Your bank, broker or other nominee is permitted to vote your shares on any proposal currently scheduled to be considered at the Special Meeting only if you instruct your bank, broker or other nominee how to vote. You should follow the procedures provided by your bank, broker or other nominee to vote your shares. Without instructions, your shares will not be voted on such proposals, which will have the same effect as if you voted against adoption of the Merger Agreement, but will have no effect on the Compensation Proposal or the Adjournment Proposal.

 

Q:

May I change my vote after I have mailed my signed and dated proxy card?

 

A:

Yes. If you are a stockholder of record, you may change your vote or revoke your proxy at any time before it is voted at the Special Meeting by:

 

   

signing another proxy card with a later date and returning it to us prior to the Special Meeting;

 

   

submitting a new proxy electronically over the Internet or by telephone after the date of the earlier submitted proxy;

 

   

delivering a written notice of revocation to Samantha Hanley, Vice President, General Counsel and Corporate Secretary, Cambrex Corporation, One Meadowlands Plaza, East Rutherford, New Jersey 07073; or

 

   

attending the Special Meeting and voting in person by ballot.

If you hold your shares of Company Common Stock in “street name,” you should contact your bank, broker or other nominee for instructions regarding how to change your vote. You may also vote in person at the Special Meeting if you obtain a “legal proxy” from your bank, broker or other nominee.

 

Q:

What is a quorum?

 

A:

The holders of a majority of the shares of Company Common Stock outstanding at the close of business on the Record Date and entitled to vote, present in person or represented by proxy, at the Special Meeting constitutes a quorum for the purposes of the Special Meeting. Abstentions are counted as present for the purpose of determining whether a quorum is present.

 

Q:

How are votes counted?

 

A:

For the proposal to adopt the Merger Agreement, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Abstentions and broker non-votes, if any, will have the same effect as votes “AGAINST” the proposal to adopt the Merger Agreement.

For the Compensation Proposal, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Assuming a quorum is present, abstentions and broker non-votes, if any, will have no effect on the Compensation Proposal.

For the proposal to approve one or more adjournments of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies, you may vote “FOR,” “AGAINST” or “ABSTAIN.” Abstentions and broker non-votes, if any, will have no effect on the proposal to approve one or more adjournments of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies.

 

Q:

What is a proxy?

 

A:

A proxy is your legal designation of another person to vote your shares of Company Common Stock. The written document describing the matters to be considered and voted on at the Special Meeting is called a “proxy statement.” The document used to designate a proxy to vote your shares of Company Common Stock is called a “proxy card.” Steven M. Klosk, Gregory P. Sargen and Samantha M. Hanley are the proxy holders for the Special Meeting, with full power of substitution and re-substitution.

 

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Q:

If a stockholder gives a proxy, how are the shares voted?

 

A:

Regardless of the method you choose to vote, the individuals named on the enclosed proxy card, or your proxies, will vote your shares in the way that you indicate. When completing the Internet or telephone process or the proxy card, you may specify whether your shares should be voted for or against or to abstain from voting on all, some or none of the specific items of business to come before the Special Meeting.

If you properly sign your proxy card but do not mark the boxes showing how your shares should be voted on a matter, the shares represented by your properly signed proxy will be voted: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

 

Q:

Who will solicit and pay the cost of soliciting proxies?

 

A:

The Company has engaged Innisfree M&A Incorporated (“Innisfree”) to assist in the solicitation of proxies for the Special Meeting at a cost of approximately $25,000 plus certain expenses. The Company will also indemnify Innisfree against losses arising out of its provision of these services on its behalf. In addition, the Company may reimburse banks, brokers and other nominees representing beneficial owners of shares for their expenses in forwarding soliciting materials to such beneficial owners. Proxies may also be solicited by the Company’s directors, officers and employees, personally or by telephone, email, fax, over the Internet or other means of communication. No additional compensation will be paid for such services.

 

Q:

What should I do if I receive more than one set of voting materials?

 

A:

Please sign, date and return (or grant your proxy electronically over the Internet or by telephone using the instructions provided in the enclosed proxy card) each proxy card and voting instruction card that you receive.

You may receive more than one set of voting materials, including multiple copies of this proxy statement and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a stockholder of record and your shares are registered in more than one name, you will receive more than one proxy card.

 

Q:

Am I entitled to exercise appraisal rights under the DGCL instead of receiving the Per Share Merger Consideration for my shares of Company Common Stock?

 

A:

If the Merger is completed, stockholders who do not vote in favor of the adoption of the Merger Agreement and who properly demand appraisal of their shares of Company Common Stock will be entitled to appraisal rights in connection with the Merger under Section 262 of the DGCL. This means that holders of shares of Company Common Stock are entitled to have their shares appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of their shares of Company Common Stock, exclusive of any elements of value arising from the accomplishment or expectation of the Merger, together with interest on the amount determined to be fair value, if any, as determined by the court. Stockholders who wish to seek appraisal of their shares are in any case encouraged to seek the advice of legal counsel with respect to the exercise of appraisal rights due to the complexity of the appraisal process. The DGCL requirements for exercising appraisal rights are described in additional detail in this proxy statement, and the relevant section of the DGCL regarding appraisal rights is reproduced in Annex C to this proxy statement. For a more complete description, please refer to the section entitled “The Merger—Appraisal Rights” beginning on page 62.

 

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Q:

Where can I find the voting results of the Special Meeting?

 

A:

If available, the Company may announce preliminary voting results at the conclusion of the Special Meeting. The Company intends to publish final voting results in a Current Report on Form 8-K to be filed with the SEC following the Special Meeting. All reports that the Company files with the SEC are publicly available when filed. For more information, please see the section of this proxy statement captioned “Where You Can Find More Information.”

 

Q:

When do you expect the Merger to be completed?

 

A:

We are working toward completing the Merger as quickly as possible and currently expect to complete the Merger during the fourth quarter of 2019. However, the exact timing of completion of the Merger cannot be predicted because the Merger is subject to the closing conditions specified in the Merger Agreement, many of which are outside of our control.

 

Q:

Who can help answer my questions?

 

A:

If you have any questions concerning the Merger, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your shares of Company Common Stock, please contact our proxy solicitor:

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Call Toll-free: (888) 750-5834

Banks and Brokers Call: (212) 750-5833

 

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FORWARD-LOOKING STATEMENTS

Information set forth in this proxy statement, including financial estimates and statements as to the expected timing, completion and effects of the proposed transaction between the Company and Permira, constitute forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Exchange Act. These statements may be identified by the fact that they use words such as “may,” “will,” “could,” “should,” “would,” “expect,” “anticipate,” “intend,” “estimate,” “believe” or similar expressions. Any forward-looking statements contained herein are based on current plans and expectations and involve risks and uncertainties that could cause actual outcomes and results to differ materially from current expectations. These forward-looking statements are subject to risks and uncertainties, and actual results might differ materially from those discussed in, or implied by, the forward-looking statements. Such forward-looking statements may include, but are not limited to, statements about the anticipated benefits of the Merger, including future financial and operating results, expected synergies and cost savings related to the Merger, the plans, objectives, expectations and intentions of the Company, Permira and the combined company, the expected timing of the completion of the Merger, and other statements that are not historical facts. Such statements are based upon the current beliefs and expectations of the management of the Company or Permira, as applicable, and are qualified by the inherent risks and uncertainties surrounding future expectations generally, and actual results could differ materially from those currently anticipated due to a number of risks and uncertainties. Neither the Company nor Permira, nor any of their respective directors, executive officers or advisors, provide any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements will actually occur. Among the risks and uncertainties that could cause actual results to differ from those described in the forward-looking statements are the following:

 

   

the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement;

 

   

the risk that the Company’s stockholders may not adopt the Merger Agreement;

 

   

the risk that the necessary regulatory approvals may not be obtained or may be obtained subject to conditions that are not anticipated;

 

   

risks that any of the closing conditions to the Merger may not be satisfied or waived in a timely manner;

 

   

risks related to disruption of management time from ongoing business operations due to the Merger;

 

   

the effect of the announcement of the Merger on the ability of the Company to retain customers and retain and hire key personnel and maintain relationships with its suppliers and other business partners, and on the Company’s operating results and businesses generally;

 

   

the risk that potential litigation in connection with the Merger may affect the timing or occurrence of the Merger or result in significant costs of defense, indemnification and liability and transaction costs.

The forward-looking statements are based on the beliefs and assumptions of Company management and the information available to Company management as of the date of filing of this proxy statement. The Company cautions investors not to place undue reliance on expectations regarding future results, levels of activity, performance, achievements or other forward-looking statements. The information contained in this proxy statement is provided by the Company as of the date hereof, and, unless required by law, the Company does not undertake and specifically disclaims any obligation to update these forward-looking statements contained in this document as a result of new information, future events or otherwise.

Discussions of additional risks and uncertainties are and will be contained in the Company’s filings with the SEC, including the “Risk Factors” section of the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018. You can obtain copies of the Company’s filings with the SEC for free at the SEC’s website (www.sec.gov).

 

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THE SPECIAL MEETING

The enclosed proxy is solicited on behalf of the Board of Directors for use at the Special Meeting.

Date, Time and Place

We will hold the Special Meeting on October 23, 2019 at the Metropolitan Center, One Meadowlands Plaza, East Rutherford, New Jersey 07073, at 1:00 p.m., Eastern time.

Purpose of the Special Meeting

At the Special Meeting, we will ask stockholders to vote on proposals to: (1) adopt the Merger Agreement; (2) approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement; and (3) adjourn the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Record Date; Shares Entitled to Vote; Quorum

Only stockholders of record as of the Record Date are entitled to notice of the Special Meeting and to vote at the Special Meeting. A list of stockholders entitled to vote at the Special Meeting will be available at our principal executive offices located at One Meadowlands Plaza, East Rutherford, New Jersey 07073, during regular business hours for a period of no less than ten days before the Special Meeting and at the place of the Special Meeting during the meeting. Stockholders may make arrangements for such inspection by contacting Samantha Hanley, Vice President, General Counsel and Corporate Secretary, Cambrex Corporation, One Meadowlands Plaza, East Rutherford, New Jersey 07073.

As of the Record Date, there were 33,724,367 shares of Company Common Stock outstanding and entitled to vote at the Special Meeting.

The holders of a majority of the shares of Company Common Stock entitled to vote at the Special Meeting, present in person or by proxy, will constitute a quorum at the Special Meeting. In the event that a quorum is not present at the Special Meeting, it is expected that the meeting will be adjourned to solicit additional proxies.

Vote Required; Abstentions and Broker Non-Votes

The affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting is required to adopt the Merger Agreement. As of the Record Date, 16,862,184 shares of Company Common Stock constitute a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting. Adoption of the Merger Agreement by stockholders is a condition to the closing of the Merger.

The affirmative vote of the holders of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter (provided a quorum is present) is required to approve, on an advisory (non-binding) basis, the Compensation Proposal.

Approval of the Adjournment Proposal, whether or not a quorum is present, requires the affirmative vote of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter.

If a stockholder abstains from voting, that abstention will have the same effect as if the stockholder voted “AGAINST” the proposal to adopt the Merger Agreement and “AGAINST” the proposal to approve, on an

 

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advisory (non-binding) basis, the Compensation Proposal. For stockholders who attend the meeting or are represented by proxy and abstain from voting, the abstention will have the same effect as if the stockholder voted “AGAINST” any Adjournment Proposal.

Each “broker non-vote” (if any) will also count as a vote “AGAINST” the proposal to adopt the Merger Agreement, but will have no effect on the Compensation Proposal or any Adjournment Proposal. A “broker non-vote” generally occurs when a bank, broker or other nominee holding shares on your behalf does not vote on a proposal because the bank, broker or other nominee has not received your voting instructions and lacks discretionary power to vote the shares. A bank, broker or other nominee generally has discretion to vote on “routine” matters but cannot vote on “non-routine” matters. As long as there is at least one “routine” matter to be voted upon at a meeting, “broker non-votes” will be counted as present for the purpose of determining whether a quorum is present. All of the matters to be voted upon at the Special Meeting are “non-routine” matters. “Broker non-votes,” if any, will not be counted for the purpose of determining whether a quorum is present.

Shares Held by the Company’s Directors and Executive Officers

As of the Record Date, our directors and executive officers beneficially owned and were entitled to vote, in the aggregate, 279,740 shares of Company Common Stock, representing approximately 0.83% of the shares of Company Common Stock outstanding as of the Record Date and entitled to vote at the Special Meeting (and approximately 1.96% of the shares of Company Common Stock outstanding and entitled to vote when taking into account Company Options, Company RSUs and Company PSUs held by our directors and executive officers).

Our directors and executive officers have informed us that they currently intend to vote all of their respective shares of Company Common Stock: (1) “FOR” adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

Voting of Proxies

If your shares are registered in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, you may cause your shares to be voted by returning a signed and dated proxy card in the accompanying prepaid envelope, or you may vote in person at the Special Meeting. Additionally, you may grant a proxy electronically over the Internet or by telephone (using the instructions provided in the enclosed proxy card). You must have the enclosed proxy card available, and follow the instructions on the proxy card, in order to grant a proxy electronically over the Internet or by telephone. Based on your proxy cards or Internet and telephone proxies, the proxy holders will vote your shares according to your directions.

If you plan to attend the Special Meeting and wish to vote in person, you will be given a ballot at the Special Meeting. If your shares are registered in your name, you are encouraged to vote by proxy even if you plan to attend the Special Meeting in person. If you attend the Special Meeting and vote in person by ballot, your vote will revoke any previously submitted proxy.

Voting instructions are included on your proxy card. All shares represented by properly signed and dated proxies received in time for the Special Meeting will be voted at the Special Meeting in accordance with the instructions of the stockholder. Properly signed and dated proxies that do not contain voting instructions will be voted: (1) “FOR” adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” any Adjournment Proposal.

If your shares are held in “street name” through a bank, broker or other nominee, you may vote through your bank, broker or other nominee by completing and returning the voting form provided by your bank, broker or other nominee or attending the Special Meeting and voting in person with a “legal proxy” from your bank, broker

 

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or other nominee. If such a service is provided, you may vote over the Internet or telephone through your bank, broker or other nominee by following the instructions on the voting form provided by your bank, broker or other nominee. If you do not return your bank’s, broker’s or other nominee’s voting form, do not vote via the Internet or telephone through your bank, broker or other nominee, if possible, or do not attend the Special Meeting and vote in person with a “legal proxy” from your bank, broker or other nominee, it will have the same effect as if you voted “AGAINST” the proposal to adopt the Merger Agreement but will not have any effect on the Compensation Proposal or the Adjournment Proposal.

Revocability of Proxies

If you are a stockholder of record, you may change your vote or revoke your proxy at any time before it is voted at the Special Meeting by:

 

   

signing another proxy card with a later date and returning it to us prior to the Special Meeting;

 

   

submitting a new proxy electronically over the Internet or by telephone after the date of the earlier submitted proxy;

 

   

delivering a written notice of revocation to Samantha Hanley, Vice President, General Counsel and Corporate Secretary, Cambrex Corporation, One Meadowlands Plaza, East Rutherford, New Jersey 07073; or

 

   

attending the Special Meeting and voting in person by ballot.

If you have submitted a proxy, your appearance at the Special Meeting will not have the effect of revoking your prior proxy; provided that you do not vote in person or submit an additional proxy or revocation, which, in each case, will have the effect of revoking your proxy.

If you hold your shares of Company Common Stock in “street name,” you should contact your bank, broker or other nominee for instructions regarding how to change your vote. You may also vote in person at the Special Meeting if you obtain a “legal proxy” from your bank, broker or other nominee.

Any adjournment, postponement or other delay of the Special Meeting, including for the purpose of soliciting additional proxies, will allow stockholders who have already sent in their proxies to revoke them at any time prior to their use at the Special Meeting as adjourned, postponed or delayed.

Board of Directors’ Recommendation

After careful consideration, and after considering various factors described under the caption, “The Merger—Recommendation of the Board of Directors and Reasons for the Merger,” the Board of Directors: (i) determined that the Merger is fair to and in the best interests of the Company and its stockholders, and declared that it is advisable to enter into the Merger Agreement and consummate the Merger upon the terms and subject to the conditions set forth therein; (ii) approved the execution and delivery of the Merger Agreement and the Fee Funding Agreement by the Company, the performance by the Company of its covenants and other obligations thereunder, and the consummation of the Merger upon the terms and conditions set forth therein; (iii) resolved to recommend that the Company’s stockholders adopt the Merger Agreement in accordance with the DGCL; and (iv) directed that the adoption of the Merger Agreement be submitted for consideration by the Company’s stockholders at the Special Meeting.

Accordingly, the Board of Directors recommends that you vote: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” the adjournment of the Special Meeting, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting.

 

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Solicitation of Proxies

The expense of soliciting proxies will be borne by the Company. We have retained Innisfree, a proxy solicitation firm, to solicit proxies in connection with the Special Meeting at a cost of approximately $25,000 plus reasonable out-of-pocket expenses. We will also indemnify Innisfree against losses arising out of its provision of these services on our behalf. In addition, we may reimburse banks, brokers and other nominees representing beneficial owners of shares for their expenses in forwarding soliciting materials to such beneficial owners. Proxies may also be solicited by our directors, officers and employees, personally or by telephone, email, fax, over the Internet or other means of communication. No additional compensation will be paid for such services.

Anticipated Date of Completion of the Merger

Assuming timely satisfaction of necessary closing conditions, including the approval by stockholders of the proposal to adopt the Merger Agreement, we anticipate that the Merger will be consummated during the fourth quarter of 2019.

Appraisal Rights

If the Merger is consummated, stockholders who continuously hold shares of Company Common Stock through the Effective Time, who do not vote in favor of the adoption of the Merger Agreement and who properly demand appraisal of their shares and do not withdraw their demands or otherwise lose their rights to seek appraisal will be entitled to appraisal of their shares in connection with the Merger under Section 262 of the DGCL. This means that holders of shares of Company Common Stock who perfect their appraisal rights, who do not thereafter withdraw their demand for appraisal, and who follow the procedures in the manner prescribed by Section 262 of the DGCL will be entitled to have their shares appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of their shares of Company Common Stock, exclusive of any elements 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 on the amount determined to be fair value (or in certain circumstances described in further detail in the section of this proxy statement captioned “The Merger—Appraisal Rights,” on the difference between the amount determined to be the fair value and the amount paid by the Surviving Corporation in the Merger to each stockholder entitled to appraisal prior to the entry of judgment in any appraisal proceeding). Due to the complexity of the appraisal process, stockholders who wish to seek appraisal of their shares are encouraged to review Section 262 of the DGCL carefully and to seek the advice of legal counsel with respect to the exercise of appraisal rights.

Stockholders considering seeking appraisal should be aware that the fair value of their shares as determined pursuant to Section 262 of the DGCL could be more than, the same as or less than the value of the consideration that they would receive pursuant to the Merger Agreement if they did not seek appraisal of their shares.

To exercise your appraisal rights, you must: (1) submit a written demand for appraisal to the Company before the vote is taken on the adoption of the Merger Agreement; (2) not submit a proxy, or otherwise vote, in favor of the proposal to adopt the Merger Agreement; (3) continue to hold your shares of Company Common Stock of record through the Effective Time; and (4) strictly comply with all other procedures for exercising appraisal rights under Section 262 of the DGCL. Your failure to follow exactly the procedures specified under Section 262 of the DGCL may result in the loss of your appraisal rights. In addition, the Delaware Court of Chancery will dismiss appraisal proceedings in respect of the Merger unless certain stock ownership conditions are satisfied by the stockholders seeking appraisal. The DGCL requirements for exercising appraisal rights are described in further detail in the section of this proxy statement captioned “The Merger—Appraisal Rights,” which is qualified in its entirety by Section 262 of the DGCL, the relevant section of the DGCL regarding appraisal rights. A copy of Section 262 of the DGCL is reproduced and attached as Annex C to this proxy statement and incorporated herein by reference. If you hold your shares of Company Common Stock through a bank, brokerage firm or other

 

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nominee and you wish to exercise appraisal rights, you should consult with your bank, brokerage firm or other nominee to determine the appropriate procedures for the making of a demand for appraisal by such bank, brokerage firm or nominee.

Delisting and Deregistration of Company Common Stock

If the Merger is completed, the shares of Company Common Stock will be delisted from the NYSE and deregistered under the Exchange Act, and shares of Company Common Stock will no longer be publicly traded.

Other Matters

Pursuant to the Company’s bylaws, the business to be conducted at the Special Meeting is limited exclusively to the matters set forth in the Notice of Special Meeting of Stockholders that accompanies this proxy statement.

Important Notice Regarding the Availability of Proxy Materials for the Special Meeting to be Held on October 23, 2019

The proxy statement is available at ir.cambrex.com.

Householding of Special Meeting Materials

Unless we have received contrary instructions, we may send a single copy of this proxy statement to any household at which two or more stockholders reside if the stockholders have the same last name. Each stockholder in the household will continue to receive a separate proxy card. This process, known as “householding,” reduces the volume of duplicate information received at your household and helps to reduce our expenses.

If you would like to receive your own set of our disclosure documents this year or in future years, please contact us using the instructions set forth below. Similarly, if you share an address with another stockholder and together both of you would like to receive only a single set of our disclosure documents, please contact us using the instructions set forth below.

If you are a stockholder of record, you may contact Investor Relations at (201) 804-3000. Eligible stockholders of record receiving multiple copies of this proxy statement can request householding by contacting us in the same manner. If a bank, broker or other nominee holds your shares, please contact your bank, broker or other nominee directly.

Questions and Additional Information

If you have any questions concerning the Merger, the Special Meeting or this proxy statement, would like additional copies of this proxy statement or need help voting your shares of Company Common Stock, please contact our proxy solicitor:

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Call Toll-free: (888) 750-5834

Banks and Brokers Call: (212) 750-5833

 

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THE MERGER

This discussion of the Merger is qualified in its entirety by reference to the Merger Agreement, which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, because this document contains important information about the Merger and how it affects you.

Parties Involved in the Merger

Cambrex Corporation

One Meadowlands Plaza

East Rutherford, New Jersey 07073

(201) 804-3000

Cambrex Corporation, a Delaware corporation, began business in December 1981. Cambrex is a life sciences company that provides products and services that accelerate and improve the development and commercialization of new and generic therapeutics. The Company primarily supplies its products and services worldwide to innovator and generic pharmaceutical companies. The Company Common Stock is listed on the NYSE under the symbol “CBM.”

Catalog Intermediate Inc.

c/o Permira Advisers LLC

320 Park Avenue, 28th Floor

New York, NY 10022

(212) 386-7480

Parent was formed on August 2, 2019, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement, and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and arranging of the equity financing and the debt financing in connection with the Merger.

Catalog Merger Sub Inc.

c/o Permira Advisers LLC

320 Park Avenue, 28th Floor

New York, NY 10022

(212) 386-7480

Merger Sub is a wholly owned direct subsidiary of Parent and was formed on August 2, 2019, solely for the purpose of engaging in the transactions contemplated by the Merger Agreement, and has not engaged in any business activities other than in connection with the transactions contemplated by the Merger Agreement and arranging of the equity financing and the debt financing in connection with the Merger.

Parent and Merger Sub are each affiliated with the Permira Funds, and Parent, Merger Sub and the Permira Funds are each affiliated with Permira. Permira is a global investment firm. Founded in 1985, Permira advises funds with a total committed capital of approximately US$48 billion (€41.5 billion) and makes long-term investments, including majority control investments as well as strategic minority investments, in companies with the objective of transforming their performance and driving sustainable growth. The Permira funds have made over 250 private equity investments in five key sectors: Technology, Consumer, Financial Services, Industrial Tech and Services, and Healthcare. Permira employs over 250 people in 14 offices across Europe, North America, and Asia.

In connection with the transactions contemplated by the Merger Agreement, the Permira Funds have provided Parent with the Equity Commitment in an aggregate amount in euro equal to $1,382 million in cash. The Equity

 

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Commitment will be available to fund a portion of the amounts required to be funded by Parent to pay the aggregate purchase price required to be paid at the closing of the Merger, as contemplated by, and subject to the terms and conditions of, the Merger Agreement and the Equity Commitment Letter.

Effect of the Merger

Upon the terms and subject to the conditions of the Merger Agreement, Merger Sub will merge with and into the Company, with the Company continuing as the Surviving Corporation. As a result of the Merger, the Company Common Stock will no longer be publicly traded, and will be delisted from the NYSE. In addition, the Company Common Stock will be deregistered under the Exchange Act, and the Company will no longer file periodic reports with the SEC. If the Merger is completed, you will not own any shares of the capital stock of the Surviving Corporation.

The Effective Time will occur upon the filing of a certificate of merger with the Secretary of State of the State of Delaware (or at such later time as the Company, Parent and Merger Sub may agree and specify in the certificate of merger).

Effect on the Company if the Merger is Not Completed

If the Merger Agreement is not adopted by stockholders, or if the Merger is not completed for any other reason:

 

i.

the stockholders will not be entitled to, nor will they receive, any payment for their respective shares of Company Common Stock pursuant to the Merger Agreement;

 

ii.

(A) the Company will remain an independent public company, (B) the Company Common Stock will continue to be listed and traded on the NYSE and registered under the Exchange Act, and (C) the Company will continue to file periodic reports with the SEC;

 

iii.

we anticipate that stockholders will be subject to similar types of risks and uncertainties as those to which they are currently subject, including, but not limited to, customer and product concentration, the Company’s ability to secure new customer contracts and renew existing contracts on favorable terms, significant declines in sales of products to customers, pharmaceutical outsourcing trends, competitive pricing or product developments, market acceptance and adoption rate of the Company’s customers’ products, government legislation and regulations (including those pertaining to environmental issues), the possibility that the benefits from the acquisitions of Halo Pharma and Avista Pharma Solutions may not be as anticipated, the ability to successfully integrate acquisitions, tax rate, interest rate, technology, manufacturing and legal issues, including the outcome of outstanding litigation, environmental matters, changes in foreign exchange rates, uncollectible receivables, the timing and/or volume of orders or shipments and the Company’s ability to meet its production plan and customer delivery schedules, expected timing of completion of capacity expansions, cancellations or delays in renewal of contracts, lack of suitable raw materials, the Company’s ability to receive regulatory approvals for its products, continued demand in the U.S. for late stage clinical products and the successful outcome of the Company’s investment in new products;

 

iv.

the price of the Company Common Stock may decline significantly, and if that were to occur, it is uncertain when, if ever, the price of the Company Common Stock would return to the price at which it trades as of the date of this proxy statement; and

 

v.

if the Company terminates the Merger Agreement prior to the Cut-Off Time for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the adoption of the Merger Agreement by stockholders, the Company must substantially concurrently with such termination pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement for the purpose of entering into an agreement in respect of a Superior Proposal under any other circumstance, the Company must pay a termination fee of $61,600,430 to Parent. If Parent terminates the Merger Agreement due to the

 

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  occurrence of a Parent Breach Termination or a Closing Failure Termination or if the Merger Agreement is terminated because it has not been consummated by the Termination Date and at such time the Company could have terminated the Merger Agreement due to a Parent Breach Termination or a Closing Failure Termination, Parent must pay a termination fee of $123,200,859. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Termination Fees.”

Merger Consideration

Subject to the terms and conditions set forth in the Merger Agreement, at the Effective Time, each share of Company Common Stock issued and outstanding immediately prior to the Effective Time (other than Company Common Stock owned or held in treasury by the Company or owned by Parent or any of its subsidiaries and Company Common Stock owned by stockholders who have properly exercised appraisal rights pursuant to Delaware law) will be automatically converted into the right to receive the Per Share Merger Consideration in an amount in cash equal to $60.00, without interest thereon and net of any applicable withholding of taxes.

At or immediately prior to the Effective Time, Parent will deposit (or cause to be deposited) with a designated payment agent cash sufficient to pay the aggregate consideration to which holders of Company Common Stock (other than stockholders who have not voted in favor of the adoption of the Merger Agreement or consented thereto in writing and who have properly exercised appraisal rights with respect to such shares in accordance with, and who have complied with, Section 262 of the DGCL) become entitled pursuant to the Merger Agreement. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Exchange and Payment Procedures.”

After the Merger is completed, you will have the right to receive the Per Share Merger Consideration, but you will no longer have any rights as a stockholder (except that stockholders who properly exercise their appraisal rights may have the right to receive payment for the “fair value” of their shares determined pursuant to an appraisal proceeding, as contemplated by Delaware law). For more information, please see the section of this proxy statement captioned “—Appraisal Rights.”

Background of the Merger

The Board of Directors, together with the Company’s management and with the assistance of the Company’s advisors, periodically reviews and considers various strategic and other opportunities available to the Company, potential operational changes and other ways to enhance stockholder value. These reviews have, from time to time, included discussions as to whether the continued execution of the Company’s strategy as a stand-alone company (including possible acquisition opportunities) or the possible sale of the Company to, or combination of the Company with, a third party offered a better avenue to enhance stockholder value, and the potential benefits and risks of any such alternative or initiative.

As part of these periodic reviews, from December 2017 to April 2018, the Board of Directors held Board meetings to discuss with the Company’s management and its advisors the Company’s strategic plan, financial projections and the potential opportunities and challenges facing the Company and considered potential strategic alternatives available to the Company. In connection with these reviews, the Board of Directors engaged Kirkland & Ellis LLP (“Kirkland”) as legal counsel and Morgan Stanley as financial advisor.

During this strategic review process, following deliberation and discussion with the Company’s management and advisors, the Board of Directors determined that, while the Company’s management should continue to execute and enhance the Company’s strategic plan, the Company should at the same time explore the possibility of a strategic transaction, including a potential sale of the Company or a significant acquisition by the Company. With respect to a potential sale of the Company, the Board of Directors considered the risks associated with pursuing a sale transaction, including possible leaks and management distraction. In order to explore a potential sale of the

 

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Company while mitigating the risks of conducting such an exploration, the Board discussed with its advisors and management the possibility of soliciting initial indications of value from a limited number of potential acquirers who would be most likely interested in transacting with the Company. In connection with this discussion, the Board of Directors also discussed with the Company’s management and advisors whether, based on industry conditions and the strategic focus of other participants in the industry, financial sponsors would be more likely to be interested in transacting with the Company than strategic buyers. The Board of Directors also considered certain additional risks associated with holding discussions regarding a potential sale transaction with strategic buyers, noting the possibility of a post-signing go-shop process if a transaction were to be entered into. Following these discussions and deliberations, the Board concluded that the Company should pursue a limited market check involving a targeted list of financial sponsors in order to check the market and determine whether there would be interest in a transaction at pricing levels acceptable to the Board of Directors. To assist the Board of Directors in managing the process of exploring strategic alternatives, the Board of Directors determined to form an ad hoc committee of convenience consisting of Louis Grabowsky, Ilan Kaufthal and Shlomo Yanai (the “ad hoc committee”).

Consistent with the mandate of the Board of Directors and at the direction of the ad hoc committee, Morgan Stanley reached out to determine potential interest in a sale transaction with four financial sponsors, including Permira, between February 2018 and April 2018. To facilitate these financial sponsors’ evaluation of a potential transaction, the Company held a management meeting with each of these financial sponsors. Following the management meetings, two of the financial sponsors indicated that they would not be in a position to submit a proposal with a value representing a premium to the Company’s trading price, and the other two financial sponsors, Permira and another party which we refer to as Party A, submitted initial indications of interest. After conducting additional due diligence on the Company, each of Permira and Party A indicated to representatives of the Company that it did not intend to further proceed because it did not believe it could submit a proposal at a sufficient price level for a transaction.

Following the conclusion of the 2018 strategic review process described above the Company, at the direction of the Board of Directors, continued to execute on its strategic plan, including to grow its Innovator product category and to engage in strategic growth acquisitions. Consistent with its strategic plan, on July 20, 2018, the Company entered into an agreement to acquire Halo Pharma for $425 million, and on November 19, 2018, the Company entered into an agreement to acquire Avista Pharma Solutions, Inc. for $252 million.

In October 2018, the Company received an inquiry from another participant in the pharmaceutical industry (which we refer to as “Party B”), to explore a strategic transaction involving the Company. In light of the operational overlap between the Company and Party B, the Board of Directors determined that it would not be advisable to provide non-public information of the Company to Party B until Party B had submitted an initial indication of value and instructed the Company’s management to convey this message to Party B. After receiving the message, Party B did not submit any indication of value.

On May 6, 2019, at the request of Party B, representatives of the Company participated in a meeting with representatives of Party B, during which Party B made a presentation, including regarding its own business.

On May 17 and 20, 2019, respectively, representatives of Permira contacted Steven Klosk, President and Chief Executive Officer of the Company, and Mr. Kaufthal, in each case indicating that, following discussions with the Company the year before, Permira would be interested in further exploring an acquisition of the Company and that in order to enable the Board of Directors to better evaluate this opportunity, Permira would send a written indication of interest.

On May 20, 2019, Mr. Kaufthal informed the other members of the ad hoc committee of his conversation with Permira, noting that a written indication of interest from Permira would be forthcoming and proposed that the Board of Directors discuss this proposal after its receipt.

 

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Later on May 20, 2019, the Company received a written indication of interest, subject to further due diligence, from Permira for an acquisition of the Company at $58 per share (the “May 20 Proposal”).

On May 23, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland, the Company’s financial advisor and legal counsel, respectively, to review the May 20 Proposal. Claes Glassell, a member of the Board of Directors, disclosed to the Board of Directors that he was an advisor for Permira and the chairman of one of Permira’s portfolio companies and, therefore, that he would recuse himself from future board discussions regarding a potential transaction with Permira. Morgan Stanley reviewed with the Board of Directors the May 20 Proposal, noting that Permira’s strategic rationale for acquiring the Company included using it as a platform for further acquisitions in the industry. Morgan Stanley also described its preliminary financial analysis of the Company. Following these discussions, the Board of Directors concluded that the May 20 Proposal did not take into account the full value of the Company but that the Company should allow Permira to conduct additional due diligence with the message that Permira would be expected to submit a higher proposal following such diligence. In light of the receipt of the May 20 Proposal, the Board of Directors, with the assistance of Morgan Stanley, also discussed the interest previously expressed by Party B in exploring a potential transaction involving the Company, the identities of other potential interested parties and whether the Company, with the assistance of Morgan Stanley, should conduct a broader outreach to additional parties. Following these discussions, taking into account the risks associated with such an outreach and the feedback received from certain third parties during the process conducted by the Company in early 2018, the Board of Directors determined that, as the next step, the Company should inform Party B that the Company had received interest from another party and again invite Party B to provide an indication of value for a potential transaction involving the Company. The Board of Directors further determined that the ad hoc committee, which had been formed in connection with the 2018 strategic review process, should assist the Board of Directors to manage any process arising from the May 20 Proposal under its prior delegation of authority.

On May 24, 2019, Mr. Klosk informed a representative of Party B that the Company had received an inbound offer for a strategic transaction and invited Party B to provide an indication of value for a potential transaction involving the Company if Party B so desired.

Also on May 24, 2019, at the direction of the Board of Directors, Morgan Stanley contacted Permira and invited Permira to conduct additional due diligence on the Company, with the expectation of Permira improving the May 20 Proposal.

In the weeks following May 24, 2019, the Company and its representatives provided due diligence information to Permira, including the Case B Projections, and Permira participated in a meeting with the Company’s management held at the offices of Kirkland on June 17, 2019.

On June 20, 2019, the Company received a revised indication of interest, subject to further diligence, from Permira for an acquisition of the Company at $61 per share (the “June 20 Proposal”).

On June 22, 2019, in response to a previous request from Party B for financial projections, consistent with the instructions of the Board of Directors, a representative of Morgan Stanley contacted a representative of Party B and indicated that the Company would provide its financial projections and schedule follow-up discussions to facilitate Party B’s evaluation of a potential transaction, with the expectation that Party B would respond shortly thereafter and submit an indication of interest. The representative of Party B indicated willingness to proceed under this approach.

On June 25, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland to review the June 20 Proposal. The Board of Directors reviewed and discussed with the Company’s management and Morgan Stanley in detail the two cases of Management Projections that are further described in the section of this proxy statement captioned “—Management

 

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Projections,” including their respective drivers and assumptions. Representatives of Kirkland reviewed with the Board of Directors its fiduciary duties and relevant legal considerations in the context of a potential strategic transaction. The Board then discussed different alternatives for conducting a market check in connection with a potential sale transaction, including reaching out to parties in addition to Permira and Party B in advance of signing or using a post-signing “go-shop” structure. The Board of Directors considered a number of factors in discussing what type of process to conduct, including (1) the business risk associated with involving strategic buyers and potential disclosure of confidential information to industry participants, (2) the risk that contacting additional potential bidders could increase the possibility of a leak and damage to the business, (3) the potential for increased management distraction and (4) the fact that the Company had conducted a strategic alternatives process previously and only Permira and Party B had approached the Company for a potential transaction since the conclusion of that process. In this context, the Board of Directors discussed with the Company’s management and advisors the identities of other parties which would likely be interested in pursuing a strategic transaction with the Company. Following extensive discussions, the Board of Directors determined that having pre-signing discussions only with Permira and Party B, followed by a post-signing go-shop process, was the right course of action under the circumstances. The Board of Directors then instructed Morgan Stanley to inform Permira that the Company was willing to provide it a short period of time for additional due diligence, with the expectation that Permira would submit a higher proposal thereafter.

Following June 25, 2019, Permira conducted additional due diligence on the Company, including multiple site visits, meetings and calls with the Company’s management.

On June 27, 2019, consistent with the instruction of the Board of Directors and at the direction of the ad hoc committee, representatives of Morgan Stanley provided the Case B Projections and certain other due diligence information to Party B.

On July 2, 2019, the Company held a management meeting with Party B, attended by both parties’ financial advisors, in which the Company’s management reviewed the Company’s strategic plans and discussed other due diligence questions with Party B.

On July 3, 2019, the ad hoc committee held a meeting attended by the Company’s management and representatives of Kirkland. Representatives of Kirkland reviewed with the ad hoc committee terms of the initial draft of the Merger Agreement that Kirkland had prepared for a potential transaction, which included a go-shop provision. The ad hoc committee then discussed the background of the interactions with Permira and the possibility of sending the Merger Agreement to Permira as a way to encourage Permira to put its best proposal forward. Following these discussions, the ad hoc committee instructed Morgan Stanley and Kirkland to send a draft Merger Agreement to Permira once the draft was finalized.

On July 8, 2019, Party B informed a representative of Morgan Stanley that, following further evaluation, it would not proceed to explore a strategic transaction with the Company, including in light of perceived integration risks associated with acquiring a business the size of the Company.

On July 9, 2019, Morgan Stanley sent the Kirkland draft Merger Agreement to Permira. Kirkland’s initial draft of the Merger Agreement contemplated, among other things, (1) a termination fee payable by the Company of 2% of the equity value of the Company in the event of entry by the Company into a superior proposal, among other fee triggers, and a termination fee of 0.75% of the equity value of the Company in the event of entry by the Company into a superior proposal with any bidder making a qualified proposal during the go-shop period, (2) a “reverse” termination fee payable by Parent of 7.5% of the equity value of the Company in the event Parent did not complete the transaction at the time it would otherwise be required to or the Merger Agreement were to be terminated based on other material breaches by Parent, and (3) a 60-day go-shop period, with the Cut-Off Time ending 15 days thereafter.

On July 18, 2019, Skadden, Arps, Slate, Meagher & Flom LLP (“Skadden”), legal counsel to Permira, held a telephonic discussion with Kirkland to convey Permira’s initial perspectives on the Kirkland draft of the Merger

 

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Agreement, noting, among other things, that Skadden’s markup would remove the “go-shop” provision in light of the process conducted previously and the ability of the Company to terminate the Merger Agreement for a superior proposal, seek a lower “reverse” termination fee and seek higher termination fees in the event of entry by the Company into a superior proposal.

Later on July 18, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland. Morgan Stanley reported to the Board of Directors its July 8, 2019 conversation with Party B in which Party B informed Morgan Stanley that it would not proceed to explore a strategic transaction with the Company. Kirkland reviewed with the Board of Directors the feedback it had received from Skadden on the draft Merger Agreement. The Board of Directors discussed potential next steps for evaluating the transaction with Permira, including reviewing financial analysis with Morgan Stanley and understanding the terms of any Merger Agreement markup and financing commitments proposed by Permira after its submission of a revised proposal.

On July 25, 2019, Permira contacted Morgan Stanley and indicated that based on findings in its additional due diligence on the Company, Permira was planning to lower its proposed per share price to between $55 and $58 per share from the previously proposed $61 per share.

Later on July 25, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland and discussed alternatives for responding to Permira’s proposal. Following discussion during which each of the Board members noted that they would be unwilling to engage in a transaction at the $55 to $58 price per share level Permira had indicated to Morgan Stanley, the Board of Directors determined to reconvene the following day after the revised written proposal had been received from Permira.

Subsequently on July 25, 2019, the Company received a revised indication of interest from Permira for an acquisition of the Company at a price level in line with the May 20 Proposal (the “June 25 Proposal”) and a markup of the Merger Agreement prepared by Skadden. Skadden’s markup of the Merger Agreement contemplated, among other things, (1) a termination fee payable by the Company of 4% of the equity value of the Company in the event of entry by the Company into a superior proposal, among other fee triggers, (2) a “reverse” termination fee payable by Parent of 4.5% of the equity value of the Company in the event Parent did not complete the transaction at the time it would otherwise be required to or the Merger Agreement were to be terminated based on other material breaches by Parent, and (3) no “go-shop” structure.

On July 26, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland to discuss the July 25 Proposal. Morgan Stanley reviewed with the Board of Directors the recent discussions with Permira, a summary of the most recent proposal from Permira and Morgan Stanley’s preliminary financial analysis of the Company. A representative of Kirkland discussed with the Board of Directors a memo which had been provided by Morgan Stanley describing Morgan Stanley’s prior relationships or engagements with Permira, which a representative of Kirkland also discussed with the Board at the August 6, 2019 meeting of the Board of Directors. At a meeting of the Board of Directors subsequent to the August 6 meeting, Morgan Stanley informed the Board of Directors that there was an error when determining the amount of aggregate fees paid to Morgan Stanley by Permira during the 30 prior months, and that the correct number for fees was approximately $34 million as opposed to approximately $11 million. The Board of Directors discussed the risks and opportunities facing the Company, including with respect to integration of its recent acquisitions and general execution risks, noting that an offer at the right price level would eliminate execution risk for the Company’s stockholders. Following discussions, the Board of Directors determined that the Company should not move forward at the $58 per share price level and instructed representatives of Kirkland to convey to Permira this message and inform Permira that, if Permira could not come to an agreement with the Company on price in relative short order, the Board of Directors would direct the Company’s management to focus exclusively on operating the business and executing on the Company’s strategic plan.

 

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Later on July 26, 2019, a representative of Kirkland and a representative of Morgan Stanley conveyed the message to representatives of Permira, as instructed by the Board of Directors and as described above. In response to this message, representatives of Permira indicated that they would reach out to Mr. Kaufthal for a follow-up discussion.

Later on July 26, the ad hoc committee held a meeting attended by Kirkland. Kirkland updated the ad hoc committee on its conversation with Permira’s representatives, noting that Permira was planning to reach out to Mr. Kaufthal for a follow-up discussion.

On July 27, 2019, Mr. Kaufthal held a discussion with a representative of Permira, during which the representative of Permira provided its rationale for reducing the proposed purchase price. Mr. Kaufthal reiterated the position that the Board of Directors would not engage in a transaction at the $58 per share price level. The representative of Permira and Mr. Kaufthal discussed a possible approach where Kirkland and Skadden would work to resolve the remaining issues in the Merger Agreement, after which Permira would seek to come back with a higher proposal.

On July 28, 2019, the ad hoc committee held a meeting attended by Kirkland. Mr. Kaufthal reported his conversation from July 27 with the representative of Permira to the other members of the ad hoc committee. Following discussion, the other members of the ad hoc committee expressed support for the approach outlined during Mr. Kaufthal’s July 27 discussion with the representative of Permira and directed Kirkland to engage with Skadden to seek to resolve the remaining issues in the Merger Agreement.

Subsequently on July 28, 2019, Kirkland and Skadden negotiated the issues raised in Skadden’s revised draft of the merger agreement, with the understanding that Skadden would discuss those issues with Permira and provide an updated markup of the Merger Agreement.

On July 29, 2019, a representative of Permira contacted Mr. Kaufthal and informed him that Permira would not raise its price above $58 per share.

Subsequently on July 30, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland. Mr. Kaufthal reviewed with the Board of Directors the Company’s and its advisors recent discussions with Permira. Mr. Kaufthal also noted that he had worked in consultation with the ad hoc committee to guide Permira to increase its proposal price, but that Permira had last informed Mr. Kaufthal that it would not raise its proposal price above $58 per share. The Board of Directors discussed Permira’s latest proposal, including in the context of the potential risks and opportunities facing the business. Following these discussions, the Board of Directors determined that it was not willing to proceed with Permira at the $58 per share level and instructed Kirkland to work with the Company to prepare and send a “return or destroy letter” under the terms of the Company’s confidentiality agreement with Permira as a way to terminate discussions with Permira. Later on July 30, 2019, the Company sent Permira a “return or destroy letter” requiring Permira to return or destroy all confidential information received from the Company.

On July 31, 2019, a representative of Morgan Stanley received an inbound inquiry from another financial sponsor, which we refer to as Party C, which inquired whether the Company was conducting a sale process. In light of the fact that the call from Party C was received after the Company’s delivery of the “return or destroy letter” to Permira to terminate the discussions, the representative of Morgan Stanley informed Party C that the Company was not conducting a process at that time.

On August 1, 2019, a representative of Permira contacted Mr. Kaufthal and informed him that, after further analysis, Permira was preparing to submit a revised written proposal of $60 per share.

Later on August 1, 2019, the Company received a revised proposal from Permira for an acquisition of the Company at a price of $60 per share (the “August 1 Proposal”) and a revised markup of the Merger Agreement

 

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prepared by Skadden. The August 1 Proposal indicated that Permira would be ready to execute a definitive agreement within a few days. Skadden’s revised markup of the Merger Agreement contemplated, among other things, (1) a termination fee payable by the Company of 3% of the equity value of the Company in the event of entry by the Company into a superior proposal, among other fee triggers, and a termination fee of 1.5% of the equity value of the Company in the event of entry by the Company into a superior proposal with any bidder making a qualified proposal during the go-shop period, (2) a “reverse” termination fee payable by Parent of 5% of the equity value of the Company in the event Parent did not complete the transaction at the time it would otherwise be required to or the Merger Agreement were to be terminated based on other material breaches by Parent, and (3) a 45-day go-shop period, with the Cut-Off Time ending 15 days thereafter.

On August 2, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland to review the August 1 Proposal. Mr. Kaufthal informed the Board of Directors of his conversation with Permira the day before. Representatives of Kirkland reviewed with the Board the material terms in Skadden’s revised markup of the Merger Agreement, noting that the draft contained a “go-shop” provision and a reduced termination fee associated therewith. Representatives of Morgan Stanley reviewed with the Board Morgan Stanley’s preliminary financial analysis of the Company and reported to the Board of Directors the inquiry it received from Party C on July 31, 2019, together with its response to Party C. The Board of Directors discussed the August 1 Proposal, the financial analysis presented by Morgan Stanley and the positions to take with respect to the material terms in the Merger Agreement. The Board of Directors also discussed whether and how to respond to Party C’s outreach in light of the value to the Company stockholders presented by the August 1 Proposal, the relatively short period of time within which a transaction with Permira could be entered into, and the “go-shop” process contemplated in Skadden’s revised markup of the Merger Agreement. Following these discussions, the Board determined that the Company and Kirkland should continue to work with Permira to progress towards a transaction with Permira in the coming days and that, in the event the Company entered into a transaction with Permira, Morgan Stanley should contact Party C promptly after the announcement and invite Party C to participate in the go-shop process.

Subsequently on August 2, 2019, representatives of Kirkland negotiated open points in the Merger Agreement with representatives of Skadden.

On August 3, 2019, Kirkland sent a revised draft of the Merger Agreement to Skadden. Kirkland’s revised draft of the Merger Agreement contemplated, among other things, (1) a termination fee payable by the Company of 3% of the equity value of the Company in the event of entry by the Company into a superior proposal, among other fee triggers, and a termination fee of 1% of the equity value of the Company in the event of entry by the Company into a superior proposal with any bidder making a qualified proposal during the go-shop period, (2) a “reverse” termination fee payable by Parent of 7% of the equity value of the Company in the event Parent did not complete the transaction at the time it would otherwise be required to consummate the transaction or the Merger Agreement were to be terminated based on other material breaches by Parent, and (3) a 45-day go-shop period, with the Cut-Off Time ending 30 days thereafter.

On August 4, 2019, Mr. Kaufthal and a representative of Permira negotiated final open points of the Merger Agreement, including with respect to the amount of the termination fees and reverse termination fee, the duration of the go-shop, and the scope of Parent’s matching right.

Later on August 4, 2019, Skadden sent a revised draft of the Merger Agreement to Kirkland. Skadden’s revised draft of the Merger Agreement reflected Mr. Kaufthal’s discussion with the representative of Permira and contemplated, among other things, (1) a termination fee payable by the Company of 3% of the equity value of the Company in the event of entry by the Company into a superior proposal, among other fee triggers, and a termination fee of 1.25% of the equity value of the Company in the event of entry by the Company into a superior proposal with any bidder making a qualified proposal during the go-shop period, (2) a “reverse” termination fee payable by Parent of 6% of the equity value of the Company in the event Parent did not complete the transaction at the time it would otherwise be required to consummate the transaction or the Merger

 

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Agreement were to be terminated based on other material breaches by Parent, (3) a 45-day go-shop period, with the Cut-Off Time ending 15 days thereafter, and (4) one matching right per alternative proposal in favor of Permira.

From August 4, 2019 to August 6, 2019, representatives of Kirkland and Skadden continued to negotiate the final terms of the Merger Agreement and related transaction documents, and the parties finalized the due diligence process.

On August 6, 2019, the Board of Directors held a meeting attended by the Company’s management and representatives of Morgan Stanley and Kirkland. A representative of Kirkland reviewed with the Board of Directors its fiduciary duties in the context of a potential transaction with Permira, provided an update on the status of the transaction documents and described the material terms of the latest drafts of the transaction documents. Morgan Stanley reviewed its financial analysis of the proposed transaction and rendered to the Board of Directors its oral opinion, subsequently confirmed in writing, to the effect that, as of August 6, 2019 and based upon and subject to the assumptions made, procedures followed, matters considered, and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in its written opinion, the merger consideration to be received by the holders of the common shares of the Company pursuant to the Merger Agreement other than holders of excluded shares, was fair, from a financial point of view, to such holders. For more information about Morgan Stanley’s opinion, see below under the caption “—Opinion of the Company’s Financial Advisor.”

After discussing potential factors in favor of and against the proposed transaction, and after reviewing the key terms of the Merger Agreement and the other transaction documents, the Board of Directors determined that the Merger Agreement and the Merger were fair to and in the best interests of the Company and its stockholders and declared it advisable for the Company to enter into the Merger Agreement. The Board of Directors approved the Merger Agreement and recommended that the Company’s stockholders vote to adopt the Merger Agreement at a meeting of stockholders to be called for the purposes of acting thereon. The Board of Directors then reviewed the go-shop process and determined that the ad hoc committee would assist the Board of Directors in managing the go-shop process.

Subsequent to the meeting of the Board of Directors, Kirkland and Skadden exchanged final drafts of the Merger Agreement and other transaction documents.

On August 7, 2019, the parties announced the execution of the Merger Agreement and the go-shop period commenced. On the same day, at the direction of the ad hoc committee, representatives of Morgan Stanley began contacting potential counterparties, including Party C, for an alternative transaction with the Company in connection with the go-shop period.

During the 45-day go-shop period, which expired at 12:01 a.m. New York City time on September 22, 2019, Morgan Stanley, at the direction of the ad hoc committee, engaged in solicitation of 77 potential bidders (comprising 31 strategic parties and 46 financial sponsors, including Parties A, B and C), which resulted in eight potential bidders each entering into a confidentiality agreement with the Company (including Party C). Neither Party A nor Party B elected to participate in the go-shop process. Each of the eight parties that entered into a confidentiality agreement with the Company was provided access to nonpublic information regarding the Company and the opportunity to have access to the Company’s management. Party C conducted an extensive due diligence review of the Company, including participating in multiple diligence discussions with the Company’s management. Following due diligence, Party C contacted Morgan Stanley on September 19, 2019 and indicated that it would not proceed to submit a proposal. As of the expiration of the go-shop period, the Company had not received any alternative acquisition proposals, including from any of the other seven parties that entered into confidentiality agreements. Upon the expiration of the go-shop period and in accordance with the terms of the Merger Agreement, the Company ceased all such activities and became subject to customary “no-shop” restrictions on its ability to solicit acquisition proposals from third parties or to provide information to and

 

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engage in discussions with a third party in relation to an alternative acquisition proposal, subject to certain customary exceptions, as described in the section of this proxy statement below captioned “Proposal 1: Adoption of the Merger Agreement—The ‘No-Shop’ Period—No Solicitation of Offers.”

Recommendation of the Board of Directors and Reasons for the Merger

Recommendation of the Board of Directors

After careful consideration, the Board of Directors: (i) determined that the Merger is fair to and in the best interests of the Company and its stockholders, and declared that it is advisable to enter into the Merger Agreement and consummate the Merger upon the terms and subject to the conditions set forth therein; (ii) approved the execution and delivery of the Merger Agreement and the Fee Funding Agreement by the Company, the performance by the Company of its covenants and other obligations thereunder, and the consummation of the Merger upon the terms and conditions set forth therein; (iii) to recommended that the Company’s stockholders adopt the Merger Agreement in accordance with the DGCL; and (iv) directed that the adoption of the Merger Agreement be submitted for consideration by the Company’s stockholders at the Special Meeting (the “Company Board Recommendation”).

The Board of Directors recommends that you vote: (1) “FOR” the adoption of the Merger Agreement; (2) “FOR,” on an advisory (non-binding) basis, the Compensation Proposal; and (3) “FOR” any Adjournment Proposal.

Due to his role as an advisor for Permira and the chairman of one of Permira’s portfolio companies, Mr. Claes Glassell recused himself from board discussions regarding the Merger and abstained from voting as a member of the Board of Directors to approve the Merger Agreement and the Merger.

Reasons for the Merger

In evaluating the Merger Agreement and the Merger contemplated thereby, the Board of Directors consulted with the Company’s management and legal and financial advisors. In the course of making the determination that the Merger Agreement and the Merger contemplated thereby are advisable, fair to and in the best interests of the Company and its stockholders and to recommend that stockholders adopt the Merger Agreement, the Board of Directors considered numerous factors, including the following material factors and benefits of the Merger:

 

   

Compelling Value. The Board of Directors believed that the Per Share Merger Consideration of $60.00 cash consideration provides stockholders with attractive and compelling value for their shares of Company Common Stock. The Board of Directors considered the current and historical market prices of Company common stock, including the market performance of the common stock, in light of current industry conditions, the competitive landscape, publicly available analyst expectations, and other factors. The Board of Directors noted that Per Share Merger Consideration of  $60.00 per share in cash represents a substantial premium to the Company’s stock price across various measurement dates, including a premium of 48% to the closing price of the Company Common Stock on August 5, 2019, the last trading day prior to the Board of Directors’ approval of the Merger Agreement, and 37% to the 60-day volume weighted average closing price ending on August 5, 2019. The Board of Directors noted that the aggregate merger consideration represents an implied multiple of 15.1x the Company’s 2019 estimated EBITDA based on the Case A Projections and 16.0x the Company’s 2019 estimated EBITDA based on the Case B Projections and the fact that these multiples compare favorably to EBITDA multiples in precedent transactions. The Board of Directors also noted that, based on a discounted cash flow analysis performed by Morgan Stanley, the Per Share Merger Consideration is well within the range of projected per share value projected by such analysis of $47-$63 (based on Case A Projections) and $54-$72 (based on Case B Projections).

 

   

Best Alternative for Maximizing Stockholder Value. The Board of Directors believed that the Per Share Merger Consideration was more favorable to the Company’s stockholders than the likely value that would

 

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result from other potential transactions or from remaining a standalone public company. This belief was based on, among other things, the Board of Directors’ assessment of:

 

   

the Company’s business and industry, financial condition, historical financial performance, competitive position and assets and prospects, as well as current industry, economic and market conditions and trends in the market in which the Company competes;

 

   

the prospects of the Company and management’s projections and strategic plan for the Company, taking into account the potential benefits, risks and uncertainties associated therewith, including risks associated with the expected decreasing sales of the Company’s largest product for an anti-viral drug to one of the Company’s significant customers, as previously disclosed in the Company’s public filings, the risks associated with integrating the Company’s two recent acquisitions, and general execution risks associated with achieving the Company’s ongoing business strategy;

 

   

the potential strategic alternatives reasonably available to the Company, including the results of the strategic alternatives process previously explored by the Company with the assistance of its financial advisor as described in the section of this proxy statement entitled “ —Background of the Merger,” and the directors’ assessment and management’s views of the industry landscape, industry participants and other potential interested acquirers;

 

   

that the Per Share Merger Consideration of $60.00 represents the high end of the range of prices derived from the LBO analysis conducted by Morgan Stanley based on the Case B Projections and the perspective that a key reason why Permira was willing to offer merger consideration of $60.00 per share to the Company’s stockholders was because of the strategic nature of the proposed transaction for Permira;

 

   

the course and history of competitive negotiations between the Company and Permira and the Board of Directors’ belief that it had obtained Permira’s best and final offer after multiple rounds of negotiations and consideration of the likelihood that any other party would be willing to acquire the Company at a higher price, with the understanding that the Company negotiated the ability in the Merger Agreement to seek such a higher price post-signing if an interested counterparty emerged;

 

   

the perspective that the Company’s stock price was not likely to trade at or above the Per Share Merger Consideration for any extended period in the foreseeable future based on a consideration of all of the factors enumerated above; and

 

   

the possibility of continuing to operate the Company as a standalone enterprise, the financial value of which was evaluated with the assistance of Morgan Stanley, based on the projections proposed by or at the direction of the Company, and determined to be less favorable to the Company’s stockholders than the Merger given the potential risks, rewards and uncertainties associated with remaining a standalone enterprise;

 

   

Financial Advisor Opinion. The Board of Directors considered the financial presentation and opinion, rendered by Morgan Stanley on August 6, 2019 to the Board of Directors, which was subsequently confirmed in writing, as to the fairness, from a financial point of view, to the holders of shares of Company Common Stock (other than shares of Company Common Stock held in treasury or held by Parent or any of its subsidiaries (including Merger Sub) or as to which dissenters’ rights have been perfected) of the $60.00 per share consideration to be received pursuant to the Merger Agreement, which opinion was based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanley’s written opinion, as further described under the heading “ —Opinion of the Company’s Financial Advisor”;

 

   

Right and Opportunity to Solicit and Receive Higher Offers and Alternative Proposals, to Terminate the Merger Agreement to Accept a Superior Proposal and to Change its Recommendation. The Board of Directors considered the Company’s rights under the Merger Agreement to solicit higher offers and alternative proposals during the go-shop period, and to consider, negotiate and accept certain higher offers

 

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and alternative proposals thereafter and the perspective that the terms of the Merger Agreement would be unlikely to deter interested third parties from making a superior proposal, including:

 

   

The Company’s right to solicit offers with respect to acquisition proposals during a 45-day go-shop period, and another 15-day period thereafter to negotiate with the Excluded Parties, and the Company’s right to terminate the merger agreement to enter into an agreement with respect to a superior proposal during such period, subject to Parent’s right to receive payment of a termination fee of $25,666,846;

 

   

The Company’s right, after the end of the go-shop period and prior to the time the Company’s stockholders approve the proposal to adopt the merger agreement, to respond to, and negotiate with respect to, certain unsolicited acquisition proposals and, subject to Parent’s right to receive payment of a termination fee of $61,600,430, to enter into a definitive agreement relating to a superior proposal in specified circumstances;

 

   

Parent’s ability to exercise only one matching right per acquisition proposal; and

 

   

The Board of Directors’ rights to change its recommendation to stockholders under certain other circumstances specified in the Merger Agreement.

 

   

Likelihood and Speed of Consummation. The Board of Directors considered the likelihood that the Merger would be completed by the end of the fourth quarter of 2019 based on, among other things:

 

   

the limited and otherwise customary conditions to consummation of the Merger, including the commitments made by Parent and Merger Sub to obtain all required regulatory approvals;

 

   

the fact that the regulatory clearances or termination of the waiting period, including under the HSR Act, is anticipated in a reasonable period;

 

   

the fact that Parent and Merger Sub had obtained debt and equity financing commitments for the Merger, the limited number and nature of the conditions to the debt and equity financings, the reputation of the financing sources and the obligation of Parent to use, and to cause its affiliates to use, their reasonable best efforts to obtain the Debt Financing, each of which, in the reasonable judgment of the Board of Directors, increases the likelihood of such financings being completed; and

 

   

the business reputation of Permira and the Permira Funds, including their available financial resources and track record of consummating proposed transactions.

 

   

Other Terms of the Merger Agreement. The Board of Directors considered other terms of the Merger Agreement, as more fully described in this section of this proxy statement (captioned “The Merger”) and the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement.” Certain provisions of the Merger Agreement that the Board of Directors considered important included:

 

   

Specific Performance and Monetary Damages. If Parent breaches the Merger Agreement or fails to complete the Merger when required to do so, the Company will be entitled, subject to the limitations and conditions in the Merger Agreement, to seek specific performance or monetary damages. In the event the transactions contemplated by the Merger Agreement are not consummated in certain circumstances, Parent will be required to pay the Company a termination fee of $123,200,859 for such failure to consummate the Merger. The Permira Funds are obligated to fund such obligation pursuant to the Fee Funding Agreement; and

 

   

Appraisal Rights. Appraisal rights under the DGCL will be available to the stockholders of the Company who do not vote in favor of adoption of the Merger Agreement and who properly demand appraisal of their shares of Company Common Stock and comply with the required procedures under the DGCL to perfect their appraisal rights, including the fact that such stockholders will have the right to demand appraisal and payment of the “fair value” of their shares of Company Common Stock as determined by the Delaware Court of Chancery (see “—Appraisal Rights”).

 

   

Negotiation of Merger Agreement. The Board of Directors and the ad hoc committee considered the fact that the Merger Agreement was negotiated extensively at arm’s length with Permira.

 

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In the course of their deliberations, the Board of Directors also considered various risks and other countervailing factors related to entering into the Merger Agreement, including:

 

   

Risk of Non-Consummation. The Board of Directors considered the possibility that the Merger might not be consummated and that (a) the price of the Company Common Stock would likely decrease since the current market price may reflect a market assumption that the Merger will be consummated and (b) the Company, in certain circumstances, may be required to pay Parent a termination fee of $61,600,430 million (or $25,666,846 in the event of entry by the Company into an alternative superior proposal with any bidder making a qualified proposal during the go-shop period);

 

   

Future Growth. The Board of Directors considered the fact that, subsequent to the completion of the Merger, the Company would no longer exist as an independent public company and that stockholders will have no ongoing equity interest in the Surviving Corporation and cease to participate in any future earnings or growth or to benefit from any potential future appreciation in value of the Company;

 

   

Transaction Costs. The Board of Directors considered the fact that the Company has incurred and will continue to incur transaction costs and expenses in connection with the Merger, regardless of whether consummated, and the fact that the Company’s directors, senior management and other employees will have expended extensive time and effort and will have experienced significant distractions from their work during the pendency of the Merger;

 

   

Possible Disruption of Business. The Board of Directors considered the possible disruption and effects of the public announcement of the Merger, including effects on the Company’s sales, employees, customers, operating results and the Company’s ability to attract and retain key management, sales and marketing personnel during the pendency of the Merger;

 

   

Regulatory Approval and Risk of Other Events. The Board of Directors considered the fact that completion of the Merger would require regulatory clearances and approvals and the satisfaction of certain other closing conditions, including that no Company Material Adverse Effect has occurred, that are not entirely within the Company’s control, and that there is no order or legal restraint preventing the consummation of the Merger.

 

   

Financing Failure. The Board of Directors considered the risk that the Merger might not be completed due to failure of Parent to obtain the Debt Financing required for the Merger, including the fact that the obligation of the Permira Funds to fund the equity commitment is subject to the receipt of debt financing;

 

   

Business Restrictions. The Board of Directors considered the restrictions on the conduct of the Company’s business prior to the consummation of the Merger, the requirement that the Company conduct its business in the ordinary course, subject to specific limitations, which may delay or prevent the Company from undertaking business opportunities that may arise before the completion of the Merger and that, absent the Merger Agreement, the Company might have pursued; and

 

   

Parent and Merger Sub. The Board of Directors considered the fact that Parent and Merger Sub are newly formed corporations with no assets other than the the Equity Commitment Letter and the Fee Funding Agreement and that the Company’s monetary remedy in the event of breach of the Merger Agreement by Parent or Merger Sub is capped at an amount equal to the Parent Termination Fee of $123,200,859, plus, if applicable, any Reimbursement Obligations.

The foregoing discussion of reasons for the Board of Directors’ determination that the Merger Agreement and the transactions contemplated thereby, including the Merger, are advisable, fair to and in the best interest of the Company and its stockholders and to recommend that stockholders adopt the Merger Agreement is not meant to be exhaustive but addresses the principal information and factors considered by the Board of Directors. In view of the wide variety of factors considered by the Board of Directors in connection with its evaluation of the Merger and the complexity of these matters, the Board of Directors did not find it practicable to, and did not, quantify or otherwise assign relative weights to the specific factors considered in reaching its determination and recommendation. Rather, in considering the information and factors described above, individual members of the Board of Directors each applied his or her own personal business judgment to the process and may have given

 

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differing weights to differing factors. The Board of Directors collectively reached the conclusion to approve the Merger, based on the totality of the information presented. The explanation of the factors and reasoning set forth above contain forward-looking statements that should be read in conjunction with the section of this proxy statement captioned “Forward-Looking Statements.”

In considering the recommendation of the Board of Directors that stockholders vote in favor of adoption of the Merger Agreement, stockholders of the Company should be aware that the Company’s directors and executive officers may have interests in the Merger that are different from, or in addition to, other stockholders. The Board of Directors were aware of and considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and the Merger. For more information on these interests see the section of the proxy statement captioned “—Interests of the Company’s Directors and Executive Officers in the Merger.”

Management Projections

The Company’s management prepared certain non-public financial projections as to the potential future performance of the Company for the calendar years 2019 through 2024. The Case A projections (the “Case A Projections”) were developed by the Company’s management as part of the Company’s annual strategic planning process during the first half of 2019 and were presented to the Board of Directors on May 23, 2019 and then again on June 25, 2019. The Case B projections (“Case B Projections”) were developed by the Company’s executive management in connection with the strategic process described in this proxy statement, reflecting certain assumptions different from the Case A Projections as described below, and were presented to the Board of Directors on June 25, 2019. Both the Case A Projections and the Case B Projections were used by the Board of Directors in connection with its consideration of the Merger and were used by Morgan Stanley in connection with its financial analyses of the transaction and its fairness opinion delivered to the Board of Directors. Only the Case B Projections were provided to Permira to assist with its due diligence review. The Case A Projections and the Case B Projections are collectively referenced herein as the “Management Projections.”

Case A Projections

 

     2019E     2020E     2021E     2022E     2023E     2024E  

Net Revenue

     677       695       789       876       974       1,023  

Adj. EBITDA(1)

     166       165       205       238       278       301  

Capex

     (66     (88     (100     (80     (79     (64

Unlevered Free Cash Flow(2)

     57       14       57       109       132       160  

 

(1)

Adjusted EBITDA is earnings before interest expense, income taxes, depreciation and amortization, facility closure expenses, acquisition and integration expenses and purchase accounting charges related to acquisitions.

(2)

Unlevered free cash flow means Adjusted EBITDA, less (i) GAAP taxes, (ii) capital expenditures and (iii) change in net working capital.

In the Case A Projections, net revenue is projected to grow at a compounded annual growth rate (“CAGR”) of 8.6% from 2019 to 2024 based on the forecasts of each business segment as follows: (a) the net revenue of the Drug Substance segment is projected to grow at a CAGR of 6.5% from 2019 to 2024; (b) the net revenue of the Drug Product segment is projected to grow at a CAGR of 11.2% from 2019 to 2024, and (c) the net revenue of the Early Stage Development & Testing segment is projected to grow at a CAGR of 13.6% from 2019 to 2024.

In the Case A Projections, the Adjusted EBITDA is projected to grow at a CAGR of 12.7% from 2019 to 2024 based on the following assumptions: (A) consolidated gross margins growing in the range of mid-30%; and (B) consolidated operating expenses increasing by 3.5% annually.

Finally, the Case A Projections assume that the total capital expenditure from 2019 to 2024 will be in the amount of approximately $480 million.

 

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Case B Projections

 

     2019E     2020E     2021E     2022E     2023E     2024E  

Net Revenue

     668       695       789       876       974       1,023  

Adj. EBITDA(1)

     157       166       207       248       292       315  

Capex

     (66     (79     (96     (72     (73     (55

Unlevered Free Cash Flow(2)

     57       23       63       123       149       180  

 

(1)

Adjusted EBITDA is earnings before interest expense, income taxes, depreciation and amortization, facility closure expenses, acquisition and integration expenses and purchase accounting charges related to acquisitions.

(2)

Unlevered free cash flow means Adjusted EBITDA, less (i) GAAP taxes, (ii) capital expenditures and (iii) change in net working capital.

In the Case B Projections, net revenue is projected to grow at a CAGR of 8.9% from 2019 to 2024 based on the forecasts of each business segment as follows: (a) the net revenue of the Drug Substance segment is projected to grow at a CAGR of 6.5% from 2019 to 2024; (b) the net revenue of the Drug Product segment is projected to grow at a CAGR of 11.8% from 2019 to 2024, and (c) the net revenue of the Early Stage Development & Testing segment is projected to grow at a CAGR of 14.8% from 2019 to 2024.

In the Case B Projections, the Adjusted EBITDA is projected to grow at a CAGR of 15% from 2019 to 2024 based on the following assumptions: (A) consolidated gross margins growing in the range of mid-30%; and (B) consolidated operating expenses increasing by 3.3% annually.

Finally, the Case B Projections assume that the total capital expenditure from 2019 to 2024 will be in the amount of approximately $440 million.

The Management Projections were developed by the Company’s management without giving effect to the Merger or the other transactions contemplated by the Merger Agreement or any changes to the Company’s operations or strategy that may be implemented after the consummation of the Merger, including any costs incurred in connection with the Merger or costs related to other transactions contemplated by the Merger Agreement. Furthermore, the Management Projections do not take into account the effect of any failure of the transactions contemplated by the Merger Agreement to be completed and should not be viewed as accurate or continuing in that context.

While the Company has from time to time provided full-year financial guidance in its regular earnings press releases and other investor materials, the Company’s management team has not, as a matter of course, otherwise publicly disclosed internal projections as to future performance, earnings or other results due to the unpredictability of the underlying assumptions and estimates. The Management Projections are included herein because (1) they were made available to Morgan Stanley by the Company’s management and were approved by the Board of Directors for use in connection with its financial analysis as described in the section of this proxy statement captioned “—Opinion of the Company’s Financial Advisor,” (2) they were made available to the Board of Directors in connection with its consideration of the Merger and other strategic alternatives available to the Company, and (3) Case B Projections were made available to Permira in connection with its due diligence review. The Management Projections were not prepared with a view toward public disclosure or with a view toward complying with the published guidelines of the SEC regarding projections or accounting principles generally accepted in the United States (“GAAP”), or the guidelines established by the American Institute of Certified Public Accountants with respect to prospective financial information. In the view of the Company’s management, the Management Projections have been reasonably prepared by the Company’s management on bases reflecting the best available information at the time of preparation and judgments of the Company’s management of the future financial performance of the Company and other matters covered thereby. However, the information contained in the Management Projections is not fact and should not be relied upon as being necessarily indicative of future results.

 

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Although the Management Projections are presented with numerical specificity, they reflect numerous estimates and assumptions made by the Company’s management with respect to industry performance, general business, economic, regulatory, market and financial conditions and other future events, as well as matters specific to the Company’s business, all of which are difficult or impossible to predict accurately and many of which are beyond the Company’s control. The Management Projections reflect subjective judgment in many respects and thus are susceptible to multiple interpretations and periodic revisions based on actual experience and business developments. As such, the Management Projections constitute forward-looking information and are subject to many risks and uncertainties that could cause actual results to differ materially from the results forecasted in the Management Projections, including, but not limited to, the Company’s performance, industry performance, general business and economic conditions, customer requirements, staffing levels, competition, adverse changes in applicable laws, regulations or rules, and the various risks set forth in the Company’s reports filed with the SEC. There can be no assurance that the Management Projections will be realized or that actual results will not be significantly higher or lower than forecast. The Management Projections cover several years and such information by its nature becomes less reliable with each successive year. In addition, the Management Projections will be affected by the Company’s ability to achieve strategic goals, objectives and targets over the applicable periods. The Management Projections reflect assumptions as to certain business decisions that are subject to change. The Management Projections cannot, therefore, be considered a guarantee of future operating results, and this information should not be relied on as such. The inclusion of the Management Projections should not be regarded as an indication that the Company, Morgan Stanley, their respective officers, directors, affiliates, advisors, or other representatives or anyone who received this information then considered, or now considers, them a reliable prediction of future events, and this information should not be relied upon as such. The inclusion of the Management Projections herein should not be deemed an admission or representation by the Company that the Company views such Management Projections as material information. The inclusion of the Management Projections in this proxy statement should not be regarded as an indication that the Management Projections will be necessarily predictive of actual future events. No representation is made by the Company or any other person regarding the Management Projections or the Company’s ultimate performance compared to such information. The Management Projections should be evaluated, if at all, in conjunction with the historical consolidated financial statements and other information contained in the Company public filings with the SEC. For more information, please see the section of this proxy statement captioned “Where You Can Find More Information.” In light of the foregoing factors, and the uncertainties inherent in the Management Projections, stockholders are cautioned not to place undue, if any, reliance on the Management Projections.

Neither the Company’s independent auditor nor any other independent accountant has compiled, examined, or performed any procedures with respect to the Management Projections, nor have they expressed any opinion or any other form of assurance on such information or its achievability.

Adjusted EBITDA, Capex and Unlevered Free Cash Flow contained in the Management Projections set forth above, are “non-GAAP financial measures,” which are financial performance measures that are not calculated in accordance with GAAP. These non-GAAP financial measures should not be viewed as a substitute for GAAP financial measures, and may be different from non-GAAP financial measures used by other companies. Furthermore, there are limitations inherent in non-GAAP financial measures because they exclude charges and credits that are required to be included in a GAAP presentation. Accordingly, these non-GAAP financial measures should be considered together with, and not as an alternative to, financial measures prepared in accordance with GAAP. The summary of such information above is included solely to give stockholders access to the information that was made available to Morgan Stanley, the Board of Directors and Permira, and is not included in this proxy statement in order to influence any stockholder to make any investment decision with respect to the Merger, including whether or not to seek appraisal rights with respect to the Company Common Stock.

In addition, the Management Projections have not been updated or revised to reflect information or results after the date they were prepared or as of the date of this proxy statement, and except as required by applicable securities laws, the Company does not intend to update or otherwise revise the Management Projections or the

 

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specific portions presented to reflect circumstances existing after the date when made or to reflect the occurrence of future events, even in the event that any or all of the underlying assumptions are shown to be in error.

Opinion of the Company’s Financial Advisor

Morgan Stanley was retained by the Board of Directors to act as its financial advisor in connection with a potential sale of the Company. The Board of Directors selected Morgan Stanley to act as its financial advisor based on Morgan Stanley’s qualifications, expertise and reputation, its knowledge of and involvement in recent transactions in the Company’s industry and its knowledge and understanding of the business and affairs of the Company. On August 6, 2019, Morgan Stanley rendered its oral opinion, which was subsequently confirmed in writing, to the Board of Directors to the effect that, as of that date, and based upon and subject to the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of review undertaken by Morgan Stanley as set forth in Morgan Stanley’s written opinion, the Per Share Merger Consideration to be received by the holders of Company Common Stock, other than holders of the Excluded Shares, pursuant to the Merger Agreement was fair, from a financial point of view, to such holders of the Company Common Stock.

The full text of the written opinion of Morgan Stanley delivered to the Board of Directors, dated August 6, 2019, is attached as Annex B and incorporated by reference into this proxy statement in its entirety. The opinion sets forth, among other things, the assumptions made, procedures followed, matters considered and qualifications and limitations on the scope of the review undertaken by Morgan Stanley in rendering its opinion. The Company’s stockholders are urged to, and should, read the opinion carefully and in its entirety. Morgan Stanley’s opinion is directed to the Board of Directors and addresses only the fairness, from a financial point of view, of the Per Share Merger Consideration to be paid to the holders of Company Common Stock, other than holders of the Excluded Shares, pursuant to the Merger Agreement. Morgan Stanley’s opinion did not address any other aspect of the transactions contemplated by the Merger Agreement and did not address any other aspects or implications of the Merger. Morgan Stanley’s opinion was not intended to, and does not constitute advice or a recommendation as to how the Company’s stockholders should vote at any stockholders’ meeting to be held in connection with the Merger or to take any other action with respect to the Merger. The summary of Morgan Stanley’s opinion set forth in this proxy statement is qualified in its entirety by reference to the full text of Morgan Stanley’s opinion.

For purposes of rendering its opinion, Morgan Stanley, among other things:

 

   

reviewed certain publicly available financial statements and other business and financial information of the Company;

 

   

reviewed certain internal financial statements and other financial and operating data concerning the Company;

 

   

reviewed certain financial projections prepared by the management of the Company as further described in the section of this proxy statement captioned “—Management Projections”;

 

   

discussed the past and current operations and financial condition and the prospects of the Company with senior executives of the Company;

 

   

reviewed the reported prices and trading activity for the Company Common Stock;

 

   

compared the financial performance of the Company and the prices and trading activity of the Company Common Stock with that of certain other publicly traded companies comparable with the Company, and their securities;

 

   

reviewed the financial terms, to the extent publicly available, of certain comparable acquisition transactions;

 

   

participated in certain discussions and negotiations among representatives of the Company and Permira and their financial and legal advisors;

 

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reviewed the Merger Agreement, the draft commitment letter from certain lenders substantially in the form as of August 6, 2019 and the draft equity commitment letter among the Permira Funds, Parent and Merger Sub and the other parties thereto substantially in the form as of August 4, 2019 (the “Commitment Letters”) and certain related documents; and

 

   

performed such other analyses, reviewed such other information and considered such other factors as Morgan Stanley deemed appropriate.

In arriving at its opinion, Morgan Stanley assumed and relied upon, without independent verification, the accuracy and completeness of the information that was publicly available or supplied or otherwise made available to Morgan Stanley by the Company, and formed a substantial basis for Morgan Stanley’s opinion. With respect to the financial projections, Morgan Stanley assumed that they had been reasonably prepared on bases reflecting the then best currently available estimates and judgments of the management of the Company of the future financial performance of the Company. Morgan Stanley expressed no view as to such financial projections nor the assumptions on which they were based. In addition, Morgan Stanley assumed that the Merger will be consummated in accordance with the terms set forth in the Merger Agreement without any waiver, amendment or delay of any terms or conditions, including, among other things, that Parent and Merger Sub will obtain financing in accordance with the terms set forth in the Commitment Letters and that the definitive Merger Agreement would not differ in any material respects from the draft thereof furnished to Morgan Stanley. Morgan Stanley assumed that in connection with the receipt of all the necessary governmental, regulatory or other approvals and consents required for the Merger, no delays, limitations, conditions or restrictions will be imposed that would have a material adverse effect on the contemplated benefits expected to be derived in the Merger. Morgan Stanley did not express any view on, and its opinion did not address, any term or aspect of the Merger Agreement or the transactions contemplated thereby or any term or aspect of any other agreement or instrument contemplated by the Merger Agreement or entered into or amended in connection therewith, other than with respect to the fairness from a financial point of view of the consideration to be received by the holders of the Company Common Stock (other than the holders of the Excluded Shares) pursuant to the Merger Agreement. Morgan Stanley is not a legal, tax or regulatory advisor. Morgan Stanley is a financial advisor only and relied upon, without independent verification, the assessment of the Company and its legal, tax and regulatory advisors with respect to legal, tax and regulatory matters. Morgan Stanley expressed no opinion with respect to the fairness of the amount or nature of the compensation to any of the Company’s officers, directors or employees, or any class of such persons, relative to the Per Share Merger Consideration to be received by the holders of Company Common Stock (other than Excluded Shares) in the Merger. Morgan Stanley did not make any independent valuation or appraisal of the assets or liabilities of the Company, nor was Morgan Stanley furnished with any such valuations or appraisals. Morgan Stanley’s opinion was necessarily based on financial, economic, market and other conditions as in effect on, and the information made available to Morgan Stanley as of August 6, 2019. Events occurring after such date may affect Morgan Stanley’s opinion and the assumptions used in preparing it, and Morgan Stanley did not assume any obligation to update, revise or reaffirm its opinion. Morgan Stanley’s opinion did not address the relative merits of the transactions contemplated by the Merger Agreement as compared to other business or financial strategies that might have been available to the Company, nor did it address the underlying business decision of the Company to enter into the Merger Agreement or proceed with any other transaction contemplated by the Merger Agreement.

Summary of Financial Analyses

The following is a summary of the material financial analyses performed by Morgan Stanley in connection with the preparation of its opinion to the Board of Directors. The following summary is not a complete description of Morgan Stanley’s opinion or the financial analyses performed and factors considered by Morgan Stanley in connection with its opinion, nor does the order of analyses described represent the relative importance or weight given to those analyses. The financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses used by Morgan Stanley, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial

 

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analyses. The analyses listed in the tables and described below must be considered as a whole; considering any portion of such analyses and of the factors, without considering all analyses and factors, could create a misleading or incomplete view of the process underlying Morgan Stanley’s opinion. Except as otherwise noted, the following quantitative information, to the extent that it is based on market data, is based on market data as it existed on or before August 5, 2019, which was the last full trading day prior to the meeting of the Board of Directors to approve and adopt the Merger Agreement and the transactions contemplated thereby, declare the advisability of the Merger Agreement and approve the transactions contemplated thereby, including the Merger, and is not necessarily indicative of current market conditions.

In performing the financial analysis summarized below and arriving at its opinion, Morgan Stanley used and relied upon the Case A Projections and the Case B Projections provided by the Company’s management and referred to in this proxy statement (and defined in the section captioned “—Management Projections”).

Public Trading Comparable Companies Analysis

Morgan Stanley performed a public trading comparable companies analysis, which attempts to provide an implied value of a company by comparing it to similar companies that are publicly traded. Morgan Stanley reviewed and compared certain financial estimates for the Company with comparable publicly available equity analyst research estimates for certain selected companies (the “Comparable Companies”) that Morgan Stanley determined, upon the application of its professional judgment and experience with companies in the CDMO industry, to be similar to the Company’s current and anticipated operations for purposes of this analysis. The following list sets forth the Comparable Companies that were reviewed in connection with this analysis:

 

   

Consort Medical plc

 

   

Recipharm Limited

 

   

Siegfried Group

For purposes of this analysis, Morgan Stanley analyzed:

 

   

the ratio of aggregate value (“AV”) (calculated as fully diluted market capitalization plus debt, preferred equity and non-controlling interest (as applicable) less cash, cash equivalents and marketable securities) to estimated Adjusted EBITDA (calculated as net income excluding net interest expense, income tax expense and certain other non-cash and non-recurring items, principally depreciation and amortization, burdened by stock-based compensation, and, for the Company, excluding integration costs for Halo and Avista) (the “AV / EBITDA Ratio”), for each of calendar year 2019 and calendar year 2020. For purposes of this analysis of the Comparable Companies, Morgan Stanley utilized publicly available market data of EBITDA as of August 5, 2019.

Results of the analysis were presented for the Comparable Companies, as indicated in the following tables:

AV / EBITDA Ratios:

 

     CY2019E AV /
EBITDA
     CY2020E AV /
EBITDA
 

Consort Medical plc

     8.2x        7.9x  

Recipharm Limited

     9.9x        8.9x  

Siegfried Group

     13.2x        11.8x  

Based on its analysis of the relevant metrics for each of the Comparable Companies and upon the application of its professional judgment, Morgan Stanley selected representative ranges of the AV / EBITDA Ratio for each of the calendar years 2019 and 2020 and applied these ranges of multiples to the corresponding Company statistic as set forth in the Case A Projections and Case B Projections. Based on the outstanding shares of Company

 

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Common Stock on a fully diluted basis of 34 million shares as of August 5, 2019 calculated using the treasury stock method and net debt of $448 million as of June 30, 2019, in each case per Company management, Morgan Stanley calculated an estimated implied value per share of Company Common Stock, rounded to the nearest $1.00, as follows:

 

     Selected Comparable
Company
Multiple Ranges
     Implied Value
Per Share
 

Case A Projections

     

CY2019E AV / EBITDA

     8.5x – 13.0x      $ 28.00 – $50.00  

CY2020E AV / EBITDA

     8.0x – 12.0x      $ 26.00 – $45.00  

Case B Projections

     

CY2019E AV / EBITDA

     8.5x – 13.0x      $ 26.00 – $47.00  

CY2020E AV / EBITDA

     8.0x – 12.0x      $ 26.00 – $46.00  

No company utilized in the public trading comparable companies analysis is identical to the Company and hence the foregoing summary and underlying financial analyses involved complex considerations and judgments concerning differences in financial and operating characteristics and other factors that could affect the public trading or other values of the companies to which the Company was compared. In evaluating comparable companies, Morgan Stanley made judgments and assumptions with regard to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of the Company, such as the impact of competition on the business of the Company and the industry generally, industry growth and the absence of any adverse material change in the financial condition and prospects of the Company or the industry or in the financial markets in general. Mathematical analysis is not in itself a meaningful method of using selected company data.

 

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Precedent Transactions Analysis

Precedent Multiples Analysis:

Morgan Stanley performed a precedent transactions analysis, which implies a value of a company based on publicly available financial terms of selected transactions. Morgan Stanley compared publicly available statistics for transactions involving businesses that Morgan Stanley judged to be similar in certain respects to the Company’s business or aspects thereof based on Morgan Stanley’s professional judgment and experience, occurring since January 2007. Morgan Stanley selected such comparable transactions because they shared certain characteristics with the Merger, most notably because they were in the CDMO industry and each had a transaction AV of at least $200 million. For each transaction, Morgan Stanley noted the ratio of the AV of the transaction to each of the target company’s EBITDA for the twelve-month period prior to the announcement date of the applicable transaction (“LTM EBITDA,” and the ratio of AV to LTM EBITDA, the “AV / LTM EBITDA Ratio”). The following is a list of the transactions reviewed, based on the abovementioned criteria, and the AV / LTM EBITDA ratio for each transaction:

 

Date Announced

 

Acquirer

 

Target

  AV / LTM EBITDA  

January 25, 2007

  The Blackstone Group   Cardinal Health PTS (Catalent)     10.3x  

April 4, 2011

  Kohlberg Kravis Roberts & Co L.P.   Capsugel S.A.     10.9x  

May 9, 2011

  Alkermes plc   Elan Drug Technologies     9.8x  

August 22, 2011

  Catalent Pharma Solutions, Inc.   Aptuit LLC, Clinical Trial Supplies Business     10.3x  

August 6, 2012

  BC Partners, The Carlyle Group L.P.   Aenova     11.2x  

December 24, 2012

  Mitsubishi Chemical Holdings   Qualicaps     10.3x  

July 29, 2013

  RoundTable Healthcare Partners   Santa Cruz Nutritionals     10.5x  

October 2, 2013

  Nordic Capital / Avista Capital Partners / Ardian   Acino Holding AG     11.8x  

July 28, 2014

  PCI Pharma Services   Penn Pharmaceutical Services Limited     16.2x  

September 30, 2014

  Consort Medical plc   Aesica Pharmaceuticals Limited     11.5x  

May 5, 2015

  AMRI Global   Prime European Therapeuticals S.p.A.     13.3x  

June 1, 2016

  Partners Group   PCI Pharma Services     ~10.5x  

December 15, 2016

  Lonza Group AG   Capsugel S.A.     15.1x  

May 15, 2017

  Thermo Fisher Scientific Inc.   Pantheon N.V.     17.3x  

June 6, 2017

  GTCR, LLC, The Carlyle Group L.P.   Albany Molecular Research, Inc.     13.6x  

July 23, 2018

  Cambrex Corporation   Halo Pharmaceutical, Inc.     15.7x  

November 20, 2018

  Cambrex Corporation   Avista Pharma Solutions, Inc.     16.8x  

Based on its analysis of the relevant metrics for each of the comparable transactions and upon the application of its professional judgment, Morgan Stanley then selected representative ranges of the AV / LTM EBITDA Ratio multiples and applied an AV / LTM EBITDA range of 10.0x – 16.0x to the Company’s projected LTM EBITDA as of June 30, 2019 of $153 million, burdened by stock based compensation expenses and excluding integration costs for Halo and Avista, as provided by the Company’s management.

Based on the outstanding shares of Company Common Stock on a fully diluted basis of 34 million shares as of August 5, 2019 calculated using the treasury stock method and net debt of $448 million as of June 30, 2019, in each case per Company management, Morgan Stanley calculated an estimated implied present value per share of Company Common Stock, rounded to the nearest $1.00, of $32.00 to $59.00.

 

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Precedent Premiums Paid Analysis:

Morgan Stanley considered, based on publicly available information, premiums paid in bids for control of U.S. public targets with an aggregate value of $1.0 billion or more announced on or before March 31, 2019 involving all cash, all stock and cash/stock mix consideration, but excluding outliers, terminated transactions, ESOPs, self-tenders, spin-offs, share repurchases, minority interest transactions, exchange offers, recapitalizations and restructurings. For each transaction, Morgan Stanley reviewed the percentage premiums paid over the unaffected stock price, defined to mean the stock price four weeks prior to the earliest of deal announcement, announcement of a competing bid and market rumors.

Based on the review of the premiums paid in the selected transactions summarized above, Morgan Stanley then selected a representative range of premiums paid and applied that range to the applicable price per share of Company Common Stock as of August 5, 2019, to calculate an implied value per share of Company Common Stock, rounded to the nearest $1.00, as follows:

 

     Premia Range        Implied Present Value
Per Share
 

Precedent Premiums

     20% – 45%        $ 49.00 – $59.00  

No company or transaction utilized in the precedent transactions analysis is identical to the Company or the Merger. In evaluating the precedent transactions, Morgan Stanley made numerous assumptions with respect to industry performance, general business, regulatory, economic, market and financial conditions and other matters, many of which are beyond the Company’s control. These include, among other things, the impact of competition on the Company’s business and the industry generally, industry growth, and the absence of any adverse material change in the financial condition and prospects of the Company and the industry, and in the financial markets in general, which could affect the public trading value of the companies and the aggregate value and equity value of the transactions to which they are being compared.

Discounted Cash Flow Analysis

Morgan Stanley performed a discounted cash flow analysis, which is designed to provide an implied value of an asset using estimates of the future unlevered free cash flows generated by the asset, taking into consideration the time value of money with respect to those future cash flows by calculating their “present value.” The “unlevered free cash flows” refers to a calculation of the future cash flows generated by an asset without including in such calculation any debt servicing costs. “Present value” refers to the current value of the future cash flows generated by the asset, and is obtained by discounting those cash flows back to the present using a discount rate that takes into account macro-economic assumptions and estimates of risk, the opportunity cost of capital and other appropriate factors. “Terminal value” refers to the present value of all future cash flows generated by the asset for periods beyond the projection period.

Morgan Stanley used estimates from the Management Projections for purposes of the discounted cash flow analysis, as more fully described below. Morgan Stanley first calculated the estimated unlevered free cash flows, which is defined as adjusted earnings before interest, taxes, depreciation and amortization, less (1) cash taxes and (2) capital expenditures, and less or plus, as applicable, (3) changes in net working capital. Morgan Stanley calculated the present value of the estimated unlevered free cash flows for the Company for the last two quarters of 2019 and calendar years 2020 through 2024. Morgan Stanley also calculated a range of terminal values for the Company by applying a perpetual growth rate ranging from 2.0% to 2.5% to the normalized unlevered free cash flows of the Company for calendar year 2024. Morgan Stanley selected this perpetual growth rate range based on the application of Morgan Stanley’s professional judgment and experience. The estimated unlevered free cash flows and the range of terminal values were then discounted to present values as of June 30, 2019 using a range of discount rates from 7.5% to 8.4%, which range of discount rates were selected, upon the application of Morgan Stanley’s professional judgment and experience, to reflect the Company’s estimated weighted average cost of capital (“WACC”).

 

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Based on the above-described analysis, Morgan Stanley derived the following ranges of implied values per share of Company Common Stock, rounded to the nearest $1.00:

 

     Implied Value
Per Share Range
 

Case A Projections

   $ 47.00 – $63.00  

Case B Projections

   $ 54.00 – $72.00  

Other Information

Morgan Stanley observed additional factors that were not considered part of Morgan Stanley’s financial analysis with respect to its opinion, but which were noted as reference data for the Board of Directors, including the following.

Illustrative Leveraged Buyout Analysis

For reference only, and not as a component of its fairness analysis, Morgan Stanley performed a hypothetical leveraged buyout analysis to determine the prices at which a financial sponsor might affect a leveraged buyout of the Company under current market conditions. Morgan Stanley based its analysis on the Management Projections. Morgan Stanley assumed a transaction date of June 30, 2019, and a 5.5 year investment period ending December 31, 2024. Morgan Stanley also made certain other assumptions, including (i) a multiple of 7.2x of gross debt to leverageable Company EBITDA (adjusted for certain non-recurring items and unburdened by stock based compensation expense and integration costs for the acquisition of each of Halo and Avista) of $157 million, which debt financing consisted of a first lien term loan representing 5.6x leverageable EBITDA and a second lien term loan representing 1.6x leverageable EBITDA, (ii) debt financing and transaction expenses based on prevailing market terms at the time of the analysis (including (x) an interest rate on the first lien term loan of LIBOR plus 4.00% and (y) an interest rate on the second lien term loan of LIBOR plus 7.00%), (iii) a range from 10.0x to 12.0x of AV/NTM EBITDA exit multiples and (iv) a target range of annualized internal rates of return for the financial sponsor of 15.0%. Morgan Stanley selected the leverageable EBITDA, leverage multiple, financing terms, exit multiple and target internal rate of return based upon the application of its professional judgment and experience. Based on these calculations, this analysis indicated a range of implied equity value per share of Company Common Stock, rounded to the nearest $1.00, of (x) $49.00 to $57.00 per share for the Case A Projections and (y) $52.00 to $60.00 per share for the Case B Projections.

Equity Research Analysts’ Price Targets

For reference only, and not as a component of its fairness analysis, Morgan Stanley reviewed and analyzed the future public market trading price targets for the shares of Company Common Stock prepared and published by equity research analysts as of August 5, 2019. These targets reflected each analyst’s estimate as of the date of publication of the future public market trading price of the shares of Company Common Stock. The range of undiscounted analyst price targets for the shares of Company Common Stock, rounded to the nearest $1.00, was $44.00 to $55.00. In order to better compare the equity analysts’ stock price targets with the Per Share Merger Consideration, based on its professional judgment and experience, Morgan Stanley also discounted each analyst’s price target to present value by applying, for a one year discount period, a discount rate of 8.7%, selected by Morgan Stanley based on the application of its professional judgment and experience to reflect the Company’s cost of equity. This analysis resulted in a discounted analyst price target range for the Company Common Stock, rounded to the nearest $1.00, of $40.00 to $51.00 per share.

The public market trading price targets published by equity research analysts do not necessarily reflect current market trading prices for the Company Common Stock, and these estimates are subject to uncertainties, including the future financial performance of the Company and future financial market conditions.

 

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Historical Trading Range

For reference only, and not as a component of its fairness analysis, Morgan Stanley reviewed the historical trading range of the shares of Company Common Stock for the period commencing on August 5, 2018, and ending on August 5, 2019. Morgan Stanley observed that, during this period, the high and low closing prices of the Company Common Stock, rounded to the nearest $1.00, were $36.00 and $68.00 per share, respectively.

General

In connection with the review of the Merger by the Board of Directors, Morgan Stanley performed a variety of financial and comparative analyses for purposes of rendering its opinion. The preparation of a financial opinion is a complex process and is not necessarily susceptible to a partial analysis or summary description. In arriving at its opinion, Morgan Stanley considered the results of all of its analyses as a whole and did not attribute any particular weight to any analysis or factor it considered. Morgan Stanley believes that selecting any portion of its analyses, without considering all analyses as a whole, would create an incomplete view of the process underlying its analyses and opinion. In addition, Morgan Stanley may have given various analyses and factors more or less weight than other analyses and factors, and may have deemed various assumptions more or less probable than other assumptions. As a result, the ranges of valuations resulting from any particular analysis described above should not be taken to be Morgan Stanley’s view of the actual value of the Company.

In performing its analyses, Morgan Stanley made numerous assumptions with regard to industry performance, general business, regulatory, economic, market and financial conditions and other matters, which are beyond the control of the Company. These include, among other things, the impact of competition on the business of the Company and the industry generally, industry growth, and the absence of any adverse material change in the financial condition and prospects of the Company and the industry, and in the financial markets in general. Any estimates contained in Morgan Stanley’s analyses are not necessarily indicative of future results or actual values, which may be significantly more or less favorable than those suggested by such estimates.

Morgan Stanley conducted the analyses described above solely as part of its analysis of the fairness, from a financial point of view, of the Per Share Merger Consideration to be received by the holders of shares of Company Common Stock, and in connection with the delivery of its opinion to the Board of Directors. These analyses do not purport to be appraisals or to reflect the prices at which shares of Company Common Stock might actually trade.

The Per Share Merger Consideration was determined through arm’s-length negotiations between the Company and Permira and was approved by the Board of Directors. Morgan Stanley acted as financial advisor to the Board of Directors during these negotiations but did not, however, recommend any specific form or amount of consideration to the Company or the Board of Directors, nor did Morgan Stanley opine that any specific form or amount of consideration constituted the only appropriate consideration for the Merger. Morgan Stanley’s opinion did not address the relative merits of the Merger as compared to any other alternative business transaction, or other alternatives, or whether or not such alternatives could be achieved or are available. Morgan Stanley’s opinion was not intended to, and does not, constitute advice or a recommendation as to how the Company’s stockholders should vote at any stockholders’ meeting that may be held in connection with the Merger, or whether the stockholders should take any other action in connection with the Merger. In addition, Morgan Stanley’s opinion did not in any manner address the prices at which shares of Company Common Stock will trade at any time.

Morgan Stanley’s opinion and its presentation to the Board of Directors was one of many factors taken into consideration by the Board of Directors in deciding to approve and adopt the Merger Agreement, declare the advisability of the Merger Agreement and approve the transactions contemplated thereby, including the Merger. Consequently, the analyses as described above should not be viewed as determinative of the opinion of the Board of Directors with respect to the consideration pursuant to the Merger Agreement or of whether the Board of

 

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Directors would have been willing to agree to different consideration. Morgan Stanley’s opinion was approved by a committee of Morgan Stanley investment banking and other professionals in accordance with its customary practice.

The Board of Directors retained Morgan Stanley based on Morgan Stanley’s qualifications, experience and expertise and its familiarity with the Company. Morgan Stanley, together with its affiliates, is a global financial services firm engaged in the securities, investment management and individual wealth management businesses. Its securities business is engaged in securities underwriting, trading and brokerage activities, foreign exchange, commodities and derivatives trading, prime brokerage, as well as providing investment banking, financing and financial advisory services. Morgan Stanley, its affiliates, directors and officers may at any time invest on a principal basis or manage funds that invest, hold long or short positions, finance positions, and may trade or otherwise structure and effect transactions, for their own account or the accounts of its customers, in debt or equity securities or loans of Permira and its affiliates, the Company, or any other company, or any currency or commodity, that may be involved in the Merger, or any related derivative instrument.

Under the terms of its engagement letter, Morgan Stanley provided the Company financial advisory services and a financial opinion, described in this section and attached to this proxy statement as Annex B, in connection with the Merger, and the Company has agreed to pay Morgan Stanley a fee of approximately $20.5 million for its financial advisory services, approximately $1.5 million of which was payable in connection with the delivery of the fairness opinion and approximately $19.0 million of which is contingent upon consummation of the Merger. the Company has also agreed to reimburse Morgan Stanley for its reasonable and documented expenses incurred from time to time in connection with this engagement. In addition, the Company has agreed to indemnify Morgan Stanley and its affiliates, its and their respective directors, officers, employees and agents and each other person, if any, controlling Morgan Stanley or any of its affiliates, against any losses, claims, damages or liabilities, relating to, arising out of or in connection with Morgan Stanley’s engagement and to reimburse certain expenses relating to such indemnity.

In the two years prior to the date of its opinion, Morgan Stanley has provided financial advisory and financing services for Permira or its affiliates and has received fees in connection with such services in the amounts of approximately $30 million. In the two years prior to the date of its opinion, except for its current engagement as financial advisor to Cambrex, Morgan Stanley has not provided financial advisory or financing services to Cambrex or its affiliates and has not received any fee for such services during such time. Morgan Stanley may also seek to provide financial advisory and financing services to Permira and the Company and their respective affiliates in the future and would expect to receive fees for the rendering of these services.

Interests of the Company’s Directors and Executive Officers in the Merger

When considering the foregoing recommendation of the Board of Directors that you vote to approve the proposal to adopt the Merger Agreement, you should be aware that the Company’s directors and executive officers may have interests in the Merger that are different from, or in addition to, those of the Company’s stockholders more generally. In (1) evaluating and negotiating the Merger Agreement, (2) approving the Merger Agreement and the Merger and (3) recommending that the Merger Agreement be adopted by stockholders, the Board of Directors was aware of and considered these interests, among other matters, to the extent that these interests existed or were contemplated at the time. These interests are described in more detail and, where applicable, are quantified in the narrative below.

Current Relationship with Permira

Mr. Glassell serves as an advisor for Permira and is the chairman of one of Permira’s portfolio companies. Due to these roles, Mr. Glassell recused himself from board discussions regarding the Merger and abstained from voting as a member of the Board of Directors to approve the Merger Agreement and the Merger.

 

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Arrangements with Parent

As of the date of this proxy statement, none of our executive officers has entered into any agreement with Parent or any of its affiliates regarding employment with, or the right to purchase or participate in the equity of, the Company or one or more of its affiliates following the Effective Time. Prior to and following the closing of the Merger, however, certain of our executive officers may have discussions with, and following the closing of the Merger, may enter into agreements with, Parent, its subsidiaries or their respective affiliates regarding employment with, or the right to purchase or participate in the equity of, the Company or one or more of its affiliates.

Ad Hoc Committee Compensation

In consideration of the ad hoc committee’s time and contribution to the transaction process, the Board of Directors determined that a fee of $250,000 should be paid to Mr. Kaufthal, $75,000 should be paid to Mr. Grabowsky and $75,000 should be paid to Mr. Yanai. The compensation was approved by the Board of Directors after its approval of the Company’s execution of the Merger Agreement in a session at which Messrs. Kaufthal, Grabowsky and Yanai were not present, and the compensation was not, and is not, contingent upon the approval by stockholders of the proposal to adopt the Merger Agreement and completion of the Merger and the transactions contemplated thereby or any other transaction involving the Company and Permira.

Insurance and Indemnification of Directors and Executive Officers

The Merger Agreement provides that the Surviving Corporation and its subsidiaries shall, and Parent shall cause the Surviving Corporation and its subsidiaries to, honor and fulfill the obligations of the Company and any of its subsidiaries pursuant to any indemnification agreements between the Company and any of its subsidiaries, on the one hand, and any of their respective current or former directors, officers or employees (and any person who becomes a director, officer or employee of the Company or any of its subsidiaries prior to the Effective Time), on the other hand, with respect to such acts or omissions occurring prior to the Effective Time. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation and its subsidiaries shall (and Parent shall cause the Surviving Corporation and its subsidiaries to) cause the organizational documents of the Surviving Corporation and its subsidiaries to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions set forth in the organizational documents of the subsidiaries of the Company as of the date of the Merger Agreement. During such six-year period, such provisions may not be repealed, amended or otherwise modified in any manner except as required by applicable law.

In addition, the Merger Agreement provides that, during the six-year period commencing at the Effective Time, the Surviving Corporation will (and Parent must cause the Surviving Corporation to) indemnify and hold harmless each current or former director, officer or employee of the Company and its subsidiaries, to the fullest extent permitted by law, in connection with any legal proceeding arising, directly or indirectly, out of or pertaining, directly or indirectly, to (1) the fact that an indemnified person is or was a director, officer, employee or agent of the Company or its subsidiaries or other affiliates; (2) any action or omission, or alleged action or omission, in such indemnified person’s capacity as a director, officer, employee or agent of the Company or its subsidiaries or other affiliates, or taken at the request of the Company or such subsidiary or affiliate as a director, officer, employee, agent, trustee or fiduciary of another person, regardless of whether such action or omission, or alleged action or omission, occurred prior to, or at the Effective Time; and (3) the Merger, as well as any actions taken by the Company, Parent or Merger Sub with respect thereto. The Surviving Corporation will (and Parent must cause the Surviving Corporation to) advance all fees and expenses (including fees and expenses of any counsel) as incurred by any such indemnified person in the defense of such legal proceeding.

In addition, unless the Company has purchased a “tail” policy prior to the Effective Time (which the Company may purchase, provided that the premium for such insurance does not exceed 300% of the aggregate annual

 

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premiums paid by the Company in the last full fiscal year), the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain in effect the Company’s current directors’ and officers’ liability insurance on terms that are equivalent to the Company’s current directors’ and officers’ insurance policies, for a period of at least six years commencing at the Effective Time. Neither Parent nor the Surviving Corporation will be required to pay premiums for such policy to the extent such annual premiums exceed 300% of the aggregate annual premiums paid by the Company in the last full fiscal year, and if the premium for such insurance coverage would exceed such amount Parent shall be obligated to cause the Surviving Corporation to obtain the greatest coverage available for a cost not exceeding such amount. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Indemnification and Insurance.”

Treatment of Company Options, Company RSUs and Company PSUs

As described below under the caption “Proposal 1: Adoption of the Merger Agreement—Merger Consideration—Outstanding Company Options, Company RSUs and Company PSUs,” outstanding Company equity-based awards will be treated as follows at the Effective Time:

 

   

each Company Option that is outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of (1) the Per Share Merger Consideration, less the exercise price per share attributable to such Company Option, multiplied by (2) the total number of shares of Company Common Stock issuable upon exercise in full of such Company Option; provided that if the exercise price per share of any such Company Option is equal to or greater than the Per Share Merger Consideration, such Company Option will be cancelled for no consideration;

 

   

each Company RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest, equal to the product of (1) the Per Share Merger Consideration, multiplied by (2) the total number of shares of Company Common Stock subject to such Company RSU; and

 

   

each Company PSU that is outstanding immediately prior to the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest thereon, equal to the product of (1) the Per Share Merger Consideration, multiplied by (2) the total number of shares of Company Common Stock subject to such Company PSU, with any performance-based vesting conditions deemed achieved at the greater of (x) target levels of performance and (y) actual levels of performance, without pro-ration.

Summary of Outstanding Equity Awards

The table below sets forth, for each of the Company’s executive officers and non-executive directors, (i) the number of outstanding unvested Company Options, (ii) the number of outstanding unvested Company RSUs, and (iii) the number of outstanding unvested Company PSUs (assuming target achievement of the applicable performance goals), held by such executive officer or non-executive director (as applicable), in each case, as of September 19, 2019, the latest practicable date to determine such amounts before the filing of this proxy statement. These numbers do not forecast any grants, additional issuances, dividends, additional deferrals or forfeitures of equity-based awards following the date of this proxy statement. Depending on when the Effective Time occurs, certain equity-based awards shown in the table may vest in accordance with their terms.

The table below also sets forth, for each of the Company’s named executive officers and non-executive directors, (i) the amount payable at the closing of the Merger in respect of the outstanding unvested Company Options, Company RSUs and Company PSUs and (ii) the total amount payable at the closing of the Merger in respect of such Company equity-based awards, in each case based on the treatment of such awards as described above, assuming the Merger was consummated on September 19, 2019 for these purposes. The amounts are calculated: (i) in the case of Company Options, by multiplying the number of Company Options by the Per Share Merger

 

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Consideration, less the applicable exercise price per share attributable to such Company Option, and (ii) in the case of Company RSUs and Company PSUs, by multiplying the number of shares of Company Common Stock subject to such Company RSU or Company PSU, as applicable, by the Per Share Merger Consideration. As described above under “—Treatment of Company Options, Company RSUs and Company PSUs,” pursuant to the Merger Agreement, any performance-based vesting conditions will be deemed achieved at the greater of target levels of performance and actual levels of performance; accordingly, because the number of outstanding Company PSUs in the table below assumes target levels of achievement with respect to applicable performance goals, the value of such amounts payable in respect of the Company PSUs could be greater than the amounts reflected in the table. The estimated amount that would be payable to Dorothy Donnelly-Brienza, Senior Vice President and Chief Human Resources Officer (who is an executive officer of the Company but is not a named executive officer as determined for our most recent annual proxy statement) with respect to the settlement of her unvested equity-based awards if the Merger was consummated on September 19, 2019 is $334,324.

 

Name

  Unvested
Company
Options (#)
    Value of
Unvested
Company
Options ($)
    Company
RSUs (#)
    Value of
Company
RSUs ($)
    Company
PSUs (#)
    Value of
Company
PSUs ($)
    Total Merger
Consideration
($)
 

Named Executive Officers(1)

             

Steven M. Klosk

    96,000     $ 1,317,923       10,378     $ 622,680       65,500     $ 3,930,000     $ 5,870,603  

Shawn P. Cavanagh

    73,750     $ 984,744       7,264     $ 435,840       53,000     $ 3,180,000     $ 4,600,584  

Gregory P. Sargen

    61,250     $ 827,238       6,227     $ 373,620       43,500     $ 2,610,000     $ 3,810,858  

Samantha M. Hanley

    53,750     $ 701,706       1,131     $ 67,860       —       $ —       $ 769,566  

Tom Vadaketh

    —       $ —         —       $ —         —       $ —       $ —    

Non- Executive Directors

             

Gregory B. Brown

    2,766     $ 55,154       2,247     $ 134,820       —       $ —       $ 189,974  

Claes Glassell

    2,766     $ 55,154       2,247     $ 134,820       —       $ —       $ 189,974  

Louis Grabowsky

    2,766     $ 55,154       2,247     $ 134,820       —       $ —       $ 189,974  

Bernhard Hampl.

    2,983     $ 59,481       2,247     $ 134,820       —       $ —       $ 194,301  

Kathryn R. Harrigan

    2,766     $ 55,154       2,247     $ 134,820       —       $ —       $ 189,974  

Ilan Kaufthal

    3,850     $ 76,769       2,247     $ 134,820       —       $ —       $ 211,589  

Shlomo Yanai

    2,766     $ 55,154       2,247     $ 134,820       —       $ —       $ 189,974  

Rosina Dixon

    —       $ —         —       $ —         —       $ —       $ —    

Peter Tombros

    —       $ —         —       $ —         —       $ —       $ —    

 

(1)

Our “named executive officers” are our chief executive officer, chief financial officer and two other most highly compensated executive officers, as determined for purposes of our most recent annual proxy statement. Tom Vadaketh resigned from his position as Executive Vice President and Chief Financial Officer effective September 4, 2018.

Employment Agreements

On August 6, 2019, the Company entered into employment agreements with Steven M. Klosk (President & Chief Executive Officer) and Samantha Hanley (Vice President, General Counsel & Corporate Secretary), as well as amended and restated employment agreements with Shawn P. Cavanagh (Executive Vice President & Chief Operating Officer) and Gregory P. Sargen (Executive Vice President, Chief Financial Officer) (collectively, the “Employment Agreements”). Each of Messrs. Klosk, Cavanagh, and Sargen and Ms. Hanley is hereinafter referred to as an “Executive.”

The Employment Agreements become effective (the “Agreement Effective Date”) upon the date that a “Change of Control” (as such term is defined in the Employment Agreements) occurs, or if (i) the Executive’s employment is terminated by the Company prior to the date on which a Change of Control occurs, and such termination is either (1) at the request of a third party who has taken steps reasonably calculated to effect a Change of Control or (2) in connection with or anticipation of a Change of Control or (ii) the Executive’s employment is terminated by the Company other than for “Cause” (as defined below) prior the date on which a Change of Control occurs, and such termination is within twelve months after, among other things, the execution of a definitive merger agreement, then, provided such Change of Control actually occurs, the Employment

 

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Agreements will be effective upon the date immediately prior to the Date of Termination (as defined in the Employment Agreements). The Employment Agreements each have a term that commences as of the Agreement Effective Date and ends on the second anniversary of such date (the “Employment Period”). The Effective Time will qualify as a “Change of Control” under the Employment Agreements.

The Employment Agreements provide each Executive with the following compensation and benefits during the Employment Period:

 

   

Annual base salary at a monthly rate at least equal to the highest monthly base salary paid or payable to the Executive during the twelve-month period immediately preceding the month in which the Agreement Effective Date occurs; and

 

   

Annual bonus opportunity (the “Annual Bonus”) for each fiscal year of the Employment Period, payable in cash, restricted stock, restricted stock units or other forms of remuneration on the same bases as with respect to the fiscal year immediately preceding the Agreement Effective Date; provided that, the Executive’s Annual Bonus as of the start of the fiscal year that includes a Change of Control will be the Executive’s target bonus.

In the event that the Executive’s employment is terminated by the Company without “Cause” or the Executive terminates his or her employment for “Good Reason” (each as defined below) during the Employment Period, the Executive will be entitled to receive the following amounts, payable in a lump sum within thirty days after the Date of Termination, as applicable, subject to the Executive’s compliance with certain non-competition covenants:

 

   

the Executive’s full base salary through the Date of Termination at the rate in effect on such date or, if higher, at the highest rate in effect at any time from the ninety-day period preceding the Agreement Effective Date through the Date of Termination (the “Highest Base Salary”);

 

   

the product of (x) the highest Annual Bonus earned by the Executive during the two fiscal years immediately preceding the Date of Termination, or, if higher, the Executive’s target bonus opportunity after the Agreement Effective Date until two Annual Bonuses have actually been earned and (y) a fraction, the numerator of which is the number of days in the current fiscal year through the Date of Termination and the denominator of which is 365;

 

   

two times the Executive’s Highest Base Salary;

 

   

two times the Executive’s highest Annual Bonus earned by the Executive during the two fiscal years immediately preceding the Date of Termination, provided that Executive’s Annual Bonus as described herein after the date of Employment Agreement shall be the Executive’s target bonus opportunity until an Annual Bonus has actually been earned;

 

   

in the case of compensation previously deferred by the Executive, all amounts previously deferred (together with accrued interest thereon, if any) and not yet paid by the Company, and any accrued vacation pay not yet paid by the Company;

 

   

for the remainder of the Employment Period, or such longer period as any plan, program, practice or policy may provide, the Company shall continue benefits to the Executive and/or the Executive’s family at least equal to those which would have been provided to them as if the Executive’s employment had not been terminated, in accordance with the most favorable employee benefit plans of the Company and its subsidiaries (including health insurance and life insurance) during the ninety-day period immediately preceding the Agreement Effective Date or, if more favorable to the Executive, as in effect at any time thereafter with respect to other key employees and their families; and

 

   

all outstanding equity awards held by the Executive shall immediately vest and, as applicable, become exercisable, and all outstanding options or stock appreciation rights shall remain outstanding and exercisable for the two-year period following the Date of Termination or, if earlier, the expiration date indicated in the respective equity award agreement (if any).

 

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“Cause” is defined in the Employment Agreements as the Executive’s (i) personal dishonesty or breach of fiduciary duty involving personal profit; (ii) the commission of a criminal act related to the performance of duties, or the furnishing of proprietary confidential information about the Company to a competitor, or potential competitor or third party whose interests are adverse to those of the Company; (iii) habitual intoxication by alcohol or drugs during work hours; or (iv) conviction of a felony.

“Good Reason” is defined in the Employment Agreements as the occurrence of any of the following: (i) a relocation of the principal place at which the Executive’s duties are to be performed to a location more than thirty-five (35) miles from the principal place where the Executive’s duties were performed during the ninety-day period immediately preceding the Agreement Effective Date; (ii) a substantial reduction in the Executive’s base salary or target bonus, or in the benefits or perquisites provided the Executive from those which pertained during the ninety-day period immediately preceding the Agreement Effective Date; (iii) a substantial reduction in the Executive’s responsibilities, authorities or functions from those which pertained during the ninety-day period immediately preceding the Agreement Effective Date; (iv) a substantial adverse change in the Executive’s work conditions from those which pertained during the ninety-day period immediately preceding the Agreement Effective Date; or (v) the Company’s failure to require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company to assume expressly and agree to perform the Employment Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place. Mr. Sargen’s Employment Agreement, as amended, continues to provide that any termination by Mr. Sargen during the thirty-day period immediately following the first anniversary of the Agreement Effective Date shall be deemed to be a termination for Good Reason.

The Employment Agreement with Mr. Sargen, as amended, continues to provide that to the extent any payments or benefits received by Mr. Sargen would be subject to the excise tax imposed by Section 4999 of the Code or any interest or penalties with respect to such excise tax (the “Excise Tax”), Mr. Sargen will be entitled to receive an additional payment from the Company (the “Gross-Up Payment”) in the amount such that after payment by the Executive of all taxes (including any interest or penalties imposed with respect to such taxes), including any Excise Tax, imposed upon the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment equal to the Excise Tax imposed upon such payments. However, the Company’s Compensation Committee has reserved the right to provide certain individuals (including the Executives) with an excise tax gross-up to the extent that, following the Company’s efforts to mitigate any Excise Taxes, the payments and benefits received by certain individuals in connection with the Merger would trigger Excise Taxes. The amount of such excise tax gross-ups will not exceed $1 million in the aggregate.

The Employment Agreements also provide that the Executive may not disclose or use any confidential information of the Company during or after the Employment Period. During the Executive’s employment with the Company and for a period of one year thereafter, the Executive is also precluded from engaging or becoming associated in any business which is in competition with the Company.

280G Mitigation Actions

While the Company will be permitted to take certain actions to reduce the amount of any potential “excess parachute payments” for “disqualified individuals” (each as defined in Section 280G of the Code), the Board of Directors has not yet approved any specific actions to mitigate the expected impact of Section 280G of the Code on the Company and any disqualified individuals, other than the arrangements contained in the Employment Agreements, as described above in the section captioned “—Employment Agreements.”

Payments Upon Termination At or Following Change in Control

The table below, entitled “Potential Change-in-Control Payments to Named Executive Officers,” along with its footnotes, sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation payable

 

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to the Company’s named executive officers (i.e., our Chief Executive Officer, Chief Financial Officer and three other most highly compensated executive officers, as determined based on our most recent annual proxy statement), which compensation is subject to an advisory vote of the Company’s stockholders on the Compensation Proposal, as described below under the caption “Proposal 2: The Company’s Compensation Proposal.” The table assumes the consummation of the Merger occurred on September 19, 2019, the latest practicable date to determine such amounts before the filing of this proxy statement, and that the employment of each named executive officer is terminated without “Cause” or for “Good Reason” on such date. The value of any equity-based awards was calculated by multiplying (i) the number of Company Options by the excess, if any, of the Per Share Merger Consideration ($60.00) over the exercise price of such Company Option, and (ii) the number of shares of Company Common Stock underlying each Company RSU and Company PSU by the Per Share Merger Consideration ($60.00).

The calculations in the table below do not include amounts the named executive officers were already entitled to receive or amounts in which the named executive officers were vested, in each case, as of the date hereof nor amounts under contracts, agreements, plans or arrangements to the extent they do not discriminate in scope, terms or operation in favor of executive officers and that are available generally to all the salaried employees of the Company. Based on the Company’s preliminary Section 280G analysis, the payments and benefits received by the named executive officers in connection with the Merger will not trigger Excise Taxes, and therefore, no gross-up amounts were included herein.

The amounts shown are estimates based on multiple assumptions and do not reflect compensation actions that could occur after the date of this proxy statement and before the Effective Time. As a result, the actual amounts received by a named executive officer may differ materially from the amounts shown in the following table.

Potential Change-in-Control Payments to Named Executive Officers

 

Name

   Cash
Severance ($)(1)
     Equity ($)(2)      Health and
Welfare
Benefits ($)(3)
     Total ($)(4)  

Steven M. Klosk

   $ 5,460,730      $ 5,870,603      $ 28,700      $ 11,360,033  

Shawn P. Cavanagh

   $ 4,460,589      $ 4,600,584      $ 28,700      $ 9,089,873  

Gregory P. Sargen

   $ 4,165,098      $ 3,810,858      $ 28,700      $ 8,004,656  

Samantha M. Hanley

   $ 2,302,078      $ 769,566      $ 28,700      $ 3,100,344  

 

(1)

The amounts in this column represent the value of cash severance payments payable to the Executives pursuant to their employment agreements upon a termination of employment without “Cause” or for “Good Reason” following the Effective Time. As described above in the section captioned “—Employment Agreements,” the cash payments to the Executives consist of (i) two times the Executive’s Highest Base Salary, (ii) two times the Executive’s highest annual bonus earned over the two immediately preceding fiscal years and (iii) a pro-rata annual bonus based on the highest annual bonus earned by the Executive during the two fiscal years prior to termination.

The above payments are “double-trigger” in nature as they will only be payable in the event of a termination of employment without “cause” or for “good reason” following the Effective Time, as described above. The amounts shown in this column are based on the compensation and benefit levels in effect on September 19, 2019, the latest practicable date to determine such amounts before the filing of this proxy statement; therefore, if compensation and benefit levels are changed after such date, actual payments to an executive officer may be different than those provided for above.

 

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The cash payments described in this column (1) include the following components:

 

Name

   Two Times
Highest Base
Salary ($)
     Two Times
Highest Annual
Bonus ($)
     Pro-Rata Annual
Bonus ($)
     Total ($)  

Steven M. Klosk

   $ 1,566,000      $ 2,859,492      $ 1,035,238      $ 5,460,730  

Shawn P. Cavanagh

   $ 1,200,000      $ 2,401,846      $ 858,742      $ 4,460,589  

Gregory P. Sargen

   $ 1,000,000      $ 2,332,094      $ 833,803      $ 4,165,098  

Samantha M. Hanley

   $ 820,000      $ 1,091,742      $ 390,335      $ 2,302,078  

 

(2)

The amounts in this column represent the value attributable to the acceleration, and payment to be received upon cancellation of, outstanding and unvested Company Options, Company RSUs and Company PSUs. The value of the Company PSUs is determined based on achievement of applicable performance-based vesting requirements at target payout levels, as further described above in the section captioned “—Treatment of Company Options, Company RSUs and Company PSUs.” As described above under “—Treatment of Company Options, Company RSUs and Company PSUs,” pursuant to the Merger Agreement, any performance-based vesting conditions will be deemed achieved at the greater of target levels of performance and actual levels of performance; accordingly, the value of such amounts payable in respect of the Company PSUs could be greater than the amounts reflected in the table.

The amounts shown do not attempt to forecast any grants, additional issuances, dividends, additional deferrals or forfeitures of equity-based awards following the date of this proxy statement. In accordance with the Merger Agreement, the equity-based payments are “single-trigger” in nature as they will become payable immediately upon the Effective Time.

The equity payments described in this column (2) include the following components:

 

Name

   Company
Options ($)
     Company
RSUs ($)
     Company
PSUs ($)
     Total ($)  

Steven M. Klosk

   $ 1,317,923      $ 622,680      $ 3,930,000      $ 5,870,603  

Shawn P. Cavanagh

   $ 984,744      $ 435,840      $ 3,180,000      $ 4,600,584  

Gregory P. Sargen

   $ 827,238      $ 373,620      $ 2,610,000      $ 3,810,858  

Samantha M. Hanley

   $ 701,706      $ 67,860      $ —        $ 769,566  

 

(3)

The amounts in this column represent health and welfare benefits to the Executives consisting of two years of health and welfare benefits continuation, as described above in the section entitled “—Employment Agreements.”

The above payments are “double-trigger” in nature as they will only be payable in the event of a termination of employment without “Cause” or for “Good Reason” following the Effective Time, as described above. The amounts in the column above reflect health and benefits rates in effect for 2019; therefore, if benefits levels change between the date of this proxy statement and the closing of the Merger, such amounts may be higher or lower than the values set forth in this column.

 

(4)

The amounts in this column represent the total of all compensation in columns (1), (2) and (3). The “single-trigger” and “double-trigger” components of the aggregate total compensation amounts, respectively, for each named executive officer are as follows:

 

Name

   Single-Trigger
Payments($)
     Double-Trigger
Payments ($)
 

Steven M. Klosk

   $ 5,870,603      $ 5,489,430  

Shawn P. Cavanagh

   $ 4,600,584      $ 4,489,289  

Gregory P. Sargen

   $ 3,810,858      $ 4,193,798  

Samantha M. Hanley

   $ 769,566      $ 2,330,778  

 

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Financing of the Merger

The obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition.

It is anticipated that the total amount of funds necessary to complete the Merger and the related transactions, and to pay the fees and expenses required to be paid at the closing of the Merger by Parent and Merger Sub under the Merger Agreement, will be approximately $2,560 million in cash.

The Equity Commitment, the Debt Financing, and unrestricted cash at the Company will be available (i) to fund the aggregate purchase price, (ii) to repay, prepay or discharge (after giving effect to the Merger) the principal of and interest on, and all other indebtedness and other amounts outstanding pursuant to the Company’s existing credit agreement, (iii) for working capital and other general corporate purposes and (iv) to pay all fees and expenses required to be paid at the closing of the Merger by Parent, Merger Sub and the Company contemplated by, and subject to the terms and conditions of, the Merger Agreement. Upon the terms and subject to the conditions of the Equity Commitment Letter, the Company has a contractual right to enforce the Equity Commitment Letter against the Permira Funds and, under the terms and subject to the conditions of the Merger Agreement, the Company has the right to specifically enforce Parent’s obligation to consummate the Merger upon receipt of the proceeds of the Debt Financing. For more information, please see the section of this proxy statement captioned “Proposal 1: Adoption of the Merger Agreement—Specific Performance.”

Equity Financing

In connection with the financing of the Merger, the Permira Funds, Parent, Merger Sub and certain affiliates of Parent and Merger Sub have entered into an equity commitment letter, dated August 7, 2019 (the “Equity Commitment Letter”). Pursuant to the Equity Commitment Letter, the Permira Funds have agreed to provide Parent with the Equity Commitment of an amount in euro which is equal to $1,382 million in cash. The Equity Commitment Letter provides, among other things, that the Company is an express third-party beneficiary thereof in connection with the Company’s exercise of its rights related to specific performance under the Merger Agreement.

Debt Financing

In connection with the financing of the Merger, Merger Sub also has obtained the Debt Commitment Letter from Royal Bank of Canada, as Arranger, pursuant to which the Arranger has committed to provide, upon the terms and subject to the conditions set forth in the Debt Commitment Letter, the First Lien Credit Facilities consisting of a senior secured first lien term loan facility in a principal amount equal to $875 million and a $135 million senior secured first lien revolving credit facility, and the Second Lien Facility in a principal amount equal to $250 million. We refer to the financing described above as the “Debt Financing.” Subsequent to the entry into the Merger Agreement, (i) on August 23, 2019, Merger Sub entered into a supplement to commitment letter and fee letter to add Barclays Bank PLC as an additional financing source and to reallocate a portion of the debt commitments of the Arranger under the Debt Commitment Letter, (ii) on August 25, 2019, Merger Sub entered into a supplement to commitment letter and fee letter to add Société Générale as an additional financing source and to reallocate a portion of the debt commitments of the Arranger under the Debt Commitment Letter, (iii) on August 26, 2019, Merger Sub entered into a supplement to commitment letter and fee letter to add UBS Securities LLC and UBS AG, Stamford Branch as additional financing sources and to reallocate a portion of the debt commitments of the Arranger under the Debt Commitment Letter and (iv) on August 27, 2019, Merger Sub entered into a supplement to commitment letter and fee letter to add Mizuho Bank, Ltd. as an additional financing source and to reallocate a portion of the debt commitments of the Arranger under the Debt Commitment Letter.

The proceeds of the Debt Financing will be used, among other things, (i) to finance, in part, the payment of the amounts payable under the Merger Agreement, (ii) for working capital and other general corporate purposes and (iii) to pay the fees and expenses incurred in connection with the Merger and obtaining Debt Financing.

 

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The Debt Financing contemplated by the Debt Commitment Letter is conditioned on the consummation of the Merger in accordance with the Merger Agreement, as well as other customary conditions.

If any portion of the Debt Financing becomes unavailable on the terms and conditions (including any “flex” provisions in any fee letter) contemplated in the Debt Commitment Letter and the related fee letter, Parent and Merger Sub will promptly notify the Company and use their respective reasonable best efforts to, as promptly as reasonably practicable following the occurrence of such event, (i) obtain the Debt Financing or such portion of the Debt Financing from the same or alternative sources on terms, conditions and costs not materially less favorable in the aggregate to Parent and Merger Sub than those contained in the Debt Commitment Letter and the related fee letter and in an amount at least equal to the Debt Financing or such unavailable and required portion thereof, as the case may be, and (ii) obtain one or more new financing commitment letters with respect to such alternate debt financing.

Fee Funding Agreement

Pursuant to the Fee Funding Agreement delivered by the Permira Funds in favor of the Company, the Permira Funds have agreed to fund the following payment obligations of Parent and Merger Sub under the Merger Agreement, which are subject to an aggregate cap equal to the sum of all such payment obligations: (i) monetary damages, including all or a portion of the Parent Termination Fee ($123,200,859) if required, on the terms and subject to the limitations set forth in the Merger Agreement; (ii) the Reimbursement Obligations, representing any amounts in respect of certain reimbursement and indemnification obligations of Parent and Merger Sub for certain costs, expenses or losses incurred or sustained by the Company, as specified in the Merger Agreement; (iii) the Interest Expenses, representing any interest on the Parent Termination Fee required to be paid by Parent to the Company, as specified in the Merger Agreement; and (iv) the Enforcement Expenses, representing any amounts in respect of certain out-of-pocket costs and expenses (including attorneys’ fees) related to the Company’s efforts to obtain payment of the Parent Termination Fee, as specified in the Merger Agreement.

Subject to specified exceptions, the Fee Funding Agreement will terminate upon the earliest of: (i) the consummation of the Merger and (ii) the later to occur of (A) the valid termination of the Merger Agreement under circumstances in which Parent would not be obligated to pay or cause to be paid the Parent Termination Fee and (B) the payment by Parent of its obligations (if any) under the Reimbursement Obligations, any other monetary damages required to be paid after the termination of this agreement, or under the Confidentiality Agreement referred to in the Merger Agreement.

Closing and Effective Time

The closing of the Merger will take place no later than (a) the fourth business day following the satisfaction or waiver of all conditions to closing of the Merger (described below under the caption “Proposal 1: Adoption of the Merger Agreement—Conditions to the Closing of the Merger”), other than those conditions to be satisfied at the closing of the Merger, but subject to the satisfaction or waiver of such conditions, or (b) such other time as Parent, Merger Sub and the Company mutually agree in writing; provided, however that the closing of the Merger cannot occur before September 21, 2019.

Appraisal Rights

If the Merger is consummated, stockholders who continuously hold shares of Company Common Stock through the Effective Time, who do not vote in favor of the adoption of the Merger Agreement and who properly demand appraisal of their shares and who do not withdraw their demands or otherwise lose their rights of appraisal will be entitled to appraisal of their shares in connection with the Merger under Section 262 the DGCL (“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 Annex C and incorporated herein by reference. The following summary does not constitute any legal

 

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or other advice and does not constitute a recommendation that stockholders exercise their appraisal rights under Section 262. All references in Section 262 and in this summary to a “stockholder” are to the record holder of shares of Company Common Stock unless otherwise expressly noted herein. Only a holder of record of shares of Company Common Stock is entitled to demand appraisal of the shares registered in that holder’s name. A person having a beneficial interest in shares of Company Common Stock held of record in the name of another person, such as a bank, broker, trust or other nominee, must act promptly to cause the record holder to follow the steps summarized below properly and in a timely manner to perfect appraisal rights. If you hold your shares of Company Common Stock through a bank, broker or other nominee and you wish to exercise appraisal rights, you should consult with your bank, broker or the other nominee.

Under Section 262, if the Merger is completed, holders of shares of Company Common Stock who: (1) submit a written demand for appraisal of their shares; (2) do not vote in favor of the adoption of the Merger Agreement; (3) continuously are the record holders of such shares through the Effective Time; and (4) otherwise exactly follow the procedures set forth in Section 262 will be entitled to have their shares appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of the shares of Company Common Stock, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid on the amount determined to be fair value as determined by the court. However, after an appraisal petition has been filed, the Delaware Court of Chancery will dismiss appraisal proceedings as to all stockholders who have asserted appraisal rights unless (a) the total number of shares for which appraisal rights have been pursued and perfected exceeds 1% of the outstanding shares of Company Common Stock as measured in accordance with subsection (g) of Section 262; or (b) the value of the aggregate merger consideration in respect of the shares of Company Common Stock for which appraisal rights have been pursued and perfected exceeds $1 million (conditions (a) and (b) referred to as the “ownership thresholds”). Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest on an appraisal award will accrue and compound quarterly from the Effective Time through the date the judgment is paid at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during such period. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may voluntarily pay to each stockholder entitled to appraisal an amount in cash pursuant to subsection (h) of Section 262, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary cash payment, unless paid at such time. The Surviving Corporation is under no obligation to make such voluntary cash payment prior to such entry of judgment.

Under Section 262, where a Merger Agreement is to be submitted for adoption at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, must notify each of its stockholders who was such on the record date for notice of such meeting with respect to shares for which appraisal rights are available that appraisal rights are available and include in the notice a copy of Section 262. This proxy statement constitutes the Company’s notice to 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 Annex C. In connection with the Merger, any holder of shares of Company Common Stock who wishes to exercise appraisal rights, or who wishes to preserve such holder’s right to do so, should review Annex C carefully. Failure to strictly comply with the requirements of Section 262 in a timely and proper manner may result in the loss of appraisal rights under the DGCL. A stockholder who loses his, her or its appraisal rights will be entitled to receive the Per Share Merger Consideration described in the Merger Agreement. Moreover, because of the complexity of the procedures for exercising the right to seek appraisal of shares of Company Common Stock, the Company believes that if a stockholder considers exercising such rights, that stockholder should seek the advice of legal counsel.

Stockholders wishing to exercise the right to seek an appraisal of their shares of Company Common Stock must do ALL of the following:

 

   

the stockholder must not vote in favor of the proposal to adopt the Merger Agreement;

 

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the stockholder must deliver to the Company a written demand for appraisal before the vote on the Merger Agreement at the Special Meeting;

 

   

the stockholder must continuously hold the shares from the date of making the demand through the Effective Time (a stockholder will lose appraisal rights if the stockholder transfers the shares before the Effective Time); and

 

   

the stockholder (or any person who is the beneficial owner of shares of Company Common Stock held either in a voting trust or by a nominee on behalf of such person) or the Surviving Corporation must file a petition in the Delaware Court of Chancery requesting a determination of the fair value of the shares within 120 days after the Effective Time. The Surviving Corporation is under no obligation to file any petition and has no present intention of doing so.

In addition, one of the ownership thresholds must be met.

Because a proxy that does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, a stockholder who submits a proxy and who wishes to exercise appraisal rights must instruct the proxy to vote against the adoption of the Merger Agreement or abstain from voting its shares.

Filing Written Demand

Any holder of shares of Company Common Stock wishing to exercise appraisal rights must deliver to the Company, before the vote on the adoption of the Merger Agreement at the Special Meeting at which the proposal to adopt the Merger Agreement will be submitted to stockholders, a written demand for the appraisal of the stockholder’s shares, and that stockholder must not vote or submit a proxy in favor of the adoption of the Merger Agreement. A holder of shares of Company Common Stock exercising appraisal rights must hold of record the shares on the date the written demand for appraisal is made and must continue to hold the shares of record through the Effective Time. A proxy that is submitted and does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the Merger Agreement, and it will constitute a waiver of the stockholder’s right of appraisal and will nullify any previously delivered written demand for appraisal. Therefore, a stockholder who submits a proxy and who wishes to exercise appraisal rights must submit a proxy containing instructions to vote against the adoption of the Merger Agreement or to abstain from voting on the adoption of the Merger Agreement. Voting against the adoption of the Merger Agreement or abstaining from voting or failing to vote on the proposal to adopt the Merger Agreement will not, in and of itself, constitute a written demand for appraisal satisfying the requirements of Section 262. The written demand for appraisal is in addition to and separate from any proxy or vote on the adoption of the Merger Agreement. A proxy or vote against the adoption of the Merger Agreement will not constitute a demand for appraisal. A stockholder’s failure to make the written demand for appraisal prior to the taking of the vote on the adoption of the Merger Agreement at the Special Meeting of the Company stockholders will constitute a waiver of appraisal rights.

Only a holder of record of shares of Company Common Stock is entitled to demand appraisal rights for the shares registered in that holder’s name. A demand for appraisal in respect of shares of Company Common Stock must be executed by or on behalf of the holder of record, and must reasonably inform the Company of the identity of the holder and state that the person intends thereby to demand appraisal of the holder’s shares in connection with the Merger. If the shares are owned of record in a fiduciary or representative capacity, such as by a trustee, guardian or custodian, such demand must be executed by or on behalf of the record owner, and if the shares are owned of record by more than one person, as in a joint tenancy and tenancy in common, the demand must be executed by or on behalf of all joint owners. An authorized agent, including an authorized agent for two or more joint owners, may execute a demand for appraisal on behalf of a holder of record; however, the agent must identify the record owner or owners and expressly disclose that, in executing the demand, the agent is acting as agent for the record owner or owners.

STOCKHOLDERS WHO HOLD THEIR SHARES IN BROKERAGE OR BANK ACCOUNTS OR OTHER NOMINEE FORMS AND WHO WISH TO EXERCISE APPRAISAL RIGHTS SHOULD CONSULT WITH

 

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THEIR BANK, BROKER OR OTHER NOMINEES, AS APPLICABLE, TO DETERMINE THE APPROPRIATE PROCEDURES FOR THE BANK, BROKER OR OTHER NOMINEE TO MAKE A DEMAND FOR APPRAISAL OF THOSE SHARES. A PERSON HAVING A BENEFICIAL INTEREST IN SHARES HELD OF RECORD IN THE NAME OF ANOTHER PERSON, SUCH AS A BANK, BROKER OR OTHER NOMINEE, MUST ACT PROMPTLY TO CAUSE THE RECORD HOLDER TO FOLLOW PROPERLY AND IN A TIMELY MANNER THE STEPS NECESSARY TO PERFECT APPRAISAL RIGHTS.

All written demands for appraisal pursuant to Section 262 should be mailed or delivered to:

Cambrex Corporation

Attention: Samantha Hanley, Vice President, General Counsel and Corporate Secretary

One Meadowlands Plaza

East Rutherford, New Jersey 07073

Any holder of shares of Company Common Stock who has delivered a written demand to the Company and who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal and accept the consideration offered pursuant to the Merger Agreement by delivering to the Company 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, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just; provided, however, that this 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 Per Share Merger Consideration within 60 days after the Effective Time. If an appraisal proceeding is commenced and the Company, as 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 demand 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 with respect to a stockholder, the stockholder will be entitled to receive only the appraised value determined in any such appraisal proceeding, which value could be less than, equal to or more than the Per Share Merger Consideration being offered pursuant to the Merger Agreement.

Notice by the Surviving Corporation

If the Merger is completed, within 10 days after the Effective Time, the Surviving Corporation will notify each holder of shares of Company Common Stock who has properly made a written demand for appraisal pursuant to Section 262, and who has not voted in favor of the adoption of the Merger Agreement, that the Merger has become effective and the effective date thereof.

Filing a Petition for Appraisal

Within 120 days after the Effective Time, but not thereafter, the Surviving Corporation or any holder of shares of Company Common Stock who has complied with Section 262 and is entitled to appraisal under Section 262 (including for this purpose any beneficial owner of the relevant shares) may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery, with a copy served on the Surviving Corporation in the case of a petition filed by a stockholder (or beneficial owner), demanding a determination of the fair value of the shares held by all stockholders entitled to appraisal. The Surviving Corporation is under no obligation, and has no present intention, to file a petition, and stockholders should not assume that the Surviving Corporation will file a petition or initiate any negotiations with respect to the fair value of the shares of Company Common Stock. Accordingly, any holders of shares of Company Common Stock who desire to have their shares appraised should initiate all necessary action to perfect their appraisal rights in respect of their shares of Company Common Stock within the time and in the manner prescribed in Section 262. The failure of a holder of Company Common Stock

 

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to file such a petition within the period specified in Section 262 could nullify the stockholder’s previous written demand for appraisal.

Within 120 days after the Effective Time, any holder of shares of Company Common Stock who has complied with the requirements of Section 262 and who is entitled to appraisal rights thereunder will be entitled, upon written request, to receive from the Surviving Corporation a statement setting forth the aggregate number of shares not voted in favor of the adoption of the Merger Agreement and with respect to which the Company has received demands for appraisal, and the aggregate number of holders of such shares. The Surviving Corporation must mail this statement to the requesting stockholder within 10 days after receipt by the Surviving Corporation of the written request for such a statement or within 10 days after the expiration of the period for delivery of demands for appraisal, whichever is later. A beneficial owner of shares of Company Common 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 seeking appraisal or request from the Surviving Corporation the foregoing statements. As noted above, however, the demand for appraisal can only be made by a stockholder of record.

If a petition for an appraisal is duly filed by a holder of shares of Company Common Stock and a copy thereof is served upon the Surviving Corporation, the Surviving Corporation will then be obligated within 20 days after such service to file with the Delaware Register in Chancery 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. Upon the filing of any such petition, the Delaware Court of Chancery may order that notice of the time and place fixed for the hearing on the petition be mailed to the Surviving Corporation and all of the stockholders shown on the written statement described above at the addresses stated therein. Such notice will also be published at least one week before the day of the hearing in a newspaper of general circulation published in the City of Wilmington, Delaware, or in another publication determined by the Court. The costs of these notices are borne by the Surviving Corporation. After notice to stockholders as required by the court, the Delaware Court of Chancery is empowered to conduct a hearing on the petition to determine those stockholders who have complied with Section 262 and who have become entitled to appraisal rights thereunder. The Delaware Court of Chancery may require the stockholders who demanded payment for their shares to submit their stock certificates (if any) to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings and, if any stockholder fails to comply with the direction, the Delaware Court of Chancery may dismiss that stockholder from the proceedings. The Delaware Court of Chancery will dismiss appraisal proceedings as to all stockholders who have asserted appraisal rights if neither of the ownership thresholds is met.

Determination of Fair Value

After determining the holders of Company Common Stock entitled to appraisal and that at least one of the ownership thresholds described above has been satisfied as to stockholders seeking appraisal rights, the appraisal proceeding will be conducted in accordance with the rules of the Delaware Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding, the Delaware Court of Chancery will determine the “fair value” of the shares of Company Common Stock, 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. In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, 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. However, at any time before the Delaware Court of Chancery enters judgment in the appraisal proceedings, the Surviving Corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case such interest will accrue after the time of such payment only on an amount that equals the difference, if any, between the amount so paid and the “fair value” of the shares as determined by the Delaware Court of Chancery, in addition to any interest accrued prior to the time of such voluntary payment, unless paid at such time.

 

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In Weinberger v. UOP, Inc., the Supreme Court of Delaware 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 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., 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 Supreme Court of Delaware 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.” In addition, the Delaware courts have decided that the statutory appraisal remedy, depending on factual circumstances, may or may not be a dissenting stockholder’s exclusive remedy.

Stockholders considering seeking appraisal should be aware that the fair value of their shares as so determined by the Delaware Court of Chancery could be more than, the same as or less than the consideration they would receive pursuant to the Merger if they did not seek appraisal of their shares and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a Merger is not an opinion as to, and does not in any manner address, fair value under Section 262. No representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and stockholders should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the Merger Consideration. Neither the Company nor Parent anticipates offering more than the Per Share Merger Consideration to any stockholder exercising appraisal rights, and each of the Company and Parent reserves the rights to make a voluntary cash payment pursuant to subsection (h) of Section 262 and to assert, in any appraisal proceeding, that for purposes of Section 262, the “fair value” of a share of Company Common Stock is less than the Per Share Merger Consideration. If a petition for appraisal is not timely filed, or if neither of the ownership thresholds described above has been satisfied as to stockholders seeking appraisal rights, then the right to an appraisal will cease. The costs of the appraisal proceedings (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and charged upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a stockholder, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by a stockholder in connection with an appraisal proceeding, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, be charged pro rata against the value of all the shares entitled to be appraised. In the absence of such determination or assessment, each party bears its own expenses.

If any stockholder who demands appraisal of his, her or its shares of Company Common Stock under Section 262 fails to perfect, or effectively loses or withdraws, such holder’s right to appraisal, the stockholder’s shares of Company Common Stock will be deemed to have been converted at the Effective Time into the right to receive the Merger Consideration, without interest. A stockholder will fail to perfect, or effectively lose or withdraw, the holder’s right to appraisal if no petition for appraisal is filed within 120 days after the Effective Time, if neither of the ownership thresholds described above has been satisfied as to stockholders seeking appraisal rights or if the stockholder delivers to the Surviving Corporation a written withdrawal of the holder’s demand for appraisal and an acceptance of the Per Share Merger Consideration in accordance with Section 262.

From and after the Effective Time, no stockholder who has demanded appraisal rights will be entitled to vote such shares of Company Common Stock for any purpose or to receive payment of dividends or other distributions on the stock, except dividends or other distributions on the holder’s shares of Company Common Stock, if any, payable to stockholders as of a time prior to the Effective Time. If no petition for an appraisal is filed, if neither of the ownership thresholds described above has been satisfied as to the stockholders seeking

 

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appraisal rights, or if the stockholder delivers to the Surviving Corporation a written withdrawal of the demand for an appraisal and an acceptance of the Merger and the Merger Consideration, either within 60 days after the Effective Time or thereafter with the written approval of the Surviving Corporation, then the right of such stockholder to an appraisal will cease. Once a petition for appraisal is filed with the Delaware Court of Chancery, however, the appraisal proceeding may not 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 the foregoing 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 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. Consequently, any stockholder wishing to exercise appraisal rights is encouraged to consult legal counsel before attempting to exercise those rights.

Litigation Relating to the Merger

On September 18, 2019, a stockholder complaint was filed in the United States District Court for the District of New Jersey against the Company and the individual members of the Board of Directors, captioned Stein v. Cambrex Corporation. et al., Case No. 2:19-cv-18106 (the “Complaint”). The Complaint alleges generally that the Company and the members of the Board of Directors violated Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder by omitting material information from the Proxy Statement rendering it false and misleading and seeks, among other things, an injunction against the Merger, or in the event the Merger is consummated, rescission and rescissory damages, additional disclosure of facts in the Proxy Statement relating to the Merger, a declaration from the court directing the defendants to account to plaintiff for all damages suffered as a result of their alleged wrongdoing, and costs and disbursements (including attorneys’ and experts’ fees and expenses). The Company believes the allegations to be without merit and intends to vigorously defend against them.

Accounting Treatment

The Merger will be accounted for as a “purchase transaction” for financial accounting purposes.

Material U.S. Federal Income Tax Consequences of the Merger

The following discussion is a summary of material U.S. federal income tax consequences of the Merger that may be relevant to U.S. Holders and Non-U.S. Holders (each as defined below) of shares of Company 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 at any time, possibly with retroactive effect. This discussion is limited to holders who hold their shares of Company Common Stock as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment purposes).

This summary is general in nature and does not address all of the tax consequences that may be relevant to holders in light of their particular circumstances. For example, this discussion does not address tax consequences that may be applicable to:

 

   

holders who may be subject to special treatment under U.S. federal income tax laws, such as banks or other financial institutions; tax-exempt organizations; retirement or other tax deferred accounts; S corporations, partnerships or any other entities or arrangements treated as partnerships or pass-through entities for U.S. federal income tax purposes (or an investor in a partnership, S corporation or other

 

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pass-through entity); insurance companies; mutual funds; dealers in stocks and securities; traders in securities that elect to use the mark-to-market method of accounting for their securities; regulated investment companies; real estate investment trusts; entities subject to the U.S. anti-inversion rules; certain former citizens or long-term residents of the United States; or, except as noted below, holders that own or have owned (directly, indirectly or constructively) five percent or more of the Company Common Stock (by vote or value);

 

   

controlled foreign corporations, passive foreign investment companies, corporations that accumulate earnings to avoid U.S. federal income tax; and pass-through entities, or investors in such entities;

 

   

holders holding the shares as part of a hedging, constructive sale or conversion, straddle or other risk reduction transaction;

 

   

holders whose shares constitute qualified small business stock within the meaning of Section 1202 of the Code;

 

   

holders that received their shares of Company Common Stock in a compensatory transaction, through a tax qualified retirement plan or pursuant to the exercise of options or warrants (including under any of the Company Equity Plans);

 

   

holders who own an equity interest, actually or constructively, in Parent or the Surviving Corporation following the Merger;

 

   

U.S. Holders whose “functional currency” is not the U.S. dollar;

 

   

holders who hold their Company Common Stock through a bank, financial institution or other entity, or a branch thereof, located, organized or resident outside the United States; or

 

   

holders subject to special tax accounting rules as a result of any item of gross income with respect to the shares of Company Common Stock being taken into account in an “applicable financial statement” (as defined in the Code).

This summary does not describe any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction and does not consider any aspects of U.S. federal tax law other than income taxation, such as the U.S. federal estate, or gift tax or the alternative minimum tax. In addition, this summary does not address the Medicare tax on net investment income.

If a partnership (including an entity or arrangement, domestic or non-U.S., treated as a partnership for U.S. federal income tax purposes) is a beneficial owner of shares of Company Common Stock, then the tax treatment of a partner in such partnership will generally depend upon the status of the partner and the activities of the partner and the partnership. Partnerships holding shares of Company 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, and no assurance can be given that the IRS will agree with the views expressed herein, or that a court will not sustain any challenge by the IRS in the event of litigation.

THE FOLLOWING SUMMARY IS FOR GENERAL INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR CAREFUL TAX PLANNING AND ADVICE. WE URGE YOU TO CONSULT YOUR OWN TAX ADVISOR WITH RESPECT TO THE SPECIFIC TAX CONSEQUENCES TO YOU IN CONNECTION WITH THE MERGER IN LIGHT OF YOUR OWN PARTICULAR CIRCUMSTANCES, INCLUDING U.S. FEDERAL ESTATE, GIFT AND OTHER NON-INCOME TAX CONSEQUENCES, AND TAX CONSEQUENCES UNDER STATE, LOCAL OR NON-U.S. TAX LAWS.

 

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U.S. Holders

For purposes of this discussion, a “U.S. Holder” is a beneficial owner of shares of Company Common Stock that is for U.S. federal income tax purposes:

 

   

an individual who is a citizen or resident of the United States;

 

   

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;

 

   

an estate, the income of which is subject to U.S. federal income taxation regardless of its source; or

 

   

a trust (1) 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 (2) that has a valid election in effect under applicable Treasury Regulations to be treated as a U.S. person.

The receipt of cash by a U.S. Holder in exchange for shares of Company Common Stock pursuant to the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, such U.S. Holder’s gain or loss will be equal to the difference, if any, between the amount of cash received and the U.S. Holder’s adjusted tax basis in the shares surrendered pursuant to the Merger. Gain or loss must be determined separately for each block of shares (that is, shares acquired at the same cost in a single transaction). A U.S. Holder’s adjusted tax basis generally will equal the amount that such U.S. Holder paid for the shares. Such gain or loss 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 one year at the time of the completion 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 (including individuals). The deductibility of capital losses is subject to limitations.

Non-U.S. Holders

The following is a summary of the material U.S. federal income tax consequences that will apply to you if you are a Non-U.S. Holder. The term “Non-U.S. Holder” means a beneficial owner of Company Common Stock that is, for U.S. federal income tax purposes, not a U.S. Holder.

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:

 

   

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 or fixed base 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 income tax treaty);

 

   

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 will be subject to U.S. federal income tax at a rate of 30% (or a lower rate under an applicable income tax treaty), which gain may be offset by certain U.S. source capital losses of such Non-U.S. Holder; or

 

   

the Company is or has been a “United States real property holding corporation” as such term is defined in Section 897(c) of the Code (“USRPHC”), at any time within the shorter of the five-year period preceding the Merger or such Non-U.S. Holder’s holding period with respect to the applicable shares of Company Common Stock (the “Relevant Period”) and, if shares of Company Common Stock are regularly traded on an established securities market (within the meaning of Section 897(c)(3) of the Code), such Non-U.S. Holder owns (directly, indirectly or constructively) more than 5% of the Company Common Stock at any time during the Relevant Period, in which case such gain will be subject to U.S. federal income tax at rates generally applicable to U.S. persons (as described in the first

 

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bullet point above), except that the branch profits tax will not apply. Generally, a corporation is a USRPHC if the fair market value of its U.S. real property interests (as defined in the Code) equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests plus its other assets used or held for use in a trade or business. For this purpose, U.S. real property interests generally include land, improvements and associated personal property. Although there can be no assurances in this regard, we believe that we are not, and have not been, a USRPHC at any time during the five-year period preceding the Merger. Non-U.S. Holders are encouraged to consult their own tax advisors regarding the possible consequences to them if we are a USRPHC.

Information Reporting and Backup Withholding

Information reporting and backup withholding (currently, at a rate of 24%) may apply to the proceeds received by a holder pursuant to the Merger. Backup withholding generally will not apply to (1) a U.S. Holder that furnishes a correct taxpayer identification number and certifies that such U.S. Holder is not subject to backup withholding on IRS Form W-9 (or a substitute or successor form) or (2) a Non-U.S. Holder that (i) provides a certification of such Non-U.S. Holder’s foreign status on the appropriate series of IRS Form W-8 (or a substitute or successor form) or (ii) otherwise establishes an exemption from backup withholding. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will 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.

Withholding on Foreign Entities

Sections 1471 through 1474 of the Code (“FATCA”), impose a U.S. federal withholding tax of 30% on certain payments made to a “foreign financial institution” (as specially defined under those rules) unless such institution enters into an agreement with the U.S. government to withhold on certain payments and to collect and provide to the U.S. tax authorities substantial information regarding certain U.S. account holders of such institution (which includes certain equity and debt holders of such institution, as well as certain account holders that are foreign entities with U.S. owners) or an exemption applies. FATCA also generally will impose a U.S. federal withholding tax of 30% on certain payments made to a “non-financial foreign entity” (as specially defined under those rules) unless such entity provides the withholding agent a certification identifying certain direct and indirect U.S. owners of the entity or an exemption applies. An intergovernmental agreement between the United States and an applicable foreign country may modify these requirements. Under certain circumstances, a Non-U.S. Holder might be eligible for refunds or credits of such taxes. Recently released proposed Treasury Regulations (upon which taxpayers may rely until final Treasury Regulations are issued) eliminate the federal withholding tax of 30% applicable to the gross proceeds of a sale or other disposition of Company Common Stock under FATCA. Holders of Company Common Stock are encouraged to consult with their own tax advisors regarding the possible implications of FATCA on the disposition of Company Common Stock pursuant to the Merger.

Regulatory Approvals Required for the Merger

General

The Company (to the extent required), Parent and Merger Sub have agreed to (and to cause their respective affiliates, as applicable to) (i) file with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the U.S. Department of Justice (the “DOJ”) a Notification and Report Form relating to the Merger Agreement and the Merger as required by the HSR Act within ten business days following the date of the Merger Agreement; and (ii) as promptly as practicable following the date of the Merger Agreement, file such notification filings, forms and submissions, including any draft notifications in jurisdictions requiring pre-notification, with any governmental authority as are required by other applicable antitrust laws in connection with the Merger, and, subject to certain limitations, to take all action necessary, proper or advisable to cause the expiration or

 

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termination of the applicable waiting periods pursuant to the HSR Act and any other applicable antitrust laws and obtain any required consents pursuant to the HSR Act or any applicable antitrust law, in each case as promptly as practicable and, in any event, prior to the Termination Date.

HSR Act and U.S. Antitrust Matters

Under the HSR Act and the rules promulgated thereunder, certain acquisitions may not be completed until information has been furnished to the Antitrust Division of the DOJ and the FTC, and the applicable HSR Act waiting period requirements have been satisfied. The waiting period under the HSR Act is 30 calendar days, unless the waiting period is terminated earlier or extended by a second request for additional information. The Merger is subject to the provisions of the HSR Act and therefore cannot be completed until the Company and Permira file a notification and report form with the FTC and the DOJ under the HSR Act and the applicable waiting period has expired or been terminated. The Company and Permira made the necessary filings with the FTC and the DOJ on August 21, 2019 and made a request for early termination of the HSR Act waiting period, and on September 3, 2019, the FTC granted early termination of the applicable waiting period under the HSR Act.

At any time before or after consummation of the Merger, notwithstanding the termination or expiration of the waiting period under the HSR Act, the FTC or the DOJ could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the completion 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 completion of the Merger, and notwithstanding the termination or expiration of the waiting period under the HSR Act, any state or foreign jurisdiction 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 completion of the Merger or seeking divestiture of substantial assets of the Company (or its subsidiaries), or Parent or Merger Sub (or their respective controlled affiliates). Private parties may also seek to take legal action under the antitrust laws under certain circumstances. We cannot be certain that a challenge to the Merger will not be made or that, if a challenge is made, we will prevail.

European Commission Merger Regulation

On August 27, 2019, Permira made a referral request to the Commission requesting that the Commission assume jurisdiction to review the Merger in lieu of certain Member States. Following a pre-notification period and the formal filing of the referral request, the Member States have 15 working days within which to state their objection. The Non-Opposition Period ends on October 14, 2019.

Unless a Member State objects during the Non-Opposition Period (in which case the Merger will remain subject to review by certain Member States), the Commission will assume jurisdiction. Following a pre-notification period, the Commission has 25 working days to clear the Merger, either unconditionally or subject to accepted remedies (in which case the review period will be extended to 35 working days), or to open an in-depth investigation.

Other Factors

One or more governmental agencies may impose a condition, restriction, qualification, requirement or limitation when it grants the necessary approvals and consents. Third parties may also seek to intervene in the regulatory process or litigate to enjoin or overturn regulatory approvals, any of which actions could significantly impede or even preclude obtaining required regulatory approvals.

Although we expect that all required regulatory clearances and approvals will be obtained, we cannot assure you that these regulatory clearances and approvals will be timely obtained, obtained at all or that the granting of these regulatory clearances and approvals will not involve the imposition of additional conditions on the completion of the Merger, including the requirement to divest assets, or require changes to the terms of the Merger Agreement. These conditions or changes could result in the conditions to the Merger not being satisfied.

 

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PROPOSAL 1: ADOPTION OF THE MERGER AGREEMENT

The following summary describes the material provisions of the Merger Agreement. The descriptions of the Merger Agreement in this summary and elsewhere in this proxy statement are not complete and are qualified in their entirety by reference to the Merger Agreement, a copy of which is attached to this proxy statement as Annex A and incorporated into this proxy statement by reference. You should carefully read and consider the entire Merger Agreement, which is the legal document that governs the Merger, 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 of the Merger Agreement and not by this summary or any other information contained in this proxy statement.

The representations, warranties, covenants and agreements described below and included in the Merger Agreement (1) were made only for purposes of the Merger Agreement and as of specific dates, (2) were made solely for the benefit of the parties to the Merger Agreement and (3) may be subject to important qualifications, limitations and supplemental information agreed to by the Company, Parent and Merger Sub in connection with negotiating the terms of the Merger Agreement. In addition, the representations and warranties have been included in the Merger Agreement for the purpose of allocating contractual risk among the Company, Parent and Merger Sub rather than to establish matters as facts, and may be subject to standards of materiality applicable to such parties that differ from those applicable to investors. Stockholders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, Parent or Merger Sub or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement. In addition, you should not rely on the covenants in the Merger Agreement as actual limitations on the respective businesses of the Company, Parent and Merger Sub, because the parties may take certain actions that are either expressly permitted in the confidential disclosure letter to the Merger Agreement or as otherwise consented to by the appropriate party, which consent may be given without prior notice to the public. The Merger Agreement is described below, and included as Annex A, only to provide you with information regarding its terms and conditions, and not to provide any other factual information regarding the Company, Parent, Merger Sub or their respective businesses. Accordingly, the representations, warranties, covenants and other agreements in the Merger Agreement should not be read alone, and you should read the information provided elsewhere in this document and in our filings with the SEC regarding the Company and our business.

Effects of the Merger; Directors and Officers; Certificate of Incorporation; Bylaws

The Merger Agreement provides that, subject to the terms and conditions of the Merger Agreement, and in accordance with the DGCL, at the Effective Time: (1) Merger Sub will be merged with and into the Company, with the Company continuing as the Surviving Corporation and a wholly owned direct subsidiary of Parent; and (2) the separate corporate existence of Merger Sub will thereupon cease. From and after the Effective Time, the Surviving Corporation will possess all properties, rights, privileges, powers and franchises of the Company and Merger Sub, and all of the debts, liabilities and duties of the Company and Merger Sub will become the debts, liabilities and duties of the Surviving Corporation.

At the Effective Time, the board of directors of the Surviving Corporation will consist of the directors of Merger Sub as of immediately prior to the Effective Time, to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their successors are duly elected or appointed and qualified. From and after the Effective Time, the officers of the Company at the Effective Time will be the officers of the Surviving Corporation, until their successors are duly appointed. At the Effective Time, the certificate of incorporation of the Company as the Surviving Corporation will be amended and restated in its entirety to read as set forth in Exhibit A attached to the Merger Agreement and the bylaws of Merger Sub, as in effect immediately prior to the Effective Time, will become the bylaws of the Surviving Corporation (except that all references to Merger Sub shall be automatically amended and shall become references to the Surviving

 

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Corporation), until thereafter amended. Following the completion of the Merger, the Company Common Stock will be delisted from the NYSE, deregistered under the Exchange Act and cease to be publicly traded.

Closing and Effective Time

The closing of the Merger will take place no later than (a) the fourth business day following the satisfaction or waiver of all conditions to closing of the Merger (described below under the caption “—Conditions to the Closing of the Merger”), other than those conditions to be satisfied at the closing of the Merger, but subject to the satisfaction or waiver of such conditions, or (b) such other time as Parent, Merger Sub and the Company mutually agree in writing; provided, however that the closing of the Merger can only occur after September 21, 2019. On the date of the closing of the Merger, the parties will file a certificate of merger with the Secretary of State for the State of Delaware as provided under the DGCL. The Merger will become effective upon the filing of the certificate of merger, or at such later time as is agreed by the parties and specified in the certificate of merger.

Merger Consideration

Company Common Stock

At the Effective Time, and without any action required by any stockholder, each share of Company Common Stock (other than Excluded Shares, which include, for example, shares of Company Common Stock owned by stockholders who have properly exercised their statutory rights of appraisal under Section 262 of the DGCL) outstanding as of immediately prior to the Effective Time will be automatically cancelled, extinguished and converted into the right to receive the Per Share Merger Consideration, without interest thereon.

Outstanding Company Options, Company RSUs and Company PSUs

The Merger Agreement provides that outstanding equity awards of the Company will be treated as follows at the Effective Time:

 

   

each Company Option that is outstanding and unexercised immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of (1) the Per Share Merger Consideration, less the exercise price per share attributable to such Company Option, multiplied by (2) the total number of shares of Company Common Stock issuable upon exercise in full of such Company Option; provided that if the exercise price per share of any such Company Option is equal to or greater than the Per Share Merger Consideration, such Company Option will be cancelled for no consideration;

 

   

each Company RSU that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of (1) the Per Share Merger Consideration, multiplied by (2) the total number of shares of Company Common Stock subject to such Company RSU; and

 

   

each Company PSU that is outstanding immediately prior to the Effective Time will be cancelled and automatically converted into the right to receive an amount in cash, without interest thereon, equal to the product of: (1) the Per Share Merger Consideration, multiplied by (2) the total number of shares of Company Common Stock subject to such Company PSU, with any performance-based vesting conditions deemed achieved at the greater of (x) target levels of performance and (y) actual levels of performance, to be measured, without any pro-ration, by the Company’s Compensation Committee as of immediately prior to the Effective Time.

Consideration payable to holders of Company Options, Company RSUs and Company PSUs (collectively, the “Equity Awards”) will be made no later than five business days following the closing of the Merger, through the

 

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payroll system or payroll provider of the Company or the Surviving Corporation, net of any required withholding of taxes and, to the extent any such amounts relate to a Company RSU or Company PSU that is nonqualified deferred compensation subject to Section 409A of the Code, the Surviving Corporation will pay such amounts which will accrue interest at the applicable federal rate from and following the Closing Date at the earliest time permitted under the terms of the applicable agreement, plan or arrangement relating to such Company RSU or Company PSU that will not trigger a Tax or penalty under Section 409A of the Code.

Exchange and Payment Procedures

Prior to the closing of the Merger, Parent will designate a nationally recognized bank or trust company reasonably acceptable to the Company (the “Payment Agent”) to act as payment agent for the Merger. At or prior to the Effective Time, Parent will deposit or cause to be deposited with the Payment Agent cash sufficient to pay the aggregate consideration to which holders of Company Common Stock (other than holders of Dissenting Company Shares) become entitled pursuant to the Merger Agreement.

Promptly following the Effective Time (and in any event within three business days), the Payment Agent will send to each holder of record of one or more certificates that represent issued and outstanding shares of Company Common Stock (other than Dissenting Company Shares and Owned Company Shares) a letter of transmittal in customary form and instructions for use in effecting the surrender of such holder’s shares of Company Common Stock represented by such holder’s certificates in exchange for the Per Share Merger Consideration payable in respect of such shares. No holder of record of uncertificated shares of Company Common Stock will be required to deliver a certificate or an executed letter of transmittal to the Payment Agent in order to receive the Per Share Merger Consideration payable in respect of such shares.

If any cash deposited with the Payment Agent is not claimed within one year following the Effective Time, such cash will be returned to Parent, upon demand, and any holders of Company Common Stock who have not complied with the exchange procedures in the Merger Agreement will thereafter look only to Parent as general creditor for payment of the Merger Consideration. Any cash deposited with the Payment Agent that remains unclaimed five years following the Effective Time will, to the extent permitted by applicable law, become the property of the Surviving Corporation free and clear of any claims or interest of any holder (and their successors, assigns or personal representatives) previously entitled thereto.

Representations and Warranties

The Merger Agreement contains representations and warranties of the Company, Parent and Merger Sub.

Some of the representations and warranties in the Merger Agreement made by the Company are qualified as to “materiality” or “Company Material Adverse Effect.” For purposes of the Merger Agreement, “Company Material Adverse Effect” means any change, event, effect, condition, development, state of facts or circumstance that, individually or in the aggregate, when taken together with any other change, event, effect, condition, development, state of facts or circumstance, has a material adverse effect on (A) the assets, business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole or (B) the ability of the Company to consummate the Merger and any other transaction contemplated by the Merger Agreement prior to the Termination Date; provided that none of the following, and no changes, events, effects or circumstances arising out of or resulting from the following (in each case, by itself or when aggregated) will be deemed to be or constitute a Company Material Adverse Effect under clause (A) above or will be taken into account when determining whether a Company Material Adverse Effect under clause (A) above has occurred or may, would or could occur (subject to the limitations set forth below):

 

  (i)

changes in general economic conditions, or changes in conditions in the United States, global, international or regional economy generally;

 

  (ii)

changes in conditions in the financial markets, credit markets, capital markets or international trade, including (A) changes in interest rates or credit ratings; (B) changes in exchange rates for the

 

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  currencies of any country; or (C) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market;

 

  (iii)

changes in conditions in the industries in which the Company and its subsidiaries conduct business;

 

  (iv)

changes in regulatory, legislative or political conditions;

 

  (v)

any geopolitical conditions, outbreak of hostilities, acts of war (whether or not declared), sabotage, cyberterrorism (including by means of cyber-attack by or sponsored by a governmental authority), terrorism or military actions (including any escalation or general worsening of any such hostilities, acts of war, sabotage, cyberterrorism, terrorism or military actions);

 

  (vi)

earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires or other natural disasters, weather conditions, pandemics and other force majeure events;

 

  (vii)

any change, event, effect, condition, development, state of facts or circumstance to the extent resulting from the negotiation, execution, delivery or performance of the Merger Agreement or the announcement of the Merger Agreement or the pendency of the Merger, including the impact thereof on the relationships, contractual or otherwise, of the Company and its subsidiaries with customers, suppliers, lenders, lessors, business partners, employees or vendors, except in relation to the representations and warranties set forth in Section 3.5 and Section 3.6 of the Merger Agreement;

 

  (viii)

the compliance by any party with the terms of the Merger Agreement, including any action taken or refrained from being taken pursuant to the Merger Agreement;

 

  (ix)

any action taken or refrained from being taken, in each case to the extent Parent has expressly approved, consented to or requested in writing following August 7, 2019;

 

  (x)

changes or proposed changes in GAAP or other accounting standards or in any applicable Laws (or the enforcement or interpretation of any of the foregoing);

 

  (xi)

changes in the price or trading volume of the Company Common Stock, in and of itself (it being understood that the underlying cause of such change may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);

 

  (xii)

any failure, in and of itself, by the Company and its subsidiaries to meet (A) any public estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period or (B) any budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that the underlying cause of any such failure may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);

 

  (xiii)

the availability or cost of equity, debt or other financing to Parent or Merger Sub;

 

  (xiv)

any transaction litigation or other legal proceeding threatened, made or brought by any of the current or former stockholders (on their own behalf or on behalf of the Company) against the Company, any of its executive officers or other employees or any member of the Board of Directors arising out of the Merger or the transactions contemplated by the Merger Agreement; and

 

  (xv)

the identity of, or any facts or circumstances relating to, the Sponsors, Parent, Merger Sub, or the respective Affiliates of the foregoing, the respective financing sources of or investors in the foregoing, or the respective plans or intentions of the foregoing, with respect to the Company or its business;

except, in each case of clauses (i), (ii), (iii), (iv), (v), (vi) and (x) above, to the extent that such changes, events, effects, conditions, developments, states of facts or circumstances has had a disproportionate adverse effect on the Company relative to other companies of a similar size operating in the industries in which the Company and its subsidiaries conduct business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether a Company Material Adverse Effect has occurred.

 

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In the Merger Agreement, the Company has made customary representations and warranties to Parent and Merger Sub that are subject, in some cases, to specified exceptions and qualifications contained in the Merger Agreement. These representations and warranties relate to, among other things:

 

   

due organization, valid existence, good standing and authority and qualification to conduct business with respect to the Company and its subsidiaries;

 

   

corporate power and authority of the Company to enter into and perform the Merger Agreement, the enforceability of the Merger Agreement and the absence of conflicts with laws, the Company’s organizational documents and the Company’s contracts;

 

   

the organizational documents of the Company and its subsidiaries;

 

   

the necessary approval of the Board of Directors;

 

   

the rendering of Morgan Stanley’s opinion to the Board of Directors;

 

   

the inapplicability of anti-takeover statutes to the Merger;

 

   

the necessary vote of stockholders in connection with the Merger Agreement;

 

   

the absence of any conflict, violation or material alteration of any organizational documents, existing contracts or laws applicable to the Company or its subsidiaries or the resulting creation of any lien upon any properties or assets due to the performance of the Merger Agreement;

 

   

required consents, approvals and regulatory filings in connection with the Merger Agreement and performance thereof;

 

   

the capital structure of the Company as well as the ownership and capital structure of its subsidiaries;

 

   

the absence of any undisclosed exchangeable security, option, warrant or other right convertible into Company Common Stock or equity or voting interests of the Company or any of its subsidiaries;

 

   

the absence of any contract relating to the voting of, requiring registration of, or granting any preemptive rights, anti-dilutive rights or rights of first refusal or other similar rights with respect to any of the Company’s securities;

 

   

the accuracy and required filings of the Company’s SEC filings and financial statements since January 1, 2017;

 

   

the Company’s disclosure controls and procedures;

 

   

the Company’s internal accounting controls and procedures;

 

   

the absence of specified undisclosed liabilities;

 

   

the conduct of the business of the Company and its subsidiaries is, in all material respects, in the ordinary course since March 31, 2019, and the absence of any change, event, development or state of circumstances that has had or would be reasonably expected to have, individually or in the aggregate, a Company Material Adverse Effect since March 31, 2019;

 

   

the existence and enforceability of specified categories of the Company’s material contracts, and the absence of any breach or default by the Company and its subsidiaries in relation to such material contracts;

 

   

real property owned or leased by the Company and its subsidiaries;

 

   

environmental matters;

 

   

intellectual property matters and compliance with information privacy and security laws;

 

   

tax matters;

 

   

employee benefit plans;

 

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labor matters;

 

   

the Company’s compliance with laws, including with respect to certain regulatory matters;

 

   

the absence of litigation or orders;

 

   

insurance matters; and

 

   

payment of fees to brokers in connection with the Merger.

In the Merger Agreement, Parent and Merger Sub have made customary representations and warranties to the Company that are subject, in some cases, to specified exceptions and qualifications contained in the Merger Agreement. These representations and warranties relate to, among other things:

 

   

due organization, good standing and authority and qualification to conduct business with respect to Parent and Merger Sub;

 

   

Parent’s and Merger Sub’s corporate authority to enter into and perform the Merger Agreement, the enforceability of the Merger Agreement and the absence of conflicts with laws, Parent’s or Merger Sub’s organizational documents and Parent’s or Merger Sub’s contracts;

 

   

the absence of any conflict, violation or material alteration of any organizational documents, existing contracts or applicable laws or the resulting creation of any lien upon Parent or Merger Sub’s properties or assets due to the performance of the Merger Agreement;

 

   

required consents and regulatory filings in connection with the Merger Agreement;

 

   

the absence of litigation or orders;

 

   

ownership of Company Common Stock;

 

   

payment of fees to brokers in connection with the Merger;

 

   

operations of Parent and Merger Sub;

 

   

the absence of any required consent of holders of voting interests in Parent or Merger Sub;

 

   

delivery and enforceability of the Fee Funding Agreement;

 

   

matters with respect to Parent’s financing and sufficiency of funds;

 

   

the absence of agreements or arrangements between Parent and members of the Board of Directors or Company management; and

 

   

the solvency of Parent and the Surviving Corporation following the consummation of the Merger and the transactions contemplated by the Merger Agreement.

The representations and warranties contained in the Merger Agreement will not survive the consummation of the Merger.

Conduct of Business Pending the Merger

The Merger Agreement provides that, except: (1) as expressly contemplated by the Merger Agreement; (2) as set forth in the confidential disclosure letter to the Merger Agreement; (3) as required by applicable law; or (4) as approved in writing by Parent (which approval will not be unreasonably withheld, conditioned or delayed), during the period of time between the date of the signing of the Merger Agreement and the earlier to occur of the Effective Time and the termination of the Merger Agreement pursuant to its terms, the Company will, and will cause each of its subsidiaries to, use reasonable best efforts to:

 

   

conduct its business in all material respects in the ordinary course of business consistent with past practice; and

 

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preserve intact in all material respects its current business organization, ongoing businesses and its significant relationships with commercial counterparties, and keep available the services of its current officers and key employees.

In addition, the Company has also agreed that, except: (1) as expressly contemplated by the Merger Agreement; (2) as set forth in the confidential disclosure letter to the Merger Agreement; (3) as required by applicable law; or (4) as approved in writing by Parent (which approval will not be unreasonably withheld, conditioned or delayed), during the period of time between August 7, 2019 and the earlier to occur of the Effective Time and the termination of the Merger Agreement pursuant to its terms, the Company will not, and will not permit any of its subsidiaries to, among other things:

 

   

amend or waive any provision of any organizational documents of the Company or its subsidiaries;

 

   

propose or adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;

 

   

issue, sell, encumber, deliver, grant options or rights to purchase or receive, pledge, dispose of or deliver or agree or commit to issue, sell or deliver any securities of the Company, subject to certain exceptions;

 

   

reclassify, split, combine, subdivide or redeem, repurchase, purchase or otherwise acquire or amend the terms of, directly or indirectly, any of its or its subsidiaries’ capital stock or other equity or voting interest, subject to certain exceptions;

 

   

declare, set aside or pay any dividend or other distribution (whether in cash, shares or property or any combination thereof) in respect of any shares of capital stock or other equity or voting interest, or make any other actual, constructive or deemed distribution in respect of the shares of capital stock or other equity or voting interest, subject to certain exceptions;

 

   

incur, assume or suffer any indebtedness or issue any debt securities, subject to certain exceptions;

 

   

except as required by the terms of any employee benefit plan in effect as of August 7, 2019, (i) enter into, adopt, amend or modify in any material respect, or terminate, any material employee benefit plan, other than in conjunction with annual renewal or plan design changes for health or other welfare benefit plans that, in each case, are in the ordinary course of business consistent with past practice and which do not materially increase the cost to the Company or its subsidiaries, (ii) increase the compensation or benefits of any current or former director, officer, employee or other individual service provider other than increases in base salary or wage rate in the ordinary course of business consistent with past practice to any current employee with annual base compensation less than $200,000 or (iii) grant or provide any severance or termination payments or benefits to any current or former director, officer, employee or other individual service provider (other than reasonable payments or benefits in the ordinary course of business consistent with past practice);

 

   

enter into, adopt, renew, extend or amend any collective bargaining agreement or recognize or certify any labor organization or group of employees as the bargaining representative for any employees of the Company or its subsidiaries;

 

   

other than in the ordinary course of business, terminate the employment of any employee of the Company or any of its subsidiaries with an annual base salary in excess of $200,000 (other than for cause) or hire any individual as an employee of the Company or any of its subsidiaries with an annual base salary in excess of $200,000;

 

   

settle any pending or threatened legal proceeding, subject to certain exceptions;

 

   

change the Company’s financial methods or principles or any accounting period in any material respect, subject to certain exceptions;

 

   

(i) make, change or revoke any material tax election or change any material aspect of its method of tax accounting, (ii) settle or compromise any material tax claim or assessment, (iii) enter into any “closing

 

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agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with respect to any material tax or request any material tax ruling or (iv) surrender a right to a material tax refund;

 

   

incur or commit to incur certain capital expenditures, subject to certain exceptions;

 

   

assign, waive any material right, materially modify or amend in a manner adverse to the Company, or terminate any material contract or lease, or enter into any contract that would constitute a material contract or lease of the Company if entered into on the date of the Merger Agreement, subject to certain exceptions;

 

   

enter into any contract that involves, establishes or governs a material joint venture, profit sharing, partnership, joint development, strategic alliance or other similar agreement;

 

   

unless replaced with a comparable coverage, terminate or fail to use reasonable best efforts to exercise renewal rights with respect to any material insurance policy;

 

   

engage in any transaction with, or enter into any contract, agreement, arrangement or understanding with any affiliate of the Company or other person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404;

 

   

effectuate any action that would trigger notice obligations under the U.S. Worker Adjustment and Retraining Notification Act of 1988 or any similar state, local or foreign law;

 

   

acquire any interest in any person or any division, assets, properties, businesses or equity securities thereof (including by merger, consolidation or acquisition of stock or assets), other than (i) in or from any wholly owned subsidiary of the Company, (ii) in the ordinary course of business or (iii) that do not exceed $2,000,000 individually or $10,000,000 in the aggregate;

 

   

sell, assign, license, lease, transfer, abandon or otherwise dispose of, or create any lien on (other than any “Permitted Lien” as defined in the Merger Agreement), or otherwise dispose of, any of the Company’s or its subsidiaries’ assets (other than intellectual property), subject to certain exceptions;

 

   

sell, assign, license, lease, transfer, abandon, dedicate to the public, or otherwise dispose of any rights to any material intellectual property, subject to certain exceptions;

 

   

waive the restrictive covenant obligations of any officer or employee of the Company or any of its subsidiaries whose annual base compensation in excess of $200,000; or

 

   

enter into agreements, authorize, or commit to do any of the foregoing.

The “Go Shop” Period—Solicitation of Other Offers

Under the Merger Agreement, from August 7, 2019 until 12:01 a.m., New York City time, on September 22, 2019 (the “No-Shop Period Start Date”), the Company and its representatives have the right to, among other things: (1) solicit, initiate, propose or induce the making, submission or announcement of, or encourage, facilitate or assist, any inquiry, proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal, including by providing information (including non-public information and data) relating to the Company or any of its subsidiaries and affording access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its subsidiaries to any person that has entered into an Acceptable Confidentiality Agreement, and (2) engage in, enter into, continue or otherwise participate in, any discussions or negotiations with any Person (and their respective Representatives, including potential financing sources of such Person) with respect to any Acquisition Proposals (or inquiries, proposals or other efforts that could reasonably be expected to lead to an Acquisition Proposal) and cooperate with or assist any such inquiries, proposals or other efforts to make any Acquisition Proposals or other proposals that could reasonably be expected to lead to Acquisition Proposals.

Any non-public information provided to any person regarding an inquiry, proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal must also be provided to Parent and Merger Sub

 

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to the extent not previously made available. If such person is a competitor of the Company and its subsidiaries, any commercially sensitive non-public information must be shared in accordance with “clean room” or other similar procedures.

If the Company terminates the Merger Agreement for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the Cut-Off Time, the Company is required to pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement under any other circumstance for the purpose of entering into an agreement in respect of a Superior Proposal, the Company is required to pay a termination fee of $61,600,430 to Parent for such termination. For more information, please see the section of this proxy statement below captioned “—Termination Fees.”

From August 7, 2019 until the No-Shop Period Start Date, the Company shall as promptly as reasonably practicable (and, in any event, within 48 hours) notify Parent in writing if the Company, any of its subsidiaries or any of their respective representatives receive any written or verbal Acquisition Proposal. In addition, within 24 hours after the No-Shop Period Start Date, the Company shall notify Parent in writing of each person that the Company considers to be an Excluded Party as of the No-Shop Period Start Date.

For purposes of this proxy statement and the Merger Agreement:

“Acceptable Confidentiality Agreement” means any confidentiality agreement containing terms no less restrictive in any material respect on the Company’s counterparty (and its affiliates and representatives) than those contained in the Confidentiality Agreement referred to in the Merger Agreement, except that such confidentiality agreement need not contain any “standstill” or similar provision or otherwise prohibit the making of any Acquisition Proposal.

“Acquisition Proposal” means any bona fide written offer or proposal (other than an offer or proposal by Parent or Merger Sub) to engage in an Acquisition Transaction.

“Acquisition Transaction” means any transaction or series of related transactions (other than the Merger) involving:

 

1.

any direct or indirect purchase or other acquisition by any third party person or group, whether from the Company or any other person(s), of shares of Company Common Stock representing more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any person or group that, if consummated in accordance with its terms, would result in such person or group beneficially owning more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such tender or exchange offer;

 

2.

any direct or indirect purchase or other acquisition by any third party person or group, or stockholders of any such person or group, of more than 20% of the consolidated assets of the Company and its subsidiaries taken as a whole (measured by the fair market value thereof as of the date of such purchase or acquisition); or

 

3.

any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company or any of its subsidiaries pursuant to which any third party person or group, or stockholders of any such person or group, would hold shares of Company Common Stock representing more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such transaction.

“Excluded Party” means any person or group that includes any person or group from whom the Company and its affiliates or any of their respective representatives has received an Acquisition Proposal after the execution and delivery of the Merger Agreement and prior to the No-Shop Period Start Date that the Company Board

 

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determines in good faith, after consultation with outside legal and financial advisors, is, or would reasonably be expected to lead to, a Superior Proposal; provided, however, that any person shall immediately and irrevocably cease to be an Excluded Party if, at any time after the No-Shop Period Start Date, the Acquisition Proposal submitted by such person is withdrawn or terminated or the Board of Directors determines that such Acquisition Proposal no longer is, or no longer would reasonably be expected to lead to, a Superior Proposal; provided, further, that any group and any member of such group shall immediately and irrevocably cease to be an Excluded Party if, at any time after the No-Shop Period Start Date, those persons who were members of such group immediately prior to the No-Shop Period Start Date, together with any affiliates of such persons, cease to constitute at least 25% of the equity financing of such group.

Superior Proposal” means any Acquisition Proposal on terms that the Board of Directors has determined in good faith (after consultation with its financial advisors and outside legal counsel) would reasonably be expected to be consummated in accordance with its terms and would be more favorable, from a financial point of view, to the Company’s stockholders than the Merger (taking into account any legal, regulatory, financial, timing, financing and other aspects of such proposal that the Board of Directors considers relevant and any revisions to the Merger Agreement made or proposed in writing by Parent prior to the time of such determination). For purposes of the reference to an “Acquisition Proposal” in this definition, all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%.”

The “No-Shop” Period—No Solicitation of Offers

From the date of the No-Shop Period Start Date until the earlier to occur of the termination of the Merger Agreement and the Effective Time, the Company and its subsidiaries shall not, and shall not permit their representatives to:

 

1.

solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or offer that constitutes or could reasonably be expected to lead to, an Acquisition Proposal;

 

2.

furnish to any person (other than Parent, Merger Sub or any designees of Parent or Merger Sub) any non-public information relating to the Company or any of its subsidiaries or afford to any person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of the Company or any of its subsidiaries, in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, an Acquisition Proposal or any inquiries or the making of any proposal or offer that could reasonably be expected to lead to an Acquisition Proposal;

 

3.

participate or engage in discussions or negotiations with any person with respect to an Acquisition Proposal (or inquiries, proposals or offers or any other effort or attempt that could reasonably be expected to lead to an Acquisition Proposal); or

 

4.

enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other Contract relating to an Acquisition Transaction, other than certain permitted confidentiality agreements; or

 

5.

agree or resolve to take, or take, any of the actions prohibited by clauses 1-4 above.

In addition, the Company has agreed to request, with 48 hours of the No-Shop Period Start Date, the return or destruction of all non-public information concerning it or its subsidiaries furnished to any person with whom a confidentiality agreement was entered into in connection with its consideration of making an Acquisition Proposal and will cease providing any further information with respect to the Company or any Acquisition Proposal to any such persons or their respective Representatives and will cease all discussions, and terminate all access granted to any data room, with any such persons.

Notwithstanding these restrictions, the Company and its representatives may continue to engage in the activities described in section of this proxy statement captioned “—The “Go Shop” Period—Solicitation of Other Offers”

 

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with respect to any Excluded Party until the earlier of 12:01 am on October 7, 2019 and the time that such Excluded Party ceases to be an Excluded Party in accordance with such definition.

In addition, under certain circumstances and notwithstanding these restrictions, after the No-Shop Period Start Date and prior to the adoption of the Merger Agreement by Company stockholders, the Company may, among other things, provide information to, and engage or participate in negotiations or discussions with, a person in respect of an unsolicited Acquisition Proposal, and otherwise facilitate such Acquisition Proposal or assist such person (and its representatives and financing sources) with such Acquisition Proposal (in each case, if requested by such person and such Acquisition Proposal did not result from any material breach of the Company’s obligations, as described in the immediately preceding paragraph) if (and only if), subject to complying with certain procedures described in the subsequent paragraph, the Board of Directors determines in good faith (after consultation with its financial advisor and its outside legal counsel) that such Acquisition Proposal either constitutes a Superior Proposal or would reasonably be expected to lead to a Superior Proposal, and, in each case, the failure to act in respect of such Acquisition Proposal would be inconsistent with the Board of Directors’ fiduciary duties to stockholders under applicable law.

From the No-Shop Period Start Date until the earlier to occur of the termination of the Merger Agreement pursuant to its terms and the Effective Time, the Company shall as promptly as reasonably practicable (and, in any event, within 48 hours) notify Parent in writing if the Company, any of its subsidiaries or any of their respective representatives (i) receive any Acquisition Proposal or any bona fide inquiries, offers or proposals that could reasonably be expected to lead to an Acquisition Proposal, (ii) are requested to provide any non-public information in connection with an Acquisition Proposal or (iii) are requested to participate in any discussions or negotiations with respect to an Acquisition Proposal. Such notice must include the identity of the person or group making such Acquisition Proposal or bona fide inquiries, offers, proposals or requests; and the material terms and conditions of such offers or proposals (including, if applicable, copies of any written requests, proposals or offers, including proposed contracts, term sheets or letters of intent). The Company must keep Parent reasonably informed, on a prompt basis, of the status and material change to the terms of any such Acquisition Proposal or bona fide inquiries, offers, proposals or requests (including any material amendments thereto) and the status of any related substantive discussions or negotiations.

If the Company terminates the Merger Agreement for the purpose of entering into an agreement with an Excluded Party in respect of a Superior Proposal prior to the Cut-Off Time, the Company is required to pay a termination fee of $25,666,846 to Parent. If the Company terminates the Merger Agreement under any other circumstance for the purpose of entering into an agreement in respect of a Superior Proposal, the Company is required to pay a termination fee of $61,600,430 to Parent for such termination. For more information, please see the section of this proxy statement below captioned “—Termination Fees.”

The Board of Directors’ Recommendation; Company Board Recommendation Change

As described above, and subject to the provisions described below, the Board of Directors has made the recommendation that the holders of shares of Company Common Stock vote “FOR” the proposal to adopt the Merger Agreement. The Merger Agreement provides that the Board of Directors will not effect a Company Board Recommendation Change (as defined below) except as described below.

Prior to the adoption of the Merger Agreement by stockholders, the Board of Directors may not take any action described in the following:

 

   

withhold, withdraw, amend or modify, or publicly propose to withhold, withdraw, amend or modify, the Company Board Recommendation in a manner adverse to Parent (it being understood that it shall be considered a modification adverse to Parent if (1) any Acquisition Proposal structured as a tender or exchange offer is commenced and the Board of Directors fails to publicly recommend against acceptance of such tender or exchange offer by the Company’s stockholders within ten business days

 

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of commencement thereof pursuant to Rule 14d-2 of the Exchange Act or (2) any Acquisition Proposal is publicly announced (other than by the commencement of a tender or exchange offer) and the Board of Directors fails to issue a public press release within ten business days of such public announcement providing that the Board of Directors reaffirms the Company Board Recommendation);

 

   

adopt, approve or recommend, or publicly declare advisable to the Company’s stockholders an Acquisition Proposal or adopt, approve or recommend, or publicly declare advisable or publicly propose to enter into, an any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an Acquisition Transaction, other than an Acceptable Confidentiality Agreement entered into in compliance with the Merger Agreement (any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an Acquisition Transaction, an “Alternative Acquisition Agreement”) or publicly adopt, approve or recommend (or publicly propose to adopt, approve or recommend) an Acquisition Proposal;

 

   

fail to include the Company Board Recommendation in this proxy statement (together with the foregoing two clauses, each a “Company Board Recommendation Change”);

 

   

cause or permit the Company or any of its Subsidiaries to enter into an Alternative Acquisition Agreement.

Notwithstanding the restrictions described above, prior to the adoption of the Merger Agreement by stockholders, the Board of Directors may effect a Company Board Recommendation Change (1) in response to an Intervening Event (as defined below) if the Board of Directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its directors’ fiduciary duties under applicable law; or (2) the Company has an Acquisition Proposal that the Board of Directors has determined in good faith (after consultation with its financial advisors and outside legal counsel) constitutes a Superior Proposal.

The Board of Directors may only effect a Company Board Recommendation Change for an Intervening Event if:

 

   

the Company has provided prior written notice to Parent at least three business days in advance to the effect that the Board of Directors so intends, which notice must specify the basis for such Company Board Recommendation Change, including a reasonably detailed description of the facts and circumstances relating to such Intervening Event;

 

   

prior to effecting such Company Board Recommendation Change, (1) the Company and its representatives, during such three business day period, must have negotiated with Parent and its representatives in good faith (to the extent Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of the Merger Agreement and the Equity Commitment Letter and the Debt Commitment Letter (the “Financing Letters”) in such a manner that would obviate the need to effect a Company Board Recommendation Change in response to such Intervening Event, and (2) the Board of Directors has taken into account any adjustments to the terms and conditions of the Merger Agreement or the Financing Letters proposed by Parent and other information provided by Parent in response to the notice described in clause (1) above;

The Board of Directors may only effect a Company Board Recommendation Change for a Superior Proposal, or cause the Company to terminate the Merger Agreement pursuant to its terms to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, in each case, if:

 

   

the Board of Directors determines in good faith (after consultation with its financial advisors and outside legal counsel) that the failure to do so would be inconsistent with its directors’ fiduciary duties under applicable law;

 

   

the Company has complied in all material respects with its go-shop obligations, no-shop obligations and the obligations to effect a Company Board Recommendation Change, in each case, pursuant to the Merger Agreement; and

 

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(i) the Company has provided prior written notice to Parent at least three business days in advance to the effect that the Board of Directors intends to effect such Company Board Recommendation Change or terminate the Merger Agreement and the basis therefor, including the identity of the person or group making such Acquisition Proposal, the material terms thereof and copies of all material relevant agreements and documents relating to such Acquisition Proposal; (ii) prior to effecting such Company Board Recommendation Change or termination, the Company and its representatives, during the three business day period, must have negotiated with parent and its representatives in good faith (to the extent that Parent desires to so negotiate) to enable Parent to make such adjustments to the terms and conditions of the Merger Agreement and the Financing Letters in such a manner that would obviate the need to effect a Company Board Recommendation Change or termination; and (iii) in determining whether to effect a Company Board Recommendation Change or termination, the Board of Directors has taken into account any adjustments to the terms and conditions of the Merger Agreement or the Financing Letters proposed by Parent and other information provided by Parent in response to the notice described in clause (i) above. Parent shall only be entitled to one three business day notice period for each Acquisition Proposal and no revision, amendment, update or supplement to the terms or conditions of any Acquisition Proposal from the same person or group shall be considered a new Acquisition Proposal for the purposes of this clause.

For purposes of this proxy statement and the Merger Agreement, an “Intervening Event” means any change, event, effect or circumstance or change in circumstances or facts (including any change in probability or magnitude of circumstances) that (i) was not known to the Board of Directors nor reasonably foreseeable by the Board of Directors on the date of the Merger Agreement (or if known by the Board of Directors, the consequences of which were not known or reasonably foreseeable by the Board of Directors as of the date of the Merger Agreement) and becomes known to the Board of Directors prior to the receipt of the required stockholder approval in respect of the Merger, and (ii) does not relate to any Acquisition Proposal or result from a breach of the Merger Agreement by the Company or any of its subsidiaries.

Employee Benefits

The Merger Agreement provides that Parent acknowledges and agrees that a “change of control” (or similar phrase) within the meaning of each of the Company’s benefit plans, as applicable, will occur as of the Effective Time. Further, from and after the Effective Time, the Surviving Corporation will (and Parent will cause the Surviving Corporation to) honor all of the terms of the Company’s benefit plans and compensation and severance arrangements following the Merger in accordance with their terms as in effect immediately prior to the Effective Time; provided that nothing will prohibit the Surviving Corporation from amending or terminating any such benefit plans or compensation or severance arrangements in accordance with their terms or if otherwise required pursuant to applicable law.

In addition, for a period of one year following the Effective Time, each employee who continues employment following the Merger (a “Continuing Employee”) will be provided with (i) a base salary or wage rate that is no less than the base salary or wage rate in effect for such Continuing Employee immediately before the Effective Time, (ii) target cash incentive opportunities that are substantially comparable to the target cash incentive opportunities in effect for such Continuing Employee immediately before the Effective Time, (iii) other employee benefits (excluding any equity or equity-based compensation) that are no less favorable, in the aggregate, than the employee benefits (excluding any equity or equity-based compensation) provided to such Continuing Employee immediately before the Effective Time and (iv) severance and termination benefits that are substantially comparable to those applicable to such Continuing Employee upon a similar termination of employment immediately before the Effective Time.

With respect to each benefit or compensation plan, program, policy, arrangement or agreement that is made available to any Continuing Employee at or after the Effective Time (each such plan, a “New Plan”), the Surviving Corporation and its subsidiaries will (and Parent will cause the Surviving Corporation and its

 

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subsidiaries to) grant to such Continuing Employee credit for all service with the Company and its subsidiaries prior to the Effective Time for purposes of eligibility to participate, vesting and determination of the level of benefits (but not for purposes of benefit accruals), except to the extent that it would result in duplication of coverage or benefits for the same period of service. In addition, and without limiting the generality of the foregoing, (i) each Continuing Employee will be immediately eligible to participate, without any waiting period, in any and all New Plans to the extent that coverage pursuant to any such New Plan replaces coverage pursuant to a corresponding Company employee benefit plan (such plans, the “Old Plans”); (ii) for purposes of each New Plan providing life insurance, medical, dental, pharmaceutical, vision or disability benefits, the Surviving Corporation and its Subsidiaries will cause all waiting periods, pre-existing condition exclusions, evidence of insurability requirements and actively-at-work or similar requirements of such New Plan to be waived for the Continuing Employees and their covered dependents; (iii) for purposes of each New Plan providing medical, dental, pharmaceutical, or vision benefits, the Surviving Corporation and its subsidiaries will cause any eligible expenses incurred by the Continuing Employees and their covered dependents during the portion of the plan year of the Old Plan ending on the date that Continuing Employees’ participation in the corresponding New Plan begins to be given full credit pursuant to such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Continuing Employees and their covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan; and (iv) the Surviving Corporation and its subsidiaries will credit the accounts of the Continuing Employees pursuant to any New Plan that is a flexible spending account plan with any unused balances in the account of such Continuing Employees under the Old Plan that is a flexible spending account plan.

Notwithstanding anything in the Merger Agreement to the contrary, the terms and conditions of employment for any Continuing Employees covered by a collective bargaining agreement will be governed by the applicable collective bargaining agreement until such collective bargaining agreement otherwise expires pursuant to its terms or is modified by the parties thereto. Prior to the Closing Date, the Company and its subsidiaries will use their respective reasonable best efforts to satisfy all pre-Closing legal or contractual requirements to provide notice or information to, or to enter into any consultation procedure with, any labor organization that represents any employee of the Company or its subsidiaries in connection with the transactions contemplated by the Merger Agreement.

Parent agrees that it will, or will cause the Surviving Corporation, to provide each participant in an annual cash incentive plan who remains employed with the Surviving Corporation or its subsidiaries through the end of the year during which the Effective Time occurs, with an annual cash incentive award for such year based on the actual performance for such year in accordance with the terms of such plans as in effect on August 7, 2019.

Efforts to Close the Merger

Under the Merger Agreement, Parent, Merger Sub and the Company have each agreed to use reasonable best efforts to take all actions, do all things and assist and cooperate with the other parties, in each case as are necessary, proper or advisable pursuant to applicable law or otherwise to consummate and make effective, as promptly as practicable, the Merger and the other transactions contemplated by the Merger Agreement.

Each of Parent and Merger Sub shall offer, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, and take all actions necessary to avoid or eliminate each and every impediment under the HSR Act and any other laws, including (i) the sale, divestiture, transfer, license, disposition, or hold separate (through the establishment of a trust or otherwise), of any and all of the capital stock or other equity or voting interest, assets (whether tangible or intangible), rights, properties, products or businesses of Parent and Merger Sub or of the Company; (ii) the termination, modification, or assignment of existing relationships, joint ventures, contracts, or obligations of Parent and Merger Sub or of the Company; (iii) the modification of any course of conduct regarding future operations of Parent and Merger Sub or of the Company; and (iv) any other restrictions on the activities of Parent and Merger Sub or of the Company. However, none of the Company, Parent and Merger Sub is required to take any action, or agree or commit to take any action, or agree to any condition or

 

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limitation contemplated above that would have, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the assets, business, financial condition or results of operations of the Company and its subsidiaries, taken as a whole.

Cooperation with Debt Financing

Although the obligation of Parent and Merger Sub to consummate the Merger is not subject to any financing condition (including, without limitation, consummation of any debt financing), the Company has agreed that it will, and will cause its subsidiaries and management of the Company to, use its reasonable best efforts to provide Parent and Merger Sub with all customary cooperation as is reasonably requested by Parent or Merger Sub to arrange, syndicate and obtain the Debt Financing, including using its reasonable best efforts to, among other things:

 

   

participate in a reasonable number of meetings, presentations, bank meetings and sessions with rating agencies;

 

   

provide reasonably and customary assistance with the preparation of customary rating agency presentations and bank information memoranda required in connection with the Debt Financing;

 

   

assist Parent in connection with the preparation, execution and delivery of any pledge and security documents and other definitive financing documents as may be reasonably requested by Parent or its debt financing sources;

 

   

furnish Parent and its debt financing sources with the certain financial statements of the Company and such other information as reasonably requested by Parent in the preparation of a customary confidential information memorandum;

 

   

assist in the taking of all corporate and other actions necessary to permit the consummation of the Debt Financing on the Closing Date; and

 

   

furnish to Parent and its financing sources at least three business days prior to the closing of the Merger with all customary documentation and other information about the Company required by U.S. regulatory authorities pursuant to applicable “know your customer” and anti-money laundering rules and regulations.

Notwithstanding the foregoing, the Company and its subsidiaries are not required to (i) waive or amend any terms of the Merger Agreement or agree to pay any fees or reimburse any expenses prior to the Effective Time; (ii) enter into any definitive agreement the effectiveness of which is not conditioned upon the closing of the Merger (other than customary authorization letters required for the syndication of the Debt Financing); (iii) give any indemnities that are effective prior to the Effective Time; or (iv) take any action that, in the good faith determination of the Company, would unreasonably interfere with the conduct of the business or the Company and its subsidiaries, breach any confidentiality obligations or create an unreasonable risk of damage or destruction to any property or assets of the Company or any of its subsidiaries.

In addition, other than with respect to customary authorization letters required for the syndication of the Debt Financing, no action, liability or obligation of the Company or any of its subsidiaries or any of its or their respective representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the Debt Financing will be effective until the Effective Time, and neither the Company nor any of its subsidiaries will be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument related to the Debt Financing that is not contingent on the occurrence of the closing of the Merger or that must be effective prior to the Effective Time. None of the Company, its subsidiaries or its and their respective representatives shall be required to approve, execute or perform any financing or other agreements or pledge any collateral with respect to any debt financing that is not conditioned on the Effective Time (other than with respect to customary authorization letters required for the syndication of the Debt Financing), take any other action pursuant to the cooperation requirements described herein and in the Debt Commitment Letter that could

 

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reasonably be expected to result in personal liability, incur any liability or deliver any legal opinion or solvency certificate prior to the Effective Time.

In addition, Parent shall (a) reimburse the Company for any reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by the Company, its subsidiaries and its and their respective representatives in connection with the cooperation requirements described herein and in the Debt Commitment Letter and (b) indemnify the Company, its subsidiaries, and its and their representatives from and against any and all liabilities, losses, damages, claims, costs, expenses (including attorneys’ fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in connection with any cooperation described herein and in the Debt Commitment Letter.

Indemnification and Insurance

The Merger Agreement provides that the Surviving Corporation and its subsidiaries shall, and Parent shall cause the Surviving Corporation and its subsidiaries to, honor and fulfill the obligations of the Company and any of its subsidiaries or other affiliates pursuant to any indemnification agreements listed in the confidential disclosure letter between the Company and any of its subsidiaries, on the one hand, and any of their respective current or former directors, officers or employees (and any person who becomes a director, officer or employee of the Company or any of its subsidiaries prior to the Effective Time), on the other hand, with respect to such acts or omissions occurring prior to the Effective Time. In addition, during the period commencing at the Effective Time and ending on the sixth anniversary of the Effective Time, the Surviving Corporation and its subsidiaries shall (and Parent shall cause the Surviving Corporation and its subsidiaries to) cause the organizational documents of the Surviving Corporation and its subsidiaries to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions set forth in the organizational documents of the subsidiaries of the Company, as applicable, as of the date of the Merger Agreement. During such six-year period, such provisions may not be repealed, amended or otherwise modified in any manner except as required by applicable law.

In addition, the Merger Agreement provides that, during the six-year period commencing at the Effective Time, the Surviving Corporation will (and Parent must cause the Surviving Corporation to) indemnify and hold harmless each current or former director, officer or employee of the Company and its subsidiaries, to the fullest extent permitted by law, from and against all costs, fees and expenses (including attorneys’ fees and investigation expenses), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement or compromise in connection with any legal proceeding arising, directly or indirectly, out of or pertaining, directly or indirectly, to (1) the fact that an indemnified person is or was a director, officer, employee or agent of the Company or its subsidiaries or other affiliates; (2) any action or omission, or alleged action or omission, in such indemnified person’s capacity as a director, officer, employee or agent of the Company or its subsidiaries or other affiliates, or taken at the request of the Company or such subsidiary or affiliate as a director, officer, employee, agent, trustee or fiduciary of another person, to the extent that such action or omission, or alleged action or omission, occurred prior to, or at the Effective Time; and (3) the Merger, as well as any actions taken by the Company, Parent or Merger Sub with respect thereto. The Surviving Corporation will (and Parent must cause the Surviving Corporation to) advance all fees and expenses (including fees and expenses of any counsel) as incurred by any such indemnified person in the defense of such legal proceeding.

In addition, unless the Company has purchased a “tail” policy prior to the Effective Time (which the Company may purchase, provided that the premium for such insurance does not exceed 300% of the aggregate annual premiums paid by the Company in the last full fiscal year), the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) maintain in effect the Company’s current directors’ and officers’ liability insurance on terms that are equivalent to the Company’s current directors’ and officers’ insurance policies, for a period of at least six years commencing at the Effective Time. Neither Parent nor the Surviving Corporation will be required to pay premiums for such policy to the extent such annual premiums exceed 300% of the aggregate annual premiums paid by the Company in the last full fiscal year, and if the premium for such insurance coverage

 

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would exceed such amount Parent shall be obligated to cause the Surviving Corporation to obtain the greatest coverage available for a cost not exceeding such amount.

Other Covenants

Special Meeting

The Company will establish a record date for, duly call and hold the Special Meeting as promptly as practicable, and use reasonable best efforts to duly call and hold the Special Meeting on the 20th business day following the mailing of this proxy statement to Company stockholders. The adoption of the Merger Agreement shall be the only matter (other than matters of procedure, including adjournment or postponement thereof, and matters required by law to be voted on by the Company stockholders in connection with the adoption of the Merger Agreement) that the Company shall propose to be acted on by the Company stockholders at the Special Meeting (other than with the consent of Parent). The Company shall use its reasonable best efforts, subject to certain exceptions, to solicit proxies to obtain the requisite affirmative vote of holders of a majority of the outstanding shares of Company Common Stock entitled to vote on the Merger.

Stockholder Litigation

The Company will: (1) provide Parent with prompt notice of all stockholder litigation relating to the Merger Agreement; (2) keep Parent reasonably informed with respect to the status thereof; (3) give Parent the opportunity to participate in the defense, settlement or prosecution of any such litigation; and (4) consult with Parent with respect to the defense, settlement or prosecution of such litigation. The Company may not compromise or settle any such litigation without Parent’s prior written consent, except as permitted under the Merger Agreement.

Conditions to the Closing of the Merger

The obligations of Parent and Merger Sub, on the one hand, and the Company, on the other hand, to consummate the Merger are subject to the satisfaction or waiver (where permitted by applicable law) of each of the following conditions:

 

   

the adoption of the Merger Agreement by the requisite affirmative vote of holders of a majority of the outstanding shares of Company Common Stock entitled to vote on the Merger;

 

   

the expiration or termination of the applicable waiting period under the HSR Act and the requisite approvals under European Commission Merger Regulation have been obtained; and

 

   

the consummation of the Merger not being restrained, enjoined, rendered illegal or otherwise prohibited or prevented by any law or order issued by any court of competent jurisdiction or other governmental authority.

In addition, the obligations of Parent and Merger Sub to consummate the Merger are subject to the satisfaction or waiver (where permitted by applicable law) of each of the following additional conditions:

 

   

the representations and warranties of the Company relating to organization, good standing, corporate power, enforceability, the Board of Directors’ approval of the Merger Agreement and the Merger, anti-takeover laws and the transaction and brokers that (A) are not qualified by Company Material Adverse Effect or other materiality qualifiers, being true and correct in all material respects and (B) are qualified by Company Material Adverse Effect or other materiality qualifiers, being true and correct in all respects, in each of (A) and (B), as of the date of the Merger Agreement and the date on which the closing of the Merger occurs as if made at and as of such time;

 

   

the representations and warranties of the Company relating to certain aspects of its capitalization and the ownership of its subsidiaries being true and correct in all respects as of the date of the Merger Agreement and the date on which the closing of the Merger occurs, except for any failure to be true and correct that is de minimis in nature;

 

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the other representations and warranties of the Company set forth elsewhere in the Merger Agreement being true and correct (without giving effect to any materiality to Company Material Effect qualifications set forth therein) as of the date of the Merger Agreement and the date on which the closing of the Merger occurs as if made at and as of such time, except for such failures to be true and correct that have not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;

 

   

the Company having performed and complied in all material respects with all covenants, obligations and conditions of the Merger Agreement required to be performed and complied with by it at or prior to the closing of the Merger;

 

   

the receipt by Parent and Merger Sub of a certificate of the Company, validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof, certifying that the conditions described in the preceding four bullets have been satisfied; and

 

   

since the date of the Merger Agreement, there has not been any change, event, effect, condition, development, state of facts or circumstance that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

In addition, the obligation of the Company to consummate the Merger is subject to the satisfaction or waiver (where permitted by applicable law) of each of the following additional conditions:

 

   

the representations and warranties of Parent and Merger Sub set forth in the Merger Agreement being true and correct (without giving effect to any materiality or “Parent Material Adverse Effect” qualifications set forth therein) as of the date of the Merger Agreement and the date on which the closing of the Merger occurs as if made at and as of such time, except where the failure to be true and correct, individually or in the aggregate, would not reasonably be expected to prevent or have a material adverse effect on the ability of Parent or Merger Sub to perform its obligations under the Merger Agreement or to consummate the Merger and the other transactions contemplated by the Merger Agreement;

 

   

Parent and Merger Sub having performed and complied in all material respects with all covenants, obligations and conditions of the Merger Agreement required to be performed and complied with by Parent or Merger Sub at or prior to the closing of the Merger; and

 

   

the receipt by the Company of a certificate of Parent and Merger Sub, validly executed for and on behalf of Parent and Merger Sub and in their respective names by a duly authorized executive officer thereof, certifying that the conditions described in the preceding two bullets have been satisfied.

Termination of the Merger Agreement

The Merger Agreement may be terminated at any time prior to the Effective Time (unless otherwise stated below) in the following ways (subject to certain specified exceptions and qualifications set forth in the Merger Agreement):

 

   

by mutual written agreement of the Company and Parent;

 

   

by either the Company or Parent if:

 

   

(1) any permanent injunction, other judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the Merger is in effect, or any action has been taken by any governmental authority of competent jurisdiction, that, in each case, prohibits, makes illegal or enjoins the consummation of the Merger and has become final and non-appealable; or (2) any statute, rule, regulation or order is enacted, entered, enforced or deemed applicable to the Merger that prohibits, makes illegal or enjoins the consummation of the Merger;

 

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the Merger has not been consummated by 11:59 p.m., New York City time, on the Termination Date; or

 

   

stockholders fail to adopt the Merger Agreement at the Special Meeting or any adjournment or postponement thereof (a “Stockholder Vote Termination”);

 

   

by the Company if:

 

   

Parent or Merger Sub has breached or failed to perform in any material respect any of their representations, warranties, covenants or other agreements set forth in the Merger Agreement, which breach or failure to perform would result in a failure of a condition of closing of the Merger applicable to Parent or Merger Sub (refer to the section of this proxy statement captioned “—Conditions to the Closing of the Merger.”) as of the date of termination, except that if such breach is capable of being cured by the Termination Date, the Company will not be entitled to terminate the Merger Agreement if the breach has been cured within 45 days of written notice of such breach by the Company to Parent (a “Parent Breach Termination”);

 

   

prior to the adoption of the Merger Agreement by stockholders in order to substantially concurrently enter into an Alternative Acquisition Agreement providing for a Superior Proposal, if (i) the Company has complied in all material respects with the obligations set forth in the sections of this proxy statement captioned “—The “No-Shop” Period—No Solicitation of Offers” and “—The Board of Directors’ Recommendation; Company Board Recommendation Change,” and (ii) the Company pays or causes to be paid to Parent in immediately available funds the Company Termination Fee (a “Superior Proposal Termination”); or

 

   

all conditions of the Company set forth in the Merger Agreement have been satisfied and the Company has notified Parent in writing that it is ready, willing and able to consummate the Merger, but Parent and Merger Sub fail to consummate the Merger within three business days following notice by the Company of its intent to consummate the Merger (a “Closing Failure Termination”); and

 

   

by Parent if:

 

   

the Company has breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements set forth in the Merger Agreement, which breach or failure to perform would result in a failure of a condition of closing of the Merger applicable to the Company (refer to the section of this proxy statement captioned “—Conditions to the Closing of the Merger”) as of the Termination Date, except that if such breach is capable of being cured by the Termination Date, Parent will not be entitled to terminate the Merger Agreement if the breach has been cured within 45 days of written notice of such breach by Parent to the Company (a “Company Breach Termination”); or

 

   

the Board of Directors has effected a Company Board Recommendation Change (a “Recommendation Change Termination”).

In the event that the Merger Agreement is terminated pursuant to the termination rights above, the Merger Agreement will be of no further force or effect without liability of any party to the other parties, as applicable, except certain sections of the Merger Agreement will survive the termination of the Merger Agreement in accordance with their respective terms, including terms relating to reimbursement of expenses and indemnification. Notwithstanding the foregoing, no termination of the Merger Agreement will relieve any party from any liability for fraud or any intentional breach of the Merger Agreement by such party prior to termination (subject to certain limitations on liability). In addition, no termination of the Merger Agreement will affect the rights or obligations of any party pursuant to the confidentiality agreement between Permira and the Company, the Fee Funding Agreement or the Financing Letters, which rights, obligations and agreements will survive the termination of the Merger Agreement in accordance with their respective terms.

 

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Termination Fees

Parent will be entitled to receive a $61,600,430 termination fee (the “Company Termination Fee”) from the Company if:

 

   

(i) the Merger Agreement is terminated because it has not been consummated by the Termination Date, a Stockholder Vote Termination occurs or a Company Breach Termination occurs; (ii) following execution of the Merger Agreement and prior to such matters in clause (i), an Acquisition Proposal has been made to the Company or the Board of Directors or any person has publicly announced or otherwise publicly communicated to Company stockholders an Acquisition Proposal and not withdrawn or otherwise abandoned such Acquisition Proposal prior to such termination; and (iii) within 12 months of such termination of the Merger Agreement, either an Acquisition Transaction is consummated or the Company enters into a definitive agreement providing for the consummation of an Acquisition Transaction and such Acquisition Transaction is subsequently consummated (provided that, for purposes of this bullet, all references to “20%” in the definition of “Acquisition Transaction” are deemed to be references to “50%”);

 

   

a Recommendation Change Termination occurs; or

 

   

a Superior Proposal Termination occurs; provided that if a Superior Proposal Termination arises in connection with the Company entering into a definitive agreement prior to the Cut-Off Time with respect to a Superior Proposal from an Excluded Party, the Company Termination Fee is $25,666,846.

The Company will be entitled to receive a $123,200,859 termination fee (the “Parent Termination Fee”) from Parent if:

 

   

a Parent Breach Termination occurs;

 

   

a Closing Failure Termination occurs; or

 

   

the Merger Agreement is terminated because it has not been consummated by the Termination Date and at such time the Company could have terminated the Merger Agreement due to a Parent Breach Termination or a Closing Failure Termination.

Specific Performance

Parent, Merger Sub and the Company are entitled to an injunction, specific performance and other equitable relief to prevent breaches (or threatened breaches) of the Merger Agreement and to enforce the terms and provisions of the Merger Agreement, in addition to any other remedy to which they are entitled at law or in equity.

However, the Company’s right to an injunction, specific performance or other equitable remedy to cause the Equity Financing to be funded and to consummate the Merger will be subject to the requirements that:

 

   

all of the conditions to the closing of the Merger (as described under the caption “—Conditions to the Closing of the Merger”), other than those conditions that by their terms are to be satisfied at the closing of the Merger, have been satisfied at the time the closing of the Merger is required to be consummated;

 

   

the Debt Financing has been funded or will be funded at the closing of the Merger if the Equity Financing is funded at the closing of the Merger;

 

   

Parent and Merger Sub fail to complete the closing of the Merger when required to do so in accordance with the terms of the Merger Agreement (as described under the caption “—Closing and Effective Time”); and

 

   

the Company has irrevocably confirmed in writing to Parent that if specific performance is granted and the Equity Financing and the Debt Financing are funded, then it would take actions that are required of it under the Merger Agreement to cause the closing of the Merger to occur.

 

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Sole Remedy

The sole and exclusive remedies of the Company against Parent, Merger Sub, the Permira Funds and the financing sources who have committed to provide the Debt Financing or any alternate debt financing is, subject to certain exceptions, an amount equal to $123,200,859, plus, if applicable, any Reimbursement Obligations, Interest Expenses, and/or Enforcement Expenses (taking into account any payment of the Parent Termination Fee, Reimbursement Obligations, Interest Expenses and/or Enforcement Expenses).

The sole and exclusive remedy of Parent and Merger Sub against the Company in respect of the Merger Agreement is, subject to certain exceptions, Parent’s receipt of the Company Termination Fee (to the extent owed) and or certain out-of-pocket costs and expenses (including attorneys’ fees) related to Parent’s efforts to obtain payment of such Company Termination Fee.

Notwithstanding such limitations on liability for monetary damages, Parent, Merger Sub and the Company may be entitled to an injunction, specific performance or other equitable remedies as provided in the Merger Agreement.

Fees and Expenses

Except in specified circumstances, whether or not the Merger is completed, the Company, on the one hand, and Parent and Merger Sub, on the other hand, are each responsible for all of their respective costs and expenses incurred in connection with the Merger and the other transactions contemplated by the Merger Agreement.

Amendment

The Merger Agreement may be amended in writing at any time before or after adoption of the Merger Agreement by stockholders. However, after adoption of the Merger Agreement by stockholders, no amendment that requires further approval by such stockholders pursuant to the DGCL may be made without such approval.

Governing Law

The Merger Agreement is governed by Delaware law.

Vote Required and Board of Directors Recommendation

Approval the proposal to adopt the Merger Agreement requires the affirmative vote of the holders of a majority of the outstanding shares of Company Common Stock entitled to vote at the Special Meeting. Assuming a quorum is present, (i) a failure to vote in person or by proxy at the Special Meeting will have will have the same effect as a vote against the proposal to adopt the Merger agreement, (ii) abstentions will have the same effect as a vote against the proposal to adopt the Merger Agreement and (iii) broker “non-votes” (if any) will have the same effect as a vote against the proposal to adopt the Merger Agreement. Shares of Company Common Stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a Company stockholder returns a signed proxy card without indicating voting preferences on such proxy card, the shares of Company Common Stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by the Board of Directors.

The Board of Directors recommends that you vote “FOR” this proposal.

 

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PROPOSAL 2: THE COMPANY’S COMPENSATION PROPOSAL

Under Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, the Company is required to submit a proposal to our stockholders to approve, on an advisory (non-binding) basis, the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger Agreement and the transactions contemplated by the Merger Agreement. This compensation is summarized in the section captioned “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger” beginning on page 53 of this proxy statement. The Board of Directors encourages you to review carefully the named executive officer Merger-related compensation information disclosed in this proxy statement. Accordingly, the Company is asking you to approve the following resolution:

“RESOLVED, that the stockholders of the Company approve, on a non-binding, advisory basis, the compensation that will or may become payable to the Company’s named executive officers that is based on or otherwise relates to the Merger as disclosed pursuant to Item 402(t) of Regulation S-K in the section entitled “The Merger—Interests of the Company’s Directors and Executive Officers in the Merger.””

The vote on this Compensation Proposal is a vote separate and apart from the vote on the proposal to adopt the Merger Agreement. Accordingly, you may vote to approve the proposal to adopt the Merger Agreement and vote not to approve this Compensation Proposal and vice versa. Because the vote on the Compensation Proposal is advisory only, it will not be binding on the Company. Accordingly, if the Merger Agreement is adopted and the Merger is completed, the compensation will be payable, subject only to the conditions applicable thereto, and is not contingent on the outcome of the vote on this Compensation Proposal.

Vote Required and Board of Directors Recommendation

Approval, on an advisory (non-binding) basis, of the Compensation Proposal requires the affirmative vote of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter, provided a quorum is present. Assuming a quorum is present, (i) a failure to vote in person or by proxy at the Special Meeting will have no effect on the outcome of the Compensation Proposal, (ii) abstentions will be treated as votes cast and, therefore, will have the same effect as a vote against the Compensation Proposal and (iii) broker “non-votes” (if any) will have no effect on the outcome of the Compensation Proposal. Shares of Company Common Stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a Company stockholder returns a signed proxy card without indicating voting preferences on such proxy card, the shares of Company Common Stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by the Board of Directors.

The Board of Directors recommends that you vote “FOR” this proposal.

 

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PROPOSAL 3: ADJOURNMENT OF THE SPECIAL MEETING

We are asking you to approve a proposal to adjourn the Special Meeting to a later date or dates, if necessary or appropriate and permitted under the Merger Agreement, to solicit additional proxies if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting. If stockholders approve the Adjournment Proposal, we could adjourn the Special Meeting and any adjourned session of the Special Meeting and use the additional time to solicit additional proxies, including solicitation of proxies from stockholders that have previously returned properly executed proxies voting against adoption of the Merger Agreement. Among other things, approval of the Adjournment Proposal could mean that, even if we had received proxies representing a sufficient number of votes against adoption of the Merger Agreement such that the proposal to adopt the Merger Agreement would be defeated, we could adjourn the Special Meeting without a vote on the adoption of the Merger Agreement and seek to convince the holders of those shares to change their votes to votes in favor of adoption of the Merger Agreement. Additionally, we may seek to adjourn the Special Meeting if a quorum is not present or otherwise at the discretion of the chairman of the Special Meeting.

Vote Required and Board of Directors Recommendation

Approval of the Adjournment Proposal requires the affirmative vote of a majority of the shares of Company Common Stock present in person or represented by proxy at the Special Meeting and entitled to vote on the subject matter. A failure to vote in person or by proxy at the Special Meeting will have no effect on the outcome of the Adjournment Proposal, abstentions will be treated as votes cast and, therefore, will have the same effect as a vote against the Adjournment Proposal and broker “non-votes” (if any) will have no effect on the outcome of the Adjournment Proposal. Shares of Company Common Stock represented by properly executed, timely received and unrevoked proxies will be voted in accordance with the instructions indicated thereon. If a Company stockholder returns a signed proxy card without indicating voting preferences on such proxy card, the shares of Company Common Stock represented by that proxy will be counted as present for purposes of determining the presence of a quorum for the Special Meeting and all of such shares will be voted as recommended by the Board of Directors.

The Board of Directors recommends that you vote “FOR” this proposal.

 

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MARKET PRICES AND DIVIDEND DATA

The Company Common Stock is listed on the NYSE under the symbol “CBM.” As of September 19, 2019, there were 33,724,367 shares of Company Common Stock outstanding held by approximately 43 stockholders of record. The actual number of stockholders is greater than this number of record holders and includes stockholders who are beneficial owners, but whose shares are held in “street name” by brokers and other nominees. We have not declared or paid any cash dividends on the Company Common Stock since 2007.

On September 20, 2019, the latest practicable trading day before the filing of this proxy statement, the closing price for the Company Common Stock on the NYSE was $59.68 per share. You are encouraged to obtain current market quotations for the Company Common Stock.

Following the Merger, there will be no further market for the Company Common Stock and it will be delisted from the NYSE and deregistered under the Exchange Act. As a result, following the Merger we will no longer file periodic reports with the SEC.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table sets forth the beneficial ownership of the Class A Common Stock as of September 19, 2019 by:

 

   

each person or group of affiliated persons, who we know to beneficially own more than 5% of the Class A Common Stock;

 

   

each of our named executive officers;

 

   

each of our directors; and

 

   

all of our current named executive officers and directors as a group.

Unless otherwise noted below, the address of each of the individuals and entities named in the table below is c/o Cambrex Corporation, One Meadowlands Plaza, East Rutherford, New Jersey 07073. The information provided in the table is based on our records, information filed with the SEC and information provided to us, except where otherwise noted.

 

Name of Beneficial Owner

   Number of Shares
Beneficially
Owned(1)
     Percent of Shares
Outstanding(2)
 

Greater than 5% Stockholders:

     

BlackRock, Inc.(3)

     4,885,273        14.49

The Vanguard Group(4)

     3,399,704        10.08

William Blair Investment Management, LLC(5)

     2,588,798        7.67

 

Named Executive Officers and Directors:

     

Gregory B. Brown(6)

     9,015        *  

Shawn Cavanagh(7)

     91,139        *  

Claes Glassell(8)

     14,097        *  

Louis J. Grabowski(9)

     15,208        *  

Bernhard Hampl(10)

     11,947        *  

Samantha Hanley(11)

     46,250        *  

Kathryn R. Harrigan(12)

     82,863        *  

Ilan Kaufthal(13)

     62,668        *  

Steven M. Klosk(14)

     217,328        *  

Gregory P. Sargen(15)

     81,198        *  

Shlomo Yanai(16)

     35,796        *  

Tom Vadaketh(17)

     —          —    

All directors and executive officers as a group (12 persons)(18)

     667,509        1.96%  

 

*

Represents beneficial ownership of less than 1% of the Class A Common Stock outstanding.

(1)

Beneficial ownership is determined in accordance with SEC rules. In general, under these rules a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise has or shares voting power or investment power with respect to such security. A person is also deemed a beneficial owner of a security if that person has the right to acquire beneficial ownership of such security within 60 days. Except as otherwise noted, reported share ownership is as of September 19, 2019. Unless otherwise stated, each person has sole voting and investment power with respect to the shares of Class A Common Stock beneficially owned by such person.

(2)

For the purpose of this table, the percent of issued and outstanding shares of Class A Common Stock held by each beneficial owner has been calculated on the basis of (i) 33,724,367 shares of Class A Common Stock issued and outstanding on September 19, 2019, and (ii) all shares of Class A Stock underlying equity awards that are held by such beneficial owner and are exercisable within 60 days of September 19, 2019.

(3)

Based on information as of December 31, 2018, obtained from an amended Schedule 13G filed with the SEC on January 24, 2019, by BlackRock, Inc. (“BlackRock”). BlackRock reported sole voting power with

 

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  respect to 4,804,687 shares and sole dispositive power with respect to 4,885,273 shares. BlackRock’s address is 55 East 52nd Street, New York, NY 10055. The foregoing information has been included solely in reliance upon and without independent investigation of the disclosures contained in BlackRock’s amended Schedule 13G.
(4)

Based on information as of December 31, 2018, obtained from an amended Schedule 13G filed with the SEC on January 10, 2019, by The Vanguard Group (“Vanguard”). Vanguard reported sole voting power with respect to 48,197 shares, shared voting power with respect to 4,624 shares, sole dispositive power with respect to 3,349,859 shares, and shared dispositive power with respect to 49,845 shares. Vanguard’s address is 100 Vanguard Blvd., Malvern, PA 19355. The foregoing information has been included solely in reliance upon and without independent investigation of the disclosures contained in Vanguard’s amended Schedule 13G.

(5)

Based on information as of December 31, 2018, obtained from an amended Schedule 13G filed with the SEC on February 13, 2019, by William Blair Investment Management, LLC (“William Blair”). William Blair reported sole voting power with respect to 2,329,790 shares and sole dispositive power with respect to 2,588,798 shares. William Blair’s address is 150 North Riverside Plaza, Chicago, IL 60606. The foregoing information has been included solely in reliance upon and without independent investigation of the disclosures contained in William Blair’s amended Schedule 13G.

(6)

The number of shares reported includes 5,106 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(7)

The number of shares reported includes 66,250 shares issuable upon exercise of Company Options granted under the Company’s stock option plans.

(8)

The number of shares reported includes 7,936 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(9)

The number of shares reported includes 8,119 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(10)

The number of shares reported includes 6,856 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(11)

The number of shares reported includes 46,250 shares issuable upon exercise of Company Options granted under the Company’s stock option plans.

(12)

The number of shares reported includes 20,310 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(13)

The number of shares reported includes 21,903 shares issuable upon exercise of Company Options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(14)

The number of shares reported includes 114,000 shares issuable upon exercise of Company Options granted under the Company’s stock option plans.

(15)

The number of shares reported includes 55,000 shares issuable upon exercise of Company Options granted under the Company’s stock option plans.

(16)

The number of shares reported includes 20,310 shares issuable upon exercise of options granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and 2,247 unvested RSUs granted under such plan.

(17)

Tom Vadaketh resigned effective September 4, 2018, and does not own any shares of the Class A Common Stock.

(18)

The number of shares reported includes 372,040 shares issuable upon exercise of options granted under the Company’s stock option plans and 15,729 unvested RSUs granted under the Company’s 2012 Equity Incentive Plan for Non-Employee Directors.

 

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FUTURE STOCKHOLDER PROPOSALS

If the Merger is completed, we will have no public stockholders and there will be no public participation in any future meetings of stockholders of the Company. However, if the Merger is not completed, stockholders will continue to be entitled to attend and participate in stockholder meetings.

The Company will hold the regular annual meeting of its stockholders in 2020 only if the Merger is not completed.

To be eligible for inclusion in the Company’s proxy statement for the 2020 annual meeting (if held), stockholder proposals must be received by the Company’s Corporate Secretary at One Meadowlands Plaza, East Rutherford, New Jersey 07073 no later than the close of business on November 13, 2019. Proposals must satisfy certain eligibility requirements established by the SEC, including, but not limited to, Rule 14a-8 promulgated under the Exchange Act, and in our bylaws for stockholder proposals in order to be included in our proxy statement for that meeting. Please note that if we hold our regular annual stockholders meeting in 2020, and we do so more than 30 days before or after April 24, 2020 (the one-year anniversary date of the 2019 annual meeting of stockholders), we will disclose the new deadline by which stockholder proposals must be received under Item 5 of Part II of our earliest possible Quarterly Report on Form 10-Q or, if impracticable, by any means reasonably determined to inform stockholders.

Under the Company’s bylaws, any stockholder wishing to present a nomination for the office of director before the 2020 annual meeting (if held) for a vote or to bring a proposal or other business before the 2020 annual meeting (if held) for a vote must give the Company not less than 60 days (February 24, 2020) nor more than 90 days (January 25, 2020) advance notice prior to the anniversary date of the 2019 annual meeting. Any such notices must meet certain other requirements as stated in the Company’s bylaws. Any stockholder interested in making such a nomination or proposal should request a copy of such bylaw provisions from the Corporate Secretary of the Company. If the Company does not receive notice of a stockholder’s proposal within this time frame, the individuals named in the proxies solicited by the Board of Directors for that meeting may exercise discretionary voting power with respect to that proposal. Please note, however, that in the event that no annual meeting was held in the previous year or if the date of the annual meeting is more than 30 days before or after the anniversary date of the prior year’s annual meeting, then, for notice by the stockholder to be timely, it must be so received not later than the close of business on the tenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made.

In no event shall any adjournment or postponement of an annual meeting or the announcement thereof commence a new time period for the giving of a stockholder’s notice under our bylaws. A copy of our amended and restated bylaws may be obtained by accessing our filings on the SEC’s website at www.sec.gov. You may also contact our Corporate Secretary at our principal executive offices for a copy of the relevant bylaw provisions regarding the requirements for making stockholder proposals and nominating director candidates.

 

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WHERE YOU CAN FIND MORE INFORMATION

The Company files annual, quarterly and special reports, proxy statements and other information with the SEC. Any reports, statements or other information that we file with the SEC are available to the public from commercial document retrieval services and at www.sec.gov.

If you have any questions about this proxy statement, the Special Meeting or the Merger after reading this proxy statement, or if you would like additional copies of this proxy statement, please contact:

Innisfree M&A Incorporated

501 Madison Avenue, 20th Floor

New York, NY 10022

Call Toll-free: (888) 750-5834

Banks and Brokers Call: (212) 750-5833

This proxy statement contains references to the availability of certain information from our website, ir.cambrex.com. By making such references, we do not incorporate into this proxy statement the information included on our website.

 

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MISCELLANEOUS

The Company has supplied all information relating to the Company, and Parent has supplied, and the Company has not independently verified, all of the information relating to Parent and Merger Sub contained in this proxy statement.

You should rely only on the information contained in this proxy statement and the annexes to this proxy statement in voting 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 September 23, 2019. 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.

 

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ANNEX A

Execution Version

AGREEMENT AND PLAN OF MERGER

by and among

CATALOG INTERMEDIATE INC.,

CATALOG MERGER SUB INC.

and

CAMBREX CORPORATION

Dated as of August 7, 2019


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     Page  

ARTICLE I DEFINITIONS & INTERPRETATIONS

     A-1  

1.1  Certain Definitions

     A-1  

1.2  Index of Defined Terms

     A-9  

1.3  Certain Interpretations

     A-12  

ARTICLE II THE MERGER

     A-13  

2.1  The Merger

     A-13  

2.2  The Effective Time

     A-13  

2.3  The Closing

     A-13  

2.4  Effect of the Merger

     A-13  

2.5  Certificate of Incorporation and Bylaws

     A-14  

2.6  Directors and Officers

     A-14  

2.7  Effect on Capital Stock

     A-14  

2.8  Equity Awards

     A-15  

2.9  Exchange of Certificates

     A-16  

2.10  No Further Ownership Rights in Company Common Stock

     A-18  

2.11  Lost, Stolen or Destroyed Certificates

     A-18  

2.12  Required Withholding

     A-18  

2.13  No Dividends or Distributions

     A-18  

ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY

     A-18  

3.1  Organization; Good Standing

     A-19  

3.2  Corporate Power; Enforceability

     A-19  

3.3  Company Board Approval; Fairness Opinion; Anti-Takeover Laws

     A-19  

3.4  Requisite Stockholder Approval

     A-20  

3.5  Non-Contravention

     A-20  

3.6  Requisite Governmental Approvals

     A-20  

3.7  Company Capitalization

     A-21  

3.8  Subsidiaries

     A-22  

3.9  Company SEC Reports

     A-22  

3.10  Company Financial Statements; Internal Controls; Indebtedness

     A-23  

3.11  No Undisclosed Liabilities

     A-23  

3.12  Absence of Certain Changes

     A-24  

3.13  Material Contracts

     A-24  

 

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(cont’d)

 

     Page  

3.14  Real Property

     A-24  

3.15  Environmental Matters

     A-24  

3.16  Intellectual Property

     A-25  

3.17  Data Protection & Cybersecurity

     A-25  

3.18  Tax Matters

     A-26  

3.19  Employee Benefits

     A-26  

3.20  Labor Matters

     A-27  

3.21  Compliance with Laws

     A-28  

3.22  Legal Proceedings; Orders

     A-28  

3.23  Regulatory Compliance

     A-28  

3.24  Insurance

     A-29  

3.25  Anti-Corruption Compliance

     A-29  

3.26  Brokers

     A-29  

3.27  Company Information

     A-30  

3.28  No Other Representations or Warranties

     A-30  

ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

     A-30  

4.1  Organization; Good Standing

     A-30  

4.2  Corporate Power; Enforceability

     A-30  

4.3  Non-Contravention

     A-31  

4.4  Requisite Governmental Approvals

     A-31  

4.5  Legal Proceedings; Orders

     A-31  

4.6  Ownership of Company Common Stock

     A-31  

4.7  Brokers

     A-31  

4.8  Operations of Parent and Merger Sub

     A-31  

4.9  No Parent Vote or Approval Required

     A-32  

4.10  Fee Funding Arrangement

     A-32  

4.11  Financing

     A-32  

4.12  Stockholder and Management Arrangements

     A-33  

4.13  Solvency

     A-33  

4.14  Non-Reliance on Company Estimates, Projections, Forecasts, Forward-Looking Statements and Business Plans

     A-34  

4.15  Parent and Merger Sub Information

     A-34  

 

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(cont’d)

 

     Page  

4.16  Certain Competing Businesses

     A-34  

4.17  No Other Representations or Warranties

     A-34  

ARTICLE V INTERIM OPERATIONS OF THE COMPANY

     A-34  

5.1  Affirmative Obligations

     A-34  

5.2  Forbearance Covenants

     A-35  

5.3  No Solicitation

     A-37  

5.4  No Control of the Other Party’s Business

     A-41  

ARTICLE VI ADDITIONAL COVENANTS

     A-41  

6.1  Required Action and Forbearance; Efforts

     A-41  

6.2  Antitrust and Regulatory Matters

     A-42  

6.3  Proxy Statement and Other Required SEC Filings

     A-44  

6.4  Company Stockholder Meeting

     A-45  

6.5  Financing

     A-45  

6.6  Financing Cooperation

     A-47  

6.7  Anti-Takeover Laws

     A-50  

6.8  Access

     A-50  

6.9  Section 16(b) Exemption

     A-50  

6.10  Directors’ and Officers’ Exculpation, Indemnification and Insurance

     A-51  

6.11  Employee Matters

     A-52  

6.12  Obligations of Merger Sub

     A-54  

6.13  Public Statements and Disclosure

     A-54  

6.14  Transaction Litigation

     A-54  

6.15  Stock Exchange Delisting; Deregistration

     A-54  

6.16  Additional Agreements

     A-54  

6.17  Parent Vote

     A-55  

ARTICLE VII CONDITIONS TO THE MERGER

     A-55  

7.1  Conditions to Each Party’s Obligations to Effect the Merger

     A-55  

7.2  Conditions to the Obligations of Parent and Merger Sub

     A-55  

7.3  Conditions to the Company’s Obligations to Effect the Merger

     A-56  

ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER

     A-56  

8.1  Termination

     A-56  

8.2  Manner and Notice of Termination; Effect of Termination

     A-58  

 

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(cont’d)

 

     Page  

8.3  Fees and Expenses

     A-58  

8.4  Amendment

     A-60  

8.5  Extension; Waiver

     A-60  

ARTICLE IX GENERAL PROVISIONS

     A-61  

9.1  Survival of Representations, Warranties and Covenants

     A-61  

9.2  Notices

     A-61  

9.3  Assignment

     A-62  

9.4  Confidentiality

     A-62  

9.5  Entire Agreement

     A-62  

9.6  Third-Party Beneficiaries

     A-63  

9.7  Severability

     A-63  

9.8  Remedies

     A-63  

9.9  Governing Law

     A-64  

9.10  Consent to Jurisdiction

     A-64  

9.11  WAIVER OF JURY TRIAL

     A-65  

9.12  No Recourse

     A-65  

9.13  Company Disclosure Letter References

     A-65  

9.14  Counterparts

     A-66  

EXHIBITS

Exhibit A    Certificate of Incorporation of the Company
Exhibit B    Form of Certificate of Merger

 

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AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “Agreement”) is made and entered into as of August 7, 2019, by and among Catalog Intermediate Inc., a Delaware corporation (“Parent”), Catalog Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”), and Cambrex Corporation, a Delaware corporation (the “Company”). Each of Parent, Merger Sub and the Company are sometimes referred to as a “Party.” All capitalized terms that are used in this Agreement have the respective meanings given to them in this Agreement.

RECITALS

A. The Company Board has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement providing for the merger of Merger Sub with and into the Company (the “Merger”), with the Company being the surviving corporation in the Merger, in accordance with the General Corporation Law of the State of Delaware (the “DGCL”) upon the terms and subject to the conditions set forth herein; (ii) approved the execution and delivery of this Agreement by the Company, the performance by the Company of its covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein; (iii) resolved to recommend that the Company Stockholders adopt this Agreement in accordance with the DGCL; and (iv) directed that the adoption of this Agreement be submitted for consideration by the Company Stockholders at a meeting thereof.

B. Each of the board of directors of Parent and the board of directors of Merger Sub have (i) declared it advisable to enter into this Agreement; and (ii) approved the execution and delivery of this Agreement, the performance of their respective covenants and other obligations hereunder, and the consummation of the Merger upon the terms and subject to the conditions set forth herein.

C. Concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the Company’s willingness to enter into this Agreement, Permira VII L.P.1 and Permira VII L.P.2 SCSp (collectively, the “Sponsors”) are entering into a fee funding arrangement (the “Fee Funding Arrangement”) in favor of the Company and pursuant to which the Sponsors agree, subject to the terms and conditions contained in the Fee Funding Arrangement, to fund certain payment obligations of Parent and Merger Sub under this Agreement; and

D. Parent, Merger Sub and the Company desire to (i) make certain representations, warranties, covenants and agreements in connection with this Agreement and the Merger; and (ii) prescribe certain conditions with respect to the consummation of the Merger.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing premises 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 accepted, and intending to be legally bound hereby, Parent, Merger Sub and the Company agree as follows:

ARTICLE I

DEFINITIONS & INTERPRETATIONS

1.1 Certain Definitions. For all purposes of and pursuant to this Agreement, the following capitalized terms have the following respective meanings:

(a) “Acceptable Confidentiality Agreement” means any confidentiality agreement containing terms no less restrictive in any material respect on the Company’s counterparty (and its Affiliates and Representatives)

 

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than those contained in the Confidentiality Agreement, except that such confidentiality agreement need not contain any “standstill” or similar provision or otherwise prohibit the making of any Acquisition Proposal.

(b) “Acquisition Proposal” means any bona fide written offer or proposal (other than an offer or proposal by Parent or Merger Sub) to engage in an Acquisition Transaction.

(c) “Acquisition Transaction” means any transaction or series of related transactions (other than the Merger) involving:

(i) any direct or indirect purchase or other acquisition by any third party Person or Group, whether from the Company or any other Person(s), of shares of Company Common Stock representing more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any Person or Group that, if consummated in accordance with its terms, would result in such Person or Group beneficially owning more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such tender or exchange offer;

(ii) any direct or indirect purchase or other acquisition by any third party Person or Group, or stockholders of any such Person or Group, of more than 20% of the consolidated assets of the Company and its Subsidiaries taken as a whole (measured by the fair market value thereof as of the date of such purchase or acquisition); or

(iii) any merger, consolidation, business combination, recapitalization, reorganization, liquidation, dissolution or other transaction involving the Company or any of its Subsidiaries pursuant to which any third party Person or Group, or stockholders of any such Person or Group, would hold shares of Company Common Stock representing more than 20% of the Company Common Stock outstanding after giving effect to the consummation of such transaction.

(d) “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that Person, whether through the ownership of voting securities or partnership or other ownership interests, by contract or otherwise; provided, that except in the case of Article IV and Section 6.2(d), the term “Affiliate” shall not include any portfolio company of any of the Sponsors or of any of their Affiliates.

(e) “Antitrust Law” means the Sherman Antitrust Act, the Clayton Antitrust Act, the HSR Act, the Federal Trade Commission Act and all other Laws, in any jurisdiction, whether domestic or foreign, in each case that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in any case that are applicable to the Merger.

(f) “Audited Company Balance Sheet” means the consolidated balance sheet (and the notes thereto) of the Company and its consolidated Subsidiaries as of December 31, 2018 set forth in the Company’s Form 10-K filed by the Company with the SEC on February 13, 2019.

(g) “Business Day” means any day other than Saturday or Sunday or a day on which commercial banks are authorized or required by Law to be closed in New York, New York.

(h) “Code” means the U.S. Internal Revenue Code of 1986.

(i) “Company Board” means the Board of Directors of the Company.

(j) “Company Common Stock” means, collectively, the Company Voting Common Stock and the Company Non-Voting Common Stock.

(k) “Company Credit Agreement means the Amended and Restated Credit Agreement, dated as of January 2, 2019, as amended from time to time, among the Company, the Subsidiary borrowers party thereto, the

 

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Subsidiary guarantors party thereto, Wells Fargo Bank, National Association, as administrative agent and the lenders party thereto from time to time, and all pledge, security and other agreements and documents related thereto.

(l) “Company Indebtedness” means the debt outstanding under the Company Credit Agreement.

(m) “Company Intellectual Property” means any Intellectual Property that is owned by the Company or any of its Subsidiaries.

(n) “Company Material Adverse Effect” means any change, event, effect, condition, development, state of facts or circumstance that, individually or in the aggregate, when taken together with any other change, event, effect, condition, development, state of facts or circumstance, has a material adverse effect on (A) the assets, business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole or (B) the ability of the Company to consummate the Transaction prior to the Termination Date; provided that none of the following, and no changes, events, effects or circumstances arising out of or resulting from the following (in each case, by itself or when aggregated) will be deemed to be or constitute a Company Material Adverse Effect under clause (A) above or will be taken into account when determining whether a Company Material Adverse Effect under clause (A) above has occurred or may, would or could occur (subject to the limitations set forth below):

(i) changes in general economic conditions, or changes in conditions in the United States, global, international or regional economy generally;

(ii) changes in conditions in the financial markets, credit markets, capital markets or international trade, including (A) changes in interest rates or credit ratings; (B) changes in exchange rates for the currencies of any country; or (C) any suspension of trading in securities (whether equity, debt, derivative or hybrid securities) generally on any securities exchange or over-the-counter market;

(iii) changes in conditions in the industries in which the Company and its Subsidiaries conduct business;

(iv) changes in regulatory, legislative or political conditions;

(v) any geopolitical conditions, outbreak of hostilities, acts of war (whether or not declared), sabotage, cyberterrorism (including by means of cyber-attack by or sponsored by a Governmental Authority), terrorism or military actions (including any escalation or general worsening of any such hostilities, acts of war, sabotage, cyberterrorism, terrorism or military actions);

(vi) earthquakes, volcanic activity, hurricanes, tsunamis, tornadoes, floods, mudslides, wildfires or other natural disasters, weather conditions, pandemics and other force majeure events;

(vii) any change, event, effect, condition, development, state of facts or circumstance to the extent resulting from the negotiation, execution, delivery or performance of this Agreement or the announcement of this Agreement or the pendency of the Merger, including the impact thereof on the relationships, contractual or otherwise, of the Company and its Subsidiaries with customers, suppliers, lenders, lessors, business partners, employees or vendors (it being understood and agreed that this clause (vii) shall not apply to Section 3.5 or Section 3.6);

(viii) the compliance by any Party with the terms of this Agreement, including any action taken or refrained from being taken pursuant to this Agreement;

(ix) any action taken or refrained from being taken, in each case to the extent Parent has expressly approved, consented to or requested in writing following the date of this Agreement;

(x) changes or proposed changes in GAAP or other accounting standards or in any applicable Laws (or the enforcement or interpretation of any of the foregoing);

(xi) changes in the price or trading volume of the Company Common Stock, in and of itself (it being understood that the underlying cause of such change may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);

 

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(xii) any failure, in and of itself, by the Company and its Subsidiaries to meet (A) any public estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period; or (B) any budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that the underlying cause of any such failure may be taken into consideration when determining whether a Company Material Adverse Effect has occurred);

(xiii) the availability or cost of equity, debt or other financing to Parent or Merger Sub;

(xiv) any Transaction Litigation; and

(xv) the identity of, or any facts or circumstances relating to, Sponsors, Parent, Merger Sub, or the respective Affiliates of the foregoing, the respective financing sources of or investors in the foregoing, or the respective plans or intentions of the foregoing, with respect to the Company or its business;

except, in each case of clauses (i), (ii), (iii), (iv), (v), (vi) and (x), to the extent that such changes, events, effects, conditions, developments, states of facts or circumstances has had a disproportionate adverse effect on the Company relative to other companies of a similar size operating in the industries in which the Company and its Subsidiaries conduct business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether a Company Material Adverse Effect has occurred.

(o) “Company Non-Voting Common Stock” means the Class B common stock, par value $0.10 per share, of the Company.

(p) “Company Options” means any options to purchase shares of Company Common Stock, whether granted pursuant to any of the Company Stock Plans or otherwise.

(q) “Company Preferred Stock” means the preferred stock, par value $0.10 per share, of the Company.

(r) “Company PSUs” means performance vesting restricted stock units of the Company, whether granted pursuant to any of the Company Stock Plans or otherwise.

(s) “Company RSUs” means awards of time-vesting restricted stock units of the Company, whether granted pursuant to any of the Company Stock Plans or otherwise.

(t) “Company Stock Plans” means the Company’s 2009 Long Term Incentive Plan, the Company’s 2012 Equity Incentive Plan for Non-Employee Directors and each other Employee Plan that provides for or has provided for the award of rights of any kind to receive shares of Company Common Stock or benefits measured in whole or in part by reference to shares of Company Common Stock.

(u) “Company Stockholders” means the holders of shares of Company Common Stock.

(v) “Company Termination Fee” means, (i) if payable in connection with a valid termination of this Agreement by the Company pursuant to Section 8.1(h) in order for the Company to enter into a definitive agreement prior to the Cut-Off Date with respect to a Superior Proposal made by an Excluded Party, an amount equal to $25,666,846, and (ii) if payable in any other circumstance, an amount equal to $61,600,430.

(w) “Company Voting Common Stock” means the Class A common stock, par value $0.10 per share, of the Company.

(x) “Continuing Employees” means each individual who is an employee of the Company or any of its Subsidiaries immediately prior to the Effective Time and continues to be an employee of Parent or one of its Subsidiaries (including the Surviving Corporation) immediately following the Effective Time.

(y) “Contract” means any binding written arrangement, contract, subcontract, note, bond, mortgage, indenture, lease, license, sublicense, guarantee, commitment, purchase order or other binding agreement.

(z) “DOJ” means the United States Department of Justice or any successor thereto.

 

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(aa) “Employee Plan” means each “employee benefit plan” (as defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other bonus, stock option, stock purchase or other equity-based compensation, incentive compensation, profit sharing, savings, retirement, disability, vacation, deferred compensation, employment, severance, termination, retention, change of control, and other similar plan, policy, arrangement or agreement, in each case, that is maintained, sponsored, participated in, contributed to or required to be contributed to by the Company or any of its Subsidiaries for the benefit of any Service Provider, other than any such plan, scheme or arrangement that the Company or any of its Subsidiaries is required by Law to maintain or contribute.

(bb) “Environmental Law” means any applicable Law in effect on or prior to the Closing Date relating to the protection of human health (with respect to exposure to Hazardous Substances) or the environment (including ambient air, surface water, groundwater, natural resources or land) or pollution.

(cc) “Environmental Permits” means Governmental Authorizations required under Environmental Laws.

(dd) “ERISA” means the Employee Retirement Income Security Act of 1974.

(ee) “Exchange Act” means the Securities Exchange Act of 1934.

(ff) “Excluded Party” means any Person or Group that includes any Person or Group from whom the Company and its Affiliates or any of their respective Representatives has received an Acquisition Proposal after the execution and delivery of this Agreement and prior to the No-Shop Period Start Date that the Company Board determines in good faith, after consultation with outside legal and financial advisors, is, or would reasonably be expected to lead to, a Superior Proposal; provided, however, that any Person shall immediately and irrevocably cease to be an Excluded Party if, at any time after the No-Shop Period Start Date, the Acquisition Proposal submitted by such Person is withdrawn or terminated or the Company Board determines that such Acquisition Proposal no longer is, or no longer would reasonably be expected to lead to, a Superior Proposal; provided, further, that any Group and any member of such Group shall immediately and irrevocably cease to be an Excluded Party if, at any time after the No-Shop Period Start Date, those Persons who were members of such Group immediately prior to the No-Shop Period Start Date, together with any Affiliates of such Persons, cease to constitute at least 25% of the equity financing of such Group.

(gg) “Financing Sources” means the Persons that have committed to provide the Debt Financing pursuant to the Debt Commitment Letter or otherwise and any joinder agreements, indentures or credit agreements entered into pursuant thereto or relating thereto, together with each other Person that commits to provide or otherwise provides the Alternate Debt Financing in accordance with this Agreement, together with their Affiliates and Representatives involved in the Debt Financing or Alternate Debt Financing and their successors and assigns.

(hh) “FTC” means the United States Federal Trade Commission or any successor thereto.

(ii) “GAAP” means generally accepted accounting principles in the United States, consistently applied and as in effect at the applicable time of measurement.

(jj) “Governmental Authority” means any government, political subdivision, governmental, administrative, Tax, self-regulatory or regulatory entity or body, department, commission, board, agency or instrumentality, or other legislative, executive or judicial governmental entity, and any court, tribunal, judicial or arbitral body, in each case whether federal, national, state, county, municipal, provincial, local, foreign or multinational.

(kk) “Governmental Authorization” means any authorizations, approvals, licenses, franchises, clearances, permits, certificates, waivers, consents, exemptions, variances, expirations and terminations of any waiting period requirements issued by or obtained from, and any notices, filings, registrations, qualifications, declarations and designations with, a Governmental Authority.

(ll) “Group” has the meaning as used in Section 13 of the Exchange Act.

 

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(mm) “Hazardous Substance” means any chemical, pollutant, contaminant, waste, toxic, radioactive or hazardous material, substance or waste defined or regulated under Environmental Laws due to their adverse effect on human health or the environment.

(nn) “HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.

(oo) “Indebtedness” means, with respect to any Person, without duplication: (i) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind to such Person (including, in each case, any interest thereon); (ii) all obligations of such Person evidenced by a note, bond, debenture or similar instrument; (iii) all reimbursement obligations in respect of all drawn amounts owing under letters of credit, bankers’ acceptances, bank guarantees, surety bonds and similar instruments; (iv) all guarantees and arrangements having the economic effect of a guarantee of such Person of any Indebtedness described in the other clauses of this definition of any other Person; (v) all obligations of such Person to pay the deferred purchase price of equity or property (other than trade accounts payable in the ordinary course of business of such Person); or (vi) all obligations in respect of interest rate protection agreements, forward contract, foreign currency hedge or other similar financial contracts and other similar obligations.

(pp) “Intellectual Property” means all intellectual property and rights associated with such intangible assets, including the rights associated with the following: (i) all United States and foreign patents and applications therefor (“Patents”); (ii) all works of authorship, copyrights, copyright registrations and applications therefor (“Copyrights”); (iii) trademarks, service marks, logos, slogans, trade dress rights, Internet domain names and similar designations of origin and rights therein, and registrations and applications for registration thereof, together with all of the goodwill associated with any of the foregoing (“Marks”); (iv) rights in trade secrets, know-how, processes, methodologies, inventions and confidential information; and (v) rights in computer programs, algorithms, databases, compilations and data, technology supporting the foregoing, and all documentation related thereto (“Software”).

(qq) “Intervening Event” means any change, event, effect or circumstance or change in circumstances or facts (including any change in probability or magnitude of circumstances) that (i) was not known to the Company Board nor reasonably foreseeable by the Company Board on the date of this Agreement (or if known by the Company Board, the consequences of which were not known or reasonably foreseeable by the Company Board as of the date of this Agreement) and becomes known to the Company Board prior to the receipt of the Requisite Stockholder Approval and (ii) does not (A) relate to any Acquisition Proposal or (B) result from a breach of this Agreement by the Company or any of its Subsidiaries.

(rr) “Knowledge” of the Company, with respect to any matter in question, means the actual knowledge of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Operating Officer and the persons set forth on Section 1.1(rr) of the Company Disclosure Letter.

(ss) “Law” means any federal, national, state, county, municipal, provincial, local, foreign or multinational, statute, constitution, common law, ordinance, code, decree, order, judgment, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority and any award, order or decision of an arbitrator or arbitration panel with jurisdiction over the parties and subject matter of the dispute.

(tt) “Legal Proceeding” means any claim, action, charge, lawsuit, litigation, investigation, arbitration or other similar legal proceeding brought by or pending before any Governmental Authority, arbitrator or other tribunal.

(uu) “Material Contract” means any of the following Contracts:

(i) any “material contract” (as defined in Item 601(b)(10) of Regulation S-K promulgated by the SEC, other than those agreements and arrangements described in Item 601(b)(10)(iii) of Regulation S-K) to which the Company or any of its Subsidiaries is a party;

 

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(ii) any Contract with (A) respect to the sale or distribution of each of the top 16 products of the Company and (B) each of the ten largest commercial vendors of the Company, in each case as determined by aggregate revenues generated or amounts expended, respectively, over the last twelve months;

(iii) any Contract containing any covenant limiting the right of the Company or any of its Subsidiaries to engage in, or to compete with any Person in, any line of business that is material to the Company, other than any such Contracts that may be cancelled without material liability to the Company or its Subsidiaries upon notice of 90 days or less;

(iv) any Contract under which the Company has continuing obligations and (A) relating to the disposition or acquisition of assets by the Company or any of its Subsidiaries in the past 3 years with a fair market value in excess of $10,000,000; (B) pursuant to which the Company or any of its Subsidiaries acquired in the past 3 years or will acquire any material ownership interest in any other Person or other business enterprise other than any Subsidiary of the Company, with such ownership interest having a fair market value in excess of $10,000,000;

(v) any Contract that (A) contains a “most favored nations” term, (B) establishes any exclusive sale or exclusive purchase obligation with respect to any product or geographic area or (C) requires the Company or any of its Subsidiaries to purchase all of its requirements for a given product from any Person, in each case, which provides for aggregate payments to or by the Company or any of its Subsidiaries in excess of an aggregate of $5,000,000 over the last 12 months;

(vi) any mortgages, indentures, guarantees, loans or credit agreements, security agreements or other Contracts relating to Indebtedness, in each case in excess of $10,000,000 other than (A) accounts receivables and payables in the ordinary course of business consistent with past practice; (B) loans to Subsidiaries of the Company; (C) extensions of credit to customers in the ordinary course of business; and (D) intercompany agreements entered into in the ordinary course of business consistent with past practice;

(vii) any Contract that is an agreement in settlement of a Legal Proceeding or other dispute that imposes material obligations on the Company involving (A) a payment in excess of $10,000,000 entered into in the past 3 years or (B) any material ongoing non-monetary restrictions on the Company, in each case, after the date hereof;

(viii) any Contract that involves a material joint venture, profit sharing, or similar agreement from which the Company or any of its Subsidiaries recognized revenues in excess of $10,000,000 during the four consecutive fiscal quarters ended June 30, 2019;

(ix) any Collective Bargaining Agreements;

(x) any Contract pursuant to which the Company or any of its Subsidiaries grants or is granted by a third party a license or other right to use any material Intellectual Property, other than (A) commercially available Software available to the public generally, (B) assignments or other grants of Intellectual Property by Service Providers or other contractors or consultants, (C) non-exclusive licenses or other rights granted by or to the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice, or (D) non-disclosure or confidentiality agreements; or

(xi) any Contract to agree to do any of the foregoing.

(vv) “NYSE” means the New York Stock Exchange and any successor stock exchange or inter-dealer quotation system operated by the New York Stock Exchange or any successor thereto.

(ww) “Organizational Documents” means the certificate of incorporation, bylaws, certificate of formation, partnership agreement, limited liability company agreement and all other similar documents, instruments or certificates executed, adopted or filed in connection with the creation, formation or organization of a Person.

(xx) “Permitted Liens” means any of the following: (i) liens for Taxes, assessments and governmental charges or levies either not yet delinquent or that are being contested in good faith and by appropriate

 

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proceedings; (ii) mechanics’, carriers’, workmen’s, warehousemen’s, repairmen’s, materialmen’s or other liens or security interests that are not yet due or that are being contested in good faith and by appropriate proceedings; (iii) leases, subleases and licenses for the occupation of real property (other than capital leases and leases underlying sale and leaseback transactions); (iv) liens imposed by applicable Law (other than Laws in respect of Tax); (v) pledges or deposits to secure obligations pursuant to workers’ compensation Law or similar legislation or to secure public or statutory obligations; (vi) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business consistent with past practice; (vii) defects, imperfections or irregularities in title, charges, easements, covenants and rights of way (unrecorded and of record) and other similar liens (or other encumbrances of any type), and zoning, building and other similar codes or restrictions, in each case that do not adversely affect in any material respect the value or current use of the applicable property; (viii) non-exclusive licenses and other grants of rights (including options to be granted a license) with respect to any Intellectual Property entered into in the ordinary course of business consistent with past practice; (ix) liens pursuant to any Company Indebtedness; (x) statutory, common Law or contractual liens (or other encumbrances of any type) securing payments not yet due, including liens of landlords pursuant to the terms of any Lease or liens against the interests of the landlord or owner of any Leased Real Property unless caused by the Company or any of its Subsidiaries; (xi) matters that would be disclosed by an accurate survey or inspection of the Real Property; or (xii) liens (or other encumbrances of any type) that do not materially and adversely affect the use or operation of the property or other assets subject thereto.

(yy) “Person” means any individual, corporation (including any non-profit corporation), limited liability company, joint stock company, general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, firm, Governmental Authority or other enterprise, association, organization or entity.

(zz) “Registered Intellectual Property” means all United States, international and foreign (i) Patents and Patent applications (including provisional applications); (ii) registered Marks and applications to register Marks (including intent-to-use applications and Internet domain names); and (iii) registered Copyrights and applications for Copyright registration.

(aaa) “Regulatory Authority” means any Governmental Authority with authority over the development, testing, investigation, manufacture, storage, distribution, marketing, or sale of the Company’s or any of its Subsidiaries’ products.

(bbb) “Reimbursement Obligations” means Parents’ obligations pursuant to Sections 6.6(f) and 6.6(g).

(ccc) “Sarbanes-Oxley Act” means the Sarbanes-Oxley Act of 2002.

(ddd) “SEC” means the United States Securities and Exchange Commission or any successor thereto.

(eee) “Securities Act” means the Securities Act of 1933.

(fff) “Service Provider” means any current or former director, officer, employee or other individual service provider of the Company or any of its Subsidiaries.

(ggg) “Subsidiary” means, with respect to any Person, any other Person (other than a natural Person) of which securities or other ownership interests (i) having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions or (ii) representing more than 50% such securities or ownership interests, in each case, are at the time directly or indirectly owned by such first Person.

(hhh) “Superior Proposal” means any Acquisition Proposal for an Acquisition Transaction on terms that the Company Board has determined in good faith (after consultation with its financial advisors and outside legal counsel) would reasonably be expected to be consummated in accordance with its terms and would be more favorable, from a financial point of view, to the Company Stockholders than the Merger (taking into account any legal, regulatory, financial, timing, financing and other aspects of such proposal that the Company Board considers relevant and any revisions to this Agreement made or proposed in writing by Parent prior to the time of

 

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such determination). For purposes of the reference to an “Acquisition Proposal” in this definition, all references to “20%” in the definition of “Acquisition Transaction” shall be deemed to be references to “50%.”

(iii) “Tax” means any U.S. federal, state and local and non-U.S. taxes, assessments and similar governmental charges and impositions (including taxes based upon or measured by gross receipts, income, profits, sales, use, or occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, employment, excise and property taxes) imposed by any Governmental Authority, together with any interest, penalties and additions to tax imposed thereon.

(jjj) “Tax Return” means any return, declaration, report, statement, or information return required to be filed with a Governmental Authority with respect to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

(kkk) “Transaction” means the Merger and any other transaction contemplated by this Agreement; provided that when used in relation to the Company and its obligations herein, the reference to “other transaction” shall be deemed to exclude Financing.

(lll) “Transaction Litigation” means any Legal Proceeding commenced or threatened against a Party or any of its Subsidiaries or Affiliates (and/or their respective directors and/or executive officers) or otherwise relating to, involving or affecting such Party or any of its Subsidiaries or Affiliates, in each case in connection with, arising from or otherwise relating to the Transaction, other than any Legal Proceedings among the Parties related to this Agreement or the Financing Letters.

(mmm) “WARN” means the United States Worker Adjustment and Retraining Notification Act of 1988 and any similar state, local or foreign Law.

1.2 Index of Defined Terms. The following capitalized terms have the respective meanings given to them in the respective Sections of this Agreement set forth opposite each of the capitalized terms below:

 

Term

   Section Reference  

Acceptable Confidentiality Agreement

     1.1(a)  

Acquisition Proposal

     1.1(b)  

Acquisition Transaction

     1.1(c)  

Affiliate

     1.1(d)  

Agreement

     Preamble  

Alternate Debt Financing

     6.5(d)  

Alternative Acquisition Agreement

     5.3(b)  

Antitrust Authorities

     6.2(a)  

Antitrust Law

     1.1(e)  

Audited Company Balance Sheet

     1.1(f)  

Business Day

     1.1(g)  

Bylaws

     3.1(b)  

Capitalization Date

     3.7(a)  

Certificate of Merger

     2.2  

Certificates

     2.9(c)  

Charter

     3.1(b)  

Chosen Courts    

     9.10(a)  

Closing

     2.3  

Closing Date

     2.3  

Code

     1.1(h)  

Collective Bargaining Agreement

     3.20(a)  

Company

     Preamble  

Company Board

     1.1(i)  

Company Board Recommendation

     3.3(a)  

Company Board Recommendation Change

     5.3(d)(i)  

 

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Term

   Section Reference  

Company Common Stock

     1.1(k)  

Company Credit Agreement

     1.1(j)  

Company Disclosure Letter

     III  

Company Indebtedness

     1.1(l)  

Company Intellectual Property

     1.1(m)  

Company Material Adverse Effect

     1.1(n)  

Company Non-Voting Common Stock

     1.1(o)  

Company Options

     1.1(p)  

Company Preferred Stock

     1.1(q)  

Company PSUs

     1.1(r)  

Company Related Parties

     8.3(f)(ii)  

Company RSUs

     1.1(s)  

Company SEC Reports

     3.9  

Company Securities

     3.7(c)  

Company Stock Plans

     1.1(t)  

Company Stockholder Meeting

     6.4(a)  

Company Stockholders

     1.1(u)  

Company Voting Common Stock

     1.1(w)  

Confidentiality Agreement

     9.4  

Continuing Employees

     1.1(x)  

Contract

     1.1(y)  

Copyrights

     1.1(qq)  

Cut-Off Date

     5.3(b)  

D&O Insurance

     6.10(c)  

Debt Commitment Letter

     4.11(a)  

Debt Financing

     4.11(a)  

DGCL

     Recitals  

Dissenting Company Shares

     2.7(c)  

DOJ

     1.1(z)  

DTC

     2.9(d)  

Effective Time

     2.2  

Electronic Delivery

     9.14  

Employee Plan

     1.1(aa)  

Environmental Law

     1.1(bb)  

Environmental Permits

     1.1(cc)  

Equitable Exceptions

     3.2  

Equity Award Consideration

     2.8(c)  

Equity Award Holders    

     2.8(d)  

Equity Commitment Letter

     4.11(a)  

Equity Financing

     4.11(a)  

ERISA

     1.1(dd)  

Exchange Act

     1.1(ee)  

Excluded Party

     1.1(ff)  

Fee Funding Arrangement

     Recitals  

Fee Letter

     4.11(a)  

Financing

     4.11(a)  

Financing Letters

     4.11(a)  

Financing Sources

     1.1(gg)  

FTC

     1.1(ii)  

GAAP

     1.1(jj)  

GDPR

     3.17  

 

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Term

   Section Reference  

Governmental Authority

     1.1(kk)  

Governmental Authorization

     1.1(ll)  

Group

     1.1(mm)  

Hazardous Substance

     1.1(nn)  

HSR Act

     1.1(oo)  

Indebtedness

     1.1(pp)  

Indemnified Person

     6.10(a)  

Indemnified Persons

     6.10(a)  

Intellectual Property

     1.1(qq)  

Intervening Event

     1.1(rr)  

Knowledge

     1.1(ss)  

Labor Organization

     3.20(a)  

Law

     1.1(tt)  

Lease

     3.14  

Leased Real Property

     3.14  

Legal Proceeding

     1.1(uu)  

Marks

     1.1(qq)  

Material Contract

     1.1(vv)  

Maximum Annual Premium

     6.10(c)  

Merger

     Recitals  

Merger Sub

     Preamble  

Multiemployer Plan

     3.19(b)  

New Debt Commitment Letters

     6.5(d)  

New Plan

     6.11(d)  

No-Shop Period Start Date

     5.3(a)  

Notice Period

     5.3(e)(ii)(3)  

NYSE

     1.1(ww)  

Old Plans

     6.11(d)  

Option Consideration

     2.8(a)  

Organizational Documents

     1.1(xx)  

Other Indemnified Persons

     6.10(e)  

Other Required Company Filing

     6.3(b)  

Owned Company Shares    

     2.7(a)(iii)  

Owned Real Property

     3.14  

Parent

     Preamble  

Parent Material Adverse Effect

     7.3(a)  

Parent Related Parties

     8.3(f)(i)  

Parent Termination Fee

     8.3(c)  

Party

     Preamble  

Patents

     1.1(qq)  

Payment Agent

     2.9(a)  

Payment Fund

     2.9(b)  

Per Share Price

     2.7(a)(ii)  

Permitted Communications

     6.13  

Permitted Liens

     1.1(yy)