Item 1.01 Entry into a Material Definitive Agreement.
On
Offer and Merger. Pursuant to the Merger Agreement, on the terms and subject to
the conditions set forth in the Merger Agreement, as promptly as practicable and
in any event within the 10-business day period commencing on the first business
day after the date of the Merger Agreement, Acquisition Sub will commence a
tender offer (the "Offer") to purchase (subject to the Minimum Tender Condition
(as defined below) and other customary conditions) all of the outstanding shares
of common stock,
Pursuant to the Merger Agreement, at the effective time of the Merger (the "Effective Time"), each Company Share (excluding any (i) shares held by the Company, Parent, Acquisition Sub or any subsidiary of any of the foregoing, (ii) Company Restricted Shares (as defined in the Merger Agreement) and (iii) shares held by stockholders who are entitled to and have preserved their appraisal rights under Section 262 of the DGCL) that is outstanding immediately prior to the Effective Time shall be cancelled, shall cease to exist, shall no longer be outstanding, and shall be converted into the right to receive, in cash, without interest, the Per Share Amount.
The transaction is expected to close in the fourth quarter of 2020, subject to the satisfaction of the Minimum Tender Condition, the receipt of specified regulatory approvals and other customary closing conditions.
Treatment of Outstanding Equity Awards. Pursuant to the terms of the Merger Agreement, immediately prior to the Effective Time:
• Each outstanding Company Option (as defined in the Merger Agreement) will be accelerated and the holder thereof will be entitled to receive, for each share underlying such Company Option, an amount in cash equal to the Per Share Amount minus the exercise price per Company Share. Any Company Option with an exercise price per share that is greater than or equal to the Per Share Amount will be cancelled for no consideration. • Each outstanding Company RSU (as defined in the Merger Agreement) will be accelerated and the holder thereof will be entitled to receive, for each share underlying such RSU, an amount in cash equal to the Per Share Amount. • Each outstanding Company PSU (as defined in the Merger Agreement) will be cancelled and the holder thereof will be entitled to receive the number of Company Shares underlying such Company PSU earned based on projected performance measured by achievement against relevant performance goals based onJuly 2020 forecasts. For each such underlying Company Share, each holder thereof will be entitled to receive an amount in cash equal to the Per Share Amount. • Each outstanding Company Restricted Share will be cancelled and the holder thereof will be entitled to receive an amount in cash equal to the Per Share Amount.
Financing. The consummation of the Offer and the Merger are not subject to a financing condition.
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Conditions to the Offer. The obligations of Acquisition Sub to accept for payment and pay for any Company Shares validly tendered and not properly withdrawn pursuant to the Offer are subject to the satisfaction of conditions specified in the Merger Agreement, including (i) that there shall have been validly tendered (excluding Company Shares tendered pursuant to guaranteed delivery procedures that have not yet been "received" by the "depository," as such terms are defined in Section 251(h) of the DGCL) and not properly withdrawn that number of Company Shares that, when added to the Company Shares then beneficially owned by Parent and its affiliates, constitute at least a majority of the total number of then issued and outstanding Company Shares (the "Minimum Tender Condition"), (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act") applicable to the purchase of Company Shares pursuant to the Offer, (iii) the accuracy of the Company's representations and warranties in the Merger Agreement and its compliance with its covenants and obligations in the Merger Agreement, subject to certain exceptions, and (iv) the absence of judgments or laws enjoining, restraining, prohibiting, preventing or making illegal the making of the Offer, the consummation of the Offer or the Merger.
Representations, Warranties and Covenants; Non-Solicitation. The Merger Agreement contains customary representations, warranties and covenants of the Company, Parent and Acquisition Sub. These covenants include an obligation of the Company, subject to certain exceptions, to and to cause its subsidiaries to conduct its operations in all material respects in the ordinary course of business for the period between the execution of the Merger Agreement and the earlier of (i) the Acceptance Time (as defined in the Merger Agreement), or (ii) the date of termination of the Merger Agreement. Each of the Company, Parent and Acquisition Sub have also agreed to promptly make and effect all registrations, filings and submissions required to be made or effected by it pursuant to the HSR Act, the Securities Exchange Act of 1934, as amended, and other applicable legal requirements with respect to the Offer and the Merger. The Merger Agreement also requires the Company to and to cause its financial advisor, its subsidiaries and their respective officers and directors to, immediately cease and cause to be terminated any existing solicitation of, or negotiations or discussions with, any person relating to any Acquisition Proposal (as defined in the Merger Agreement) and restricts the Company's ability to, among other things, solicit, initiate, or knowingly encourage or knowingly facilitate the inquiry, submission or announcement of, or participate or engage in any discussions or negotiations with respect to, an Acquisition Proposal or furnish any information to any third party in response to, or in a manner that would reasonably be expected to lead to, an Acquisition Proposal, subject to certain limited exceptions. The Merger Agreement also contains covenants that require, subject to certain limited exceptions, the Company Board to recommend that the stockholders of the Company accept the Offer and tender their Company Shares to Acquisition Sub in the Offer. However, subject to compliance with certain terms and conditions in the Merger Agreement, (i) in the event the Company Board receives a Superior Proposal (as defined in the Merger Agreement) the Company Board is permitted to change its recommendation to the Company's stockholders and cause the Company to terminate the Merger Agreement to enter into such Superior Proposal and (ii) the Company Board is permitted to change its recommendation to the Company's stockholders in response to a Change in Circumstances (as defined in the Merger Agreement).
Termination; Termination Fees. The Merger Agreement also provides for certain
termination rights for both the Company and Parent. Upon termination of the
Merger Agreement under certain circumstances, the Company is obligated to pay
Parent a termination fee equal to
Under certain circumstances, Parent is obligated to pay the Company a
termination fee equal to
Item 8.01 Other Events.
On
Additional Information
The tender offer for the outstanding common stock of Rosetta Stone has not yet
commenced. This document and any other materials referenced herein do not
constitute an offer to purchase nor a solicitation of an offer to sell shares of
Rosetta Stone's common stock. At the time the tender offer is commenced,
Forward-Looking Statements
This press release contains forward-looking statements, including, without
limitation, statements relating to the expected benefits of the proposed
transaction and the timing of the closing of the proposed transaction.
Generally, forward-looking statements can be identified by non-historical
statements and often include words such as "forecasts," "potential," "believes,"
"expects," "anticipates," "estimates," "intends," "plans," "seeks" or words of
similar meaning, or future-looking or conditional verbs, such as "will,"
"should," "could," "may," "might," "aims," "intends," "projects," or similar
words or phrases. You should not place undue reliance on these statements. These
statements are based on current expectations, forecasts and assumptions of
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clearances related to the merger; uncertainties as to the timing of the tender
offer and subsequent merger, including that the offer and merger will not close
within the anticipated time periods, or at all; uncertainties as to how many
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
2.1 Agreement and Plan of Merger, dated as ofAugust 29, 2020 , by and amongCambium Holding Corp. ,Empower Merger Sub Inc. , andRosetta Stone Inc. * 99.1 Joint press release ofRosetta Stone Inc. andCambium Holding Corp. datedAugust 31, 2020 . * The Company agrees to furnish supplementally a copy of any omitted exhibit or schedule to theSecurities and Exchange Commission upon request.
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