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the absence of legal injunctions or impediments prohibiting the transactions contemplated by the Merger
Agreement; and
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the approval of the listing on the New York Stock Exchange, subject to official notice of issuance, of the
Reporting Persons common stock to be issued in the Merger.
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Upon consummation of the Merger, the Issuer will become a wholly owned
subsidiary of the Reporting Person.
The Merger Agreement also contains (i) customary representations and warranties of the Reporting Person and the
Issuer, and (ii) covenants of the Reporting Person and the Issuer with respect to, among other things, certain actions taken (or not to be taken) prior to the closing of the Merger.
The Merger Agreement contains provisions granting both the Reporting Person and the Issuer the right to terminate the Merger Agreement for certain reasons,
including, among others, if (i) the closing has not occurred by April 8, 2019 (the
Termination Date
), (ii) any governmental authority has issued an order, decree or ruling, or taken any other action (including the
enactment of any statute, rule regulation, decree or executive order) enjoining or prohibiting the Merger, or (iii) under certain conditions, there has been a material breach of any of the representations, warranties, covenants or agreements
set forth in the Merger Agreement by a party to the Merger Agreement that is not cured by the Termination Date. The Merger Agreement further provides that upon termination of the Merger Agreement in connection with a material breach by the Reporting
Person or the Issuer (as applicable), the other will be entitled to reimbursement of its expenses not to exceed $1 million.
The foregoing
description of the Merger Agreement and the transactions contemplated thereby, including the Merger, and the description of the series E preferred stock does not purport to be complete and is qualified in its entirety by reference to the Merger
Agreement and the form of certificate of designation, preferences and rights in respect of the Reporting Persons series E preferred stock (the
Certificate of Designation
) copies of which are attached hereto as Exhibits F and
G and the terms of which are incorporated herein by reference.
The Merger Agreement is incorporated herein by reference to provide investors and security
holders with information regarding its terms. It is not intended to provide any other factual or financial information about the Reporting Person, the Issuer, the other parties to the Merger Agreement or any of their respective subsidiaries and
affiliates. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes of that agreement and as of specific dates, were solely for the benefit of the parties to the Merger Agreement, may be subject to
limitations agreed upon by the parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be
subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of
the actual state of facts or condition of the Reporting Person, the Issuer, the other parties to the Merger Agreement or any of their respective subsidiaries and affiliates. Moreover, information concerning the subject matter of the representations,
warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Reporting Person and the Issuer. The Merger Agreement should not be read alone,
but should instead be read in conjunction with the other information regarding the companies and the Merger that will be contained in, or incorporated by reference into, the registration statement that the Reporting Person will file in connection
with the Merger, as well as in the other filings that each of the Reporting Person and the Issuer make with the SEC.
Item 6. Contracts,
Arrangements, Understandings or Relationships with Respect to Securities of the Issuer.
Item 6 of Schedule 13D is hereby supplemented to incorporate
by reference, Item 4 of this Amendment No. 3.