Item 1.01. Entry into a Material Definitive Agreement.
Overview
On
The Merger Agreement was approved by Company's Board of Directors (the "Company Board"). The Company Board resolved to recommend the adoption of the Merger Agreement and approval of the transactions contemplated thereby by Company's stockholders, who will be asked to vote on the adoption of the Merger Agreement and approval of the transactions contemplated thereby at a special stockholders meeting.
Pursuant to the Merger Agreement, at the effective time of the Merger (the
"Effective Time"), each share of Class A Common stock, par value
At the Effective Time, each share of Company's 5.625% Series A Cumulative
Perpetual Convertible Preferred Stock ("Series A Preferred Stock") issued and
outstanding immediately prior to the Effective Time shall remain issued and
outstanding as Series A Preferred Stock of the
Treatment of Compensation Awards
Pursuant to the Merger Agreement, at the Effective Time, except as otherwise agreed in writing between Parent and any individual holder, all outstanding awards granted under the Company's 2010 Equity and Incentive Plan and 2020 Equity Incentive Plan, each as amended from time to time, will be treated as follows:
? each outstanding restricted stock unit award ("Company RSU") (other than a Director RSU (as defined in the Merger Agreement)) that is or will become vested at the Effective Time in accordance with its terms will be canceled and converted into the right to receive an amount in cash (without interest and less any applicable withholding taxes) equal to the product of (i) the number of shares of Company Common Stock subject to such Company RSU immediately prior to the Effective Time, and (ii) the Merger Consideration;
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? each outstanding Company RSU THAT IS NOT AND WILL NOT BECOME VESTED AT the Effective Time in accordance with its terms will be assumed by Parent, subject to the same terms and conditions applicable to such Company RSU immediately prior to the Effective Time, except that such Company RSU shall be in respect of a number of Parent Common Shares (as defined in the Merger Agreement) that is equal to (i) the number of shares of Company Common Stock underlying such Company RSU immediately prior to the Effective Time, multiplied by (ii) a fraction, (A) the numerator of which is the Merger Consideration and (B) the denominator of which is the average closing price, rounded to the nearest cent, per Parent Common Share on theNew York Stock Exchange for the period of ten consecutive trading days immediately preceding (but not including) the Effective Time (the "Exchange Ratio"); ? each outstanding deferred cash award ("Company DCA") that is or will become vested at the Effective Time in accordance with its terms will be canceled and converted into the right to receive an amount in cash equal to the amount of such Company DCA, plus any then-accrued and unpaid interest calculated in accordance with the terms of the applicable award agreement, less applicable taxes required to be withheld with respect to such payment; ? each outstanding Company DCA THAT IS NOT AND WILL NOT BECOME VESTED AT the Effective Time in accordance with its terms will be assumed by Parent, subject to the same terms and conditions applicable to such Company DCA; ? each outstanding performance stock unit award ("Company PSU") for which the applicable performance period is complete but has not yet been settled as of immediately prior to the Effective Time will be canceled and converted into the right to receive an amount in cash (without interest and less any applicable withholding taxes) equal to the product of (i) the number of shares of Company Common Stock subject to such Company PSU immediately prior to the Effective Time, based on actual achievement of applicable performance goals as reasonably determined by the compensation committee of the Company Board, and (ii) the Merger Consideration; ? each outstanding Company PSU for which the applicable performance period is not complete as of immediately prior to the Effective Time will be assumed by Parent, based on target level of performance (other than any Company PSU which applicable performance period ends on or beforeDecember 31, 2022 , in which case, such assumption will be based actual achievement of applicable performance goals prior to the Effective Time as reasonably determined by the compensation committee of the Company Board) and otherwise subject to the same terms and conditions applicable to such Company PSU, except that such assumed Company PSU shall (i) no longer be subject to performance conditions following the Effective Time and (ii) be in respect of a number of Parent common shares that is equal to (A) the number of shares of Company Common Stock underlying such Company, multiplied by (B) Exchange Ratio; and ? each outstanding Director RSU (whether vested or unvested) immediately prior to the Effective Time will be canceled and converted into the right to receive an amount in cash (without interest) equal to the product of (i) the number of shares of Company Common Stock subject to such Director RSU, and (ii) the Merger Consideration.
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Representations, Warranties and Covenants
Company has made customary representations, warranties and covenants in the Merger Agreement, including, among others, covenants (i) to use reasonable best efforts to conduct its business in the ordinary course in all material respects and to maintain and preserve substantially intact its business organization, employees and advantageous business relationships that are material to Company during the interim period between the execution of the Merger Agreement and the consummation of the Merger, (ii) not to engage in specified types of transactions or take specified actions during this period unless agreed to in writing by Parent and (iii) subject to certain exceptions, not to withhold, withdraw, modify or qualify in a manner adverse to Parent the recommendation of the Board of Directors of Company that Company's stockholders vote to adopt the Merger Agreement and approve the transactions contemplated thereby.
Under the Merger Agreement, each of Company and Parent has agreed to use its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to cause the conditions to closing to be satisfied and to consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by the Merger Agreement.
Parent is not required to take any action, or commit to take any action, or agree to any condition or restriction, in connection with obtaining the Requisite Regulatory Approvals (as defined in the Merger Agreement) that, individually or in the aggregate, would have or would be reasonably expected to have a material adverse effect on (i) the business, results of operations or financial condition of Company or (ii) the business, results of operations or financial condition of Parent (with Parent deemed to be the same size as Company for this purpose) (a "Materially Burdensome Regulatory Condition").
No-Shop; Change of Recommendation
Under the Merger Agreement, Company is subject to a customary "no-shop" provision that restricts Company and its representatives from soliciting Acquisition Proposals (as defined in the Merger Agreement) from third parties or providing information to or engaging or participating in any discussions or negotiations with third parties regarding Acquisition Proposals. However, prior . . .
Item 8.01. Other Events.
On
Cautionary Note Regarding Forward-looking Statements
This communication contains certain forward-looking statements that may constitute "forward-looking statements" within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. In some cases, you can identify these statements by forward-looking terms such as "may," "might," "will," "would," "could," "should," "expect," "plan," "anticipate," "believe," "estimate," "predict," "project," "possible," "potential," "intend," "seek" or "continue," the negative of these terms and other comparable terminology or similar expressions.
These forward-looking statements represent only Company's beliefs regarding future events (many of which, by their nature, are inherently uncertain and beyond Company's control) and are predictions only, based on Company's current expectations and projections about future events. There are important factors that could cause Company's actual results, level of activity, performance or achievements to differ materially from those expressed or implied by the forward-looking statements, including, among others:
? the parties' ability to consummate the proposed transaction in within the expected time-frame or at all; ? the satisfaction or waiver of the conditions to the completion of the proposed transaction, including the receipt of the required approval of Company's stockholders with respect to the proposed transaction and the receipt of regulatory clearances required to consummate the proposed transaction, in each case, on the terms expected or on the anticipated schedule;
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? the risk that the parties may be unable to achieve the anticipated benefits
of the proposed transaction within the expected time-frames or at all; ? the possibility that competing offers or acquisition proposals for Company
will be made; ? the occurrence of any event that could give rise to the termination of the
proposed transaction, including in circumstances which would require Company
to pay a termination fee; ? the effect of the announcement or pendency of the proposed transaction on
Company's ability to retain and hire key personnel and its ability to
maintain relationships with its customers, clients, vendors and others with
whom it does business; ? risks related to diverting management's attention from Company's ongoing business operations; and ? the risk that stockholder litigation in connection with the proposed
transaction may result in significant costs of defense, indemnification and
liability and may delay the proposed transaction.
In particular, you should consider the risks outlined under Item 1A - "Risk
Factors" in Company's Annual Report on Form 10-K for the year ended
Additional Information and Where to Find It
This communication may be deemed to be solicitation material in respect of the
proposed transaction between
Participants in Solicitation
Company and its directors and executive officers may be deemed to be
participants in the solicitation of proxies from the holders of shares of
Company common stock in respect of the proposed transaction. Information about
the directors and executive officers of Company is set forth in the proxy
statement for Company's 2022 Annual Meeting of Stockholders, which was filed
with the
Additional information concerning the interests of Company's participants in the solicitation will be set forth in the Proxy Statement (when available). Investors may obtain additional information regarding the interests of such participants by reading the Proxy Statement. You may obtain free copies of these documents using the sources indicated above.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
2.1 Agreement and Plan of Merger, dated as ofAugust 1, 2022 , by and amongCowen Inc. , The Toronto-Dominion Bank and Crimson Holdings Acquisition Co.* 3.1 Amendment to the Second Amended and Restated By-laws ofCowen Inc. 99.1 Joint Press Release, datedAugust 2, 2022 , issued by Company and Parent.
104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* The schedules and exhibits have been omitted pursuant to Item 601(a)(5) of
Regulation S-K. Company agrees to furnish supplementally a copy of such
schedules and exhibits, or any section thereof, to the
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