HOUGHTON MIFFLIN HARCOURT COMPANY Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
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The Company's Board of Directors (the "Board") has unanimously approved the Merger Agreement and the transactions contemplated thereby, including the Merger (as defined below) and recommended that the stockholders of the Company accept the Offer and tender their shares of Common Stock pursuant to the Offer. Under the Merger Agreement, the Purchaser is required, as soon as practicable, and in any event within ten Business Days after the date of the Merger Agreement, to commence the Offer to purchase any and all outstanding shares of Company Common Stock. The Offer initially will remain open for twenty business days, subject to possible extension on the terms set forth in the Merger Agreement. The parties currently expect the Offer and the Merger to be completed in the second quarter of 2022.
Pursuant to the terms of the Merger Agreement, (i) as of immediately prior to
the effective time of the Merger (the "Effective Time"), by virtue of the Merger
and without any action on the part of the holders each outstanding share of
Common Stock of the Company, other than any shares held in the treasury of the
Company or owned by any wholly owned Subsidiary of the Company, the Parent, the
Purchaser or any other wholly owned Subsidiary of the Parent or by any
stockholders who are entitled to and who properly exercise appraisal rights
under
The Purchaser's obligation to accept shares of Common Stock tendered in the Offer is subject to customary closing conditions, including: (a) that the number of shares of Company Common Stock validly tendered and not validly withdrawn, together with any shares of Common Stock beneficially owned by the Parent or any subsidiary of the Parent, equals at least one share more than 50% of all shares of Common Stock then outstanding(the "Minimum Condition"); (b) the absence of any legal impediment that has the effect of enjoining, restraining, preventing or prohibiting or prohibiting the consummation of the Offer, the Merger or the other transactions contemplated by the Merger Agreement or making the Offer, the Merger or the other transactions contemplated by the Merger Agreement illegal; (c) that, since the date of the Merger Agreement, there shall not have occurred any material adverse effect with respect to the Company; (d) compliance in all material respects by the Company with its covenants under the Merger Agreement; (e) the continued accuracy of representations and warranties made by the Company in the Merger Agreement, except as permitted by the Merger Agreement; (f) that the waiting period (and
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any extensions thereof) and any approvals or clearances applicable to the Offer and Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, shall have expired, been terminated or obtained; and (g) other customary conditions.
Following the completion of the Offer, subject to the absence of injunctions or other legal restraints preventing the consummation thereof, the Purchaser will merge with and into the Company (the "Merger"), with the Company surviving as a wholly owned subsidiary of the Parent, pursuant to the procedure provided for under Section 251(h) of the Delaware General Corporation Law, without any additional stockholder approvals. The Merger will be effected as soon as practicable following the time of acceptance for purchase by the Purchaser of shares of Common Stock validly tendered and not withdrawn in the Offer.
The Merger Agreement contains customary representations and warranties from both the Company, on the one hand, and the Parent and the Purchaser, on the other hand. It also contains customary covenants, including covenants providing for the Company: (i) to cause each of the Company and its subsidiaries to conduct its business and operations in the ordinary course and in accordance in all material respects with past practice; (ii) not to engage in specified types of transactions during such period; and (iii) not to solicit proposals or, subject to certain exceptions, engage in discussions relating to alternative acquisition proposals or change the recommendation of the Board to the Company's stockholders regarding the Merger Agreement.
The Merger Agreement contains customary termination rights for both the Parent
and the Purchaser, on the one hand, and the Company, on the other hand,
including, among others, for failure to consummate the Offer on or before
If the Merger Agreement is terminated under certain circumstances specified in
the Merger Agreement (including in connection with breach or failure to comply
with any representation, warranty, covenant or agreement on the part of the
Parent or the Purchaser and failure to consummate the transaction upon
satisfaction of Offer conditions), the Parent will be required to pay the
Company a termination fee of
The Parent and the Purchaser have secured committed financing, consisting of a
combination of equity to be provided by the Fund and committed debt financing,
the aggregate proceeds of which will be sufficient for the Parent and the
Purchaser to pay the aggregate
The foregoing description of the Merger Agreement is qualified in its entirety by reference to the Merger Agreement, a copy of which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
The Merger Agreement has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other factual information about the Company, the Parent, the Purchaser or their respective subsidiaries and affiliates. The Merger Agreement contains representations and warranties by the Company, on the one hand, and the Parent and the Purchaser, on the other hand, made solely for the benefit of the other. The assertions embodied in those representations and warranties are subject to qualifications and limitations agreed to by the respective parties in negotiating the terms of the Merger Agreement, including information in confidential disclosure schedules delivered in connection with the signing of the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were made as of a specified date, may be subject to a contractual standard of materiality different from what might be viewed as . . .
Item 7.01 Regulation FD Disclosure.
On
The information in this Item 7.01 of this Current Report on Form 8-K, including the accompanying Exhibit 99.1, shall not be deemed "filed" for the purposes of Section 18 of the Securities Exchange Act of 1934 or otherwise subject to the liabilities under that section. Furthermore, the information in this Item 7.01 of this Current Report on Form 8-K, including the accompanying Exhibit 99.1, shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933.
Important Information
The tender offer for the outstanding shares of Common Stock has not yet
commenced. This communication is for informational purposes only and is neither
an offer to purchase nor a solicitation of an offer to sell shares of Common
Stock. The solicitation and offer to buy shares of Common Stock will only be
made pursuant to the tender offer materials that the Parent intends to file with
the
Forward-Looking Statements
This filing includes forward-looking statements which reflect management's current views and estimates regarding the ability of the parties to complete the proposed transaction and the expected timing of completion of the proposed transaction, among other matters. The words "anticipate", "assume", "believe", "continue", "could", "estimate", "expect", "forecast", "future", "guidance", "imply", "intend", "may", "outlook", "plan", "potential", "predict", "project", and similar terms and phrases are intended to identify forward-looking statements, although not all forward-looking statements contain these identifying words. the Company cannot assure investors that future developments affecting the Company will be those that it has anticipated. Actual results may differ materially from these expectations due to, among other things: (i) uncertainties as to the timing and expected financing of the tender offer; (ii) the risk that the proposed transaction may not be completed in a timely manner or at all; (iii) the possibility that competing offers or acquisition proposals for the Company will be made; (iv) uncertainty surrounding how many of the Company's stockholders will tender their shares in the tender offer; (v) the possibility that any or all of the various conditions to the consummation of the tender offer may not be satisfied or waived, including the failure to receive any required regulatory approvals from any applicable governmental entities; (vi) the possibility of business disruptions due to transaction-related uncertainty; (vii) the occurrence of any event, change or other
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circumstance that could give rise to the termination of the merger agreement;
(viii) the risk that stockholder litigation in connection with the proposed
transaction may result in significant costs of defense, indemnification and
liability; and (ix) and other risks and uncertainties including those identified
under the heading "Risk Factors" in the Company's most recent Annual Report on
Form 10-K and Quarterly Reports on Form 10-Q, each of which are filed with the
Any forward-looking statement made by the Company in this filing speaks only as of the date hereof. Factors or events that could cause actual results to differ may emerge from time to time, and it is not possible for the Company to predict all of them. the Company does not undertake and specifically disclaims any obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future developments or otherwise, except as may be required by any applicable securities laws.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofFebruary 21, 2022 by and among the Parent, the Purchaser and the Company 99.1 Joint Press Release, datedFebruary 22, 2022 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. A
list identifying the contents of all omitted exhibits and schedules can be
found on page iii of Exhibit 2.1.
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