MTS SYSTEMS CORPORATION Item 1.01. Entry into a Material Definitive Agreement.
On
Merger
On the terms, and subject to the conditions, of the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger"), with the Company continuing as the surviving corporation and a wholly owned subsidiary of Parent.
Merger Consideration
As a result of the Merger, each share of the Company's common stock ("Company
Common Stock") issued and outstanding immediately prior to the effective time of
the Merger (the "Effective Time") (other than shares held by (i) the Company,
Parent, Merger Sub or any of their respective subsidiaries and (ii) shareholders
of the Company who have properly exercised their dissenters' rights under
Closing Conditions
Consummation of the Merger is subject to certain closing conditions, including, without limitation, (i) approval of the Merger by the Company's shareholders (the "Company Shareholder Approval"), (ii) expiration or termination of the required waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended and (iii) receipt of any consents or approvals under the competition, antitrust, merger control or foreign investment laws of certain other jurisdictions.
Representations, Warranties and Covenants
The Merger Agreement contains customary representations, warranties and covenants of the Company, Parent and Merger Sub. From the date of the Merger Agreement until the earlier of the Effective Time or termination of the Merger Agreement in accordance with its terms, the Company is required to, and to cause each of its subsidiaries to, use commercially reasonable efforts to conduct its business and operations in all material respects in the ordinary course of business, subject to certain exceptions.
Treatment of Company Options, RSU Awards, Stock Purchase Plan and Equity Plans
Immediately prior to the Effective Time, and contingent upon the Merger, each outstanding option to purchase shares granted under a stock plan of the Company (other than any option granted under the Company's stock purchase plan) (the "Company Options") shall be fully vested and cancelled in exchange for an amount in cash equal to the product of (i) the total number of shares of Company Common Stock subject to such cancelled Company Option multiplied by (ii) the excess, if any, of (a) the Merger Consideration over (b) the exercise price per share of Company Common Stock subject to such cancelled Company Option, without interest. Any Company Option with respect to which the exercise price per share subject thereto is equal or greater than the Merger Consideration shall be cancelled in exchange for no consideration and any payments may be reduced by the amount of required tax withholdings.
2
Immediately prior to the Effective Time, and contingent upon the Merger, each outstanding restricted stock unit award (including, for the avoidance of doubt, each such restricted stock unit that is subject to a deferral election) granted under a stock plan of the Company (the "Company RSU Awards") will be fully vested (each Company RSU Award that is subject to performance-based vesting conditions shall be deemed to be vested at the greater of (i) actual performance determined as of immediately prior to the Effective Time and (ii) target level) and will be cancelled as of the Effective Time in exchange for an amount in cash equal to the product obtained by multiplying (x) the aggregate number of vested restricted stock units subject to such Company RSU Award by (y) the Merger Consideration, without interest. Any payments may be reduced by the amount of required tax withholdings. As of the Effective Time, the stock plans of the Company will be terminated, and no further rights with respect to shares of Company Common Stock or any other awards will be granted thereunder.
No further Phases (as defined in the Company's stock purchase plan) will commence pursuant to the Company's stock purchase plan after the date of the Merger Agreement and any money withheld from a participant's pay pursuant to the plan that has not been used to purchase shares at the end of the final Phase shall be returned to the applicable participant. Immediately prior to and effective as of the Effective Time, the Company will terminate the plan (unless the plan has terminated earlier pursuant to its terms).
On the Closing Date or as soon as practicable thereafter, the Company shall pay all deferred compensation under the deferred compensation plans of the Company (reduced by the amount of required tax withholdings) in accordance with the terms of the applicable plan.
Non-Solicitation; Change of Company Recommendation
From the date of the Merger Agreement until the earlier of the Effective Time of the Merger or termination of the Merger Agreement in accordance with its terms, the Company will be subject to customary "no-solicitation" restrictions requiring, among other things, that it to immediately cease any activities with respect to, and not to initiate, solicit, enter into, engage in, knowingly encourage, continue or otherwise participate in any discussions or negotiations with any person with respect to any Competing Proposal (as defined in the Merger Agreement) made by such person or any inquiry, proposal or offer from such person that constitutes, or would reasonably be expected to lead to, a Competing Proposal.
Notwithstanding the foregoing, prior to the Company obtaining the Company Shareholder Approval, the Board may change its recommendation to the Company's shareholders regarding the Merger, (i) in order to terminate the Merger Agreement and enter into an Alternative Acquisition Agreement (as defined in the Merger Agreement) with respect to a bona fide, written Competing Proposal that did not result from a breach of the "no-solicitation" restrictions if the Board determines in good faith, after consultation with its outside financial advisors and outside legal counsel, that such Competing Proposal constitutes a Superior Proposal (as defined in the Merger Agreement) and that failure to take such action would be reasonably likely to be inconsistent with its fiduciary duties under applicable law, or (ii) in response to an Intervening Event (as defined in the Merger Agreement), in each case of (i) and (ii) only if certain conditions and obligations are satisfied with respect thereto.
Financing
The Merger will be financed through a combination of borrowings under Parent's existing credit and commercial paper facilities as well as cash on hand, and is not subject to a financing condition.
Termination
The Merger Agreement also provides for certain termination rights for both the
Company and Parent, including the right of the Company to terminate the Merger
Agreement prior to receipt of Company Shareholder Approval to accept a Superior
Proposal, subject to certain conditions and obligations including the payment of
the Company Termination Fee. In addition, and subject to certain limitations,
the Merger Agreement can be terminated by either Parent or the Company if (i)
the Merger is not consummated on or before
3
The foregoing description of the Merger Agreement, Merger and other transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Other Matters
The Merger Agreement has been included to provide investors and shareholders with information regarding its terms. It is not intended to provide any other factual information about the Company. The Merger Agreement contains representations and warranties that the parties to the Merger Agreement made to and solely for the benefit of each other and may apply contractual standards of materiality that are different from materiality under applicable securities laws. The assertions embodied in such representations and warranties are qualified by information contained in the confidential disclosure schedules that the Company delivered to Parent in connection with signing the Merger Agreement. Accordingly, investors and shareholders should not rely on such representations and warranties as characterizations of the actual state of facts or circumstances, since they were only made as of the date of the Merger Agreement, are modified in important part by the underlying disclosure schedules and qualified as a way of allocating the risk to one of the parties if those . . .
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On
The foregoing description of the Amended and Restated Bylaws does not purport to be complete and is subject to, and qualified in its entirety by reference to, the full text of the Amended and Restated Bylaws, which is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
4
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
The following exhibits are being furnished herewith:
Exhibit No. Description
2.1 Agreement and Plan of Merger, by and among the Company, Parent and
Merger Sub*
3.1 Amended & Restated Bylaws of the Company
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* The Company has omitted schedules and other similar attachments to such
agreement pursuant to Item 601(b) of Regulation S-K.
Additional Information Regarding the Merger and Where to Find It
This communication does not constitute an offer to sell or the solicitation of
an offer to buy the securities of
Certain Information Regarding Participants in the Solicitation
The Company and certain of its directors, executive officers and employees may,
under the rules of the
5
Cautionary Statement Regarding Forward-Looking Statements
This communication contains forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and Section 21E of the
Securities Exchange Act of 1934, as amended. These statements are based on
current expectations of future events and may include words such as
"anticipate," "believe," "estimate," "expect," "intend," "may," "plan,"
"should," "will" and "would." If underlying assumptions prove inaccurate or
known or unknown risks or uncertainties materialize, actual results could vary
materially from the expectations of the Company. Risks and uncertainties
include, but are not limited to: (i) the risk that the proposed merger may not
be completed in a timely manner or at all, which may adversely affect the
Company's business and the price of its common stock, (ii) the failure to
satisfy the conditions to the consummation of the proposed merger, including the
adoption of the merger agreement (the "Merger Agreement") by the shareholders of
the Company, and the receipt of certain governmental and regulatory approvals,
(iii) the occurrence of any event, change or other circumstance that could give
rise to the termination of the Merger Agreement, (iv) the effect of the
announcement or pendency of the proposed merger on the Company's business
relationships, operating results and business generally, (v) the risk that the
proposed merger disrupts the Company's current plans and operations and
potential difficulties in the Company's employee retention as a result of the
proposed merger and (vi) the outcome of any legal proceedings that may be
instituted against the Company, Parent or Merger Sub related to the Merger
Agreement or the proposed merger. The foregoing list of risk factors is not
exhaustive. Readers are advised to carefully consider the foregoing risk factors
and the other risks and uncertainties that affect the businesses of the Company
described in the "Risk Factors" section of the Company's Annual Report on Form
10-K for the fiscal year ended
6
© Edgar Online, source
