Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions thereof, Parent has agreed to cause Purchaser to commence a tender
offer (the "Offer") to purchase all of the outstanding shares of common stock of
the Company, par value
The board of directors of the Company (the "Company Board") has unanimously (i) approved, adopted and declared advisable the Merger Agreement and the Transactions, (ii) determined that the Transactions are in the best interest of the Company and its stockholders, (iii) resolved that the Merger shall be governed by and effected under Section 251(h) of the DGCL and (iv) resolved to recommend that the stockholder of the Company accept the Offer and tender their Shares to Purchaser pursuant to the Offer.
The Merger Agreement provides that each option to acquire Shares (each a "Company Option") that is outstanding and exercisable immediately prior to the Effective Time (as defined in the Merger Agreement) shall be cancelled and converted into the right to receive from Parent an amount of cash, without interest, equal to the product of: (a) the aggregate number of Shares subject to such Company Option, multiplied by (b) the excess, if any, of the Merger Consideration over the per share exercise price under such Company Option, less any taxes required to be withheld. If the per share exercise price under any Company Option is equal to or greater than the Merger Consideration or if any Company Option is not exercisable immediately prior to the Effective Time, such Company Option shall be cancelled as of the Effective Time without payment and shall have no further force or effect.
The Merger Agreement also provides that each restricted stock unit award issued by the Company (each a "Company RSU") that is outstanding immediately prior to the Effective Time will vest in full and become free of restrictions and shall be cancelled and converted automatically into the right to receive from Parent an amount in cash, without interest, equal to the Merger Consideration less any taxes required to be withheld.
The Offer will initially remain open for 20 business days following the
commencement of the Offer. If, at the scheduled expiration time of the Offer,
any of the conditions of the Offer have not been satisfied (unless such
condition is waivable by Parent or Purchaser and has been waived), Purchaser may
extend the Offer for subsequent periods of up to 10 business days each.
Additionally, Purchase must extend the Offer (i) for any period required by
applicable law (including any applicable interpretations or positions of the
The obligation of Purchaser to accept for payment, and pay for, Shares validly tendered (and not validly withdrawn) pursuant to the Offer is subject to satisfaction or waiver, to the extent permitted under applicable legal requirements, of customary conditions, including (i) there being validly tendered and not properly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Parent and Purchaser, represent one more Share than 50% of the total number of the then-issued and
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outstanding Shares at the expiration of the offer (the "Minimum Condition"), (ii) the accuracy of the Company's representations and warranties (subject to customary materiality and "material adverse effect" thresholds), (iii) the Company's compliance or performance in all material respects of the obligations, covenants and agreements it is required to comply with or perform at or prior to the expiration of the Offer, (iv) the absence, since the date of the Merger Agreement, of a Company Material Adverse Effect (as defined in the Merger Agreement) that is continuing as of the time of the Purchaser accepts Shares for purchase pursuant to the Offer, (v) the expiration or termination of the waiting period (or any extension thereof) applicable to the Transactions under the HSR Act, (vi) the absence of any law or order prohibiting the consummation of the Offer or the Merger, and (vii) the Merger Agreement not having been terminated in accordance with its terms. If the conditions of the Offer are satisfied or waived (other than conditions that by their nature are to be satisfied or waived at the expiration of the Offer), then Purchaser must (x) irrevocably accept for payment all of the Shares tendered pursuant to the Offer and (y) pay the Offer Price in respect of each such Share.
The Merger Agreement includes certain representations, warranties and covenants of the Company, Parent and Purchaser, including certain restrictions with respect to the Company's business between the date of the Merger Agreement and the consummation of the Merger. Parent and the Company also agreed to use their respective reasonable best efforts to take all actions, to file all documents and to do all things necessary, proper or advisable under applicable antitrust laws to consummate and make effective the Offer and the Merger as soon as reasonably practicable. However, Parent is not required to make divestitures, commit to any licenses or hold separate requirements or litigate or defend the Transactions in connection with any applicable antitrust laws, except, in each case, for such action that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect or that would not reasonably be expected to materially and adversely impair the benefits of the Offer and Merger to Parent and its Subsidiaries, taken as a whole. Parent and Purchaser may not take any action that would reasonably be expected to prevent or materially delay consummation of the Offer and the Merger, including enter into any competing transactions that would potentially delay the Transactions.
The Company has agreed to customary "no-shop" restrictions on its ability to
solicit alternative transaction proposals from third parties and engage in
discussions or negotiations with third parties regarding transaction proposals.
Notwithstanding these restrictions, the Company may under certain circumstances
provide information to and engage in or otherwise participate in discussions or
negotiations with third parties with respect to a bona fide, unsolicited written
alternative acquisition proposal that the board of directors of the Company (the
"Board") has determined in good faith, after consultation with its financial
advisor and outside legal counsel, constitutes or could reasonably be expected
to result in 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. Pursuant to the Merger Agreement, the
Company has agreed that the Board will (i) recommend that the stockholders of
the Company accept the Offer and tender their Shares to Purchaser pursuant to
the Offer (the "Board Recommendation") and (ii) include the Board Recommendation
in the Company's Tender Offer Solicitation/Recommendation Statement on Schedule
14D-9 (the "Schedule 14D-9") when filed with the
Item 7.01 Regulation FD Disclosure
On
In accordance with General Instruction B.2 of Form 8-K, the information in Item 7.01 of this Current Report on Form 8-K, including Exhibit 99.1, shall not be deemed to be "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Cautionary Statement Regarding Forward-Looking Statements
Portions of this document may constitute "forward-looking statements" as defined by the Private Securities Litigation Reform Act of 1995. Although Parent and the Company believe any such statements are based on reasonable assumptions, there is no assurance that actual outcomes will not be materially different. All forward-looking statements are based upon information available to Parent and the Company on the date of this document. Neither Parent nor the Company undertake any obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
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Some forward-looking statements discuss Parent's and the Company's plans, strategies and intentions. They use words such as "expects," "may," "will," "believes," "should," "would," "could," "approximately," "anticipates," "estimates," "targets," "intends," "likely," "projects," "positioned," "strategy," "future," and "plans." In addition, these words may use the positive or negative or other variations of those terms. Forward-looking statements also include all other statements in this document that are not historical facts.
Factors that may cause the actual results to be materially different from the
future results expressed by the forward-looking statements include, but are not
limited to: the ability of Parent and the Company to complete the transactions
contemplated by the Merger Agreement dated
Additional Information about the Acquisition and Where to Find It
The tender offer for the outstanding common stock of the Company has not been
commenced. This filing does not constitute a recommendation, an offer to
purchase or a solicitation of an offer to sell the Company securities. At the
time the tender offer is commenced, Parent and Purchaser will file a Tender
Offer Statement on Schedule TO (including an Offer to Purchase) with the
Item 9.01 Financial Statements and Exhibits
(d) Exhibits Exhibit Number Description 2.1* Agreement and Plan of Merger datedApril 13, 2022 amongVidler Water Resources, Inc. , D.R. Horton, Inc., andPotable Merger Sub, Inc. 99.1 Joint Press Release issued by D.R. Horton, Inc. andVidler Water Resources, Inc. , datedApril 14, 2022 104 Cover Page Interactive Data File, formatted in Inline Extensible Business Reporting Language (iXBRL)
* Schedules omitted pursuant to Items 601(a)(5) and 601(b)(2) of Regulation S-K.
The registrant agrees to furnish a copy of any omitted schedules to the
upon request; provided, however, that the registrant may request confidential
treatment pursuant to Rule 24b-2 of the Exchange Act for any schedules so
furnished. 5
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