Item 1.01 Entry into a Material Definitive Agreement.
On
The Merger Agreement provides that, following the consummation of the Offer,
Merger Sub will merge with and into the Company (the "Merger"), with the Company
surviving the Merger as a wholly owned subsidiary of Roche. The Merger will be
governed by Section 251(h) of the General Corporation Law of the
The Company's Board of Directors (the "Board") unanimously determined that the transactions contemplated by the Merger Agreement, including the Offer and the Merger, were advisable and in the best interests of the Company and its stockholders, and unanimously approved the Merger Agreement and the transactions contemplated thereby, and unanimously resolved to recommend, subject to the terms and conditions set forth in the Merger Agreement, that the stockholders of the Company accept the Offer and tender their shares of Common Stock pursuant to the Offer.
Immediately prior to the effective time of the Merger (the "Effective Time"), except as provided in the Merger Agreement, each option to purchase Common Stock, whether vested or unvested, outstanding and unexercised immediately prior to the Effective Time will vest (if unvested) and be cancelled and converted into the right to receive (subject to applicable withholding) (i) the excess, if any, of the Offer Price over the per share exercise price of the option, multiplied by (ii) the number of shares of Common Stock issuable upon exercise of such option. Immediately prior to the Effective Time, except as provided in the Merger Agreement, each restricted stock unit of the Company, whether vested or unvested, outstanding immediately prior to the Effective Time will vest (if unvested) and be cancelled and converted into the right to receive the Offer Price (subject to applicable withholding). Immediately prior to the Effective Time, except as provided in the Merger Agreement, each market-based stock unit of the Company, whether vested or unvested, outstanding immediately prior to the Effective Time will vest (based on the performance level attained pursuant to the terms of the applicable award agreement, including provisions relating to the effect of a change of control) and be cancelled and converted into the right to receive the Offer Price (subject to applicable withholding
Pursuant further to the terms of the Merger Agreement, following the date of the
Merger Agreement, the Company shall take all actions with respect to the
Company's Amended and Restated 2013 Employee Stock Purchase Plan, as amended
from time to time (the "ESPP") to provide that with respect to any offering
periods in effect as of the date of the Merger Agreement (the "Current Purchase
Period"), (i) no employee who is not a participant in the ESPP as of the date of
the Merger Agreement may become a participant in the ESPP and (ii) no employee
participating in the Current Purchase Period may increase his or her payroll
contribution rate pursuant to the ESPP from the rate in effect immediately prior
to the date of the Merger Agreement. In addition, the Current Purchase Period
will end on
The Merger Agreement contains representations and warranties and covenants of
the parties customary for a transaction of this nature, including covenants
regarding the operation of the Company's business prior to the Effective Time.
The Merger Agreement may be terminated under certain circumstances, including by
the Company in specified circumstances in connection with an Acquisition
Proposal (as defined in the Merger Agreement) that the Board determines
constitutes a Superior Proposal (as defined in the Merger Agreement). Upon the
termination of the Merger Agreement, under specified circumstances, the Company
will be required to pay to Roche a termination fee of
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Merger Sub has agreed to commence the Offer as promptly as practicable from the date of the Merger Agreement (but in no event later than ten business days from the first business day following the date of the Merger Agreement). The consummation of the Offer will be conditioned on (i) at least one more than 50% of the total number of shares of outstanding Common Stock having been validly tendered into and not withdrawn from the Offer, (ii) receipt of certain regulatory approvals, including expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, (iii) the accuracy of the representations and warranties of the Company and compliance by the Company with the covenants contained in the Merger Agreement, subject to qualifications, (iv) there not having been a Company Material Adverse Effect (as defined in the Merger Agreement) with respect to the Company since the date of the Merger Agreement, and (v) other customary conditions.
The foregoing description of the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, which is attached as Exhibit 2.1 to this report and incorporated herein by reference.
The Merger Agreement and the foregoing description of the Merger Agreement have
been included to provide investors and stockholders with information regarding
the terms of the Merger Agreement. It is not intended to provide any other
factual information about the Company. The representations, warranties and
covenants contained in the Merger Agreement were made only as of specified dates
for the purposes of such agreement, were solely for the benefit of the parties
to such agreement and may be subject to qualifications and limitations agreed
upon by such parties. In particular, in reviewing the representations,
warranties and covenants contained in the Merger Agreement and discussed in the
foregoing description, it is important to bear in mind that such
representations, warranties and covenants were negotiated with the principal
purpose of allocating risk between the parties, rather than establishing matters
as facts. Such representations, warranties and covenants may also be subject to
a contractual standard of materiality different from those generally applicable
to stockholders and reports and documents filed with the
Important Information
In connection with the proposed acquisition, Merger Sub will commence a tender
offer for the outstanding shares of common stock of the Company. The tender
offer 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 of the Company, nor is it a substitute for the tender
offer materials that Roche and Merger Sub will file with the
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits 2.1* Agreement and Plan of Merger, dated as ofMarch 12, 2021 , amongGenMark Diagnostics, Inc. ,Roche Holdings, Inc. andGeronimo Acquisition Corp. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The
Company hereby undertakes to furnish supplemental copies of any of the omitted
schedules upon request by the
request confidential treatment pursuant to Rule 24b-2 of the Securities
Exchange Act of 1934 for any schedules so furnished.
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