Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
Momentive's Board of Directors (the "Board") unanimously determined that the transactions contemplated by the Merger Agreement, including the Merger, are in the best interests of Momentive and its stockholders, and approved the Merger Agreement and the transactions contemplated by the Merger Agreement. The Board also unanimously resolved to recommend that Momentive's stockholders vote to adopt the Merger Agreement and approve the Merger.
Pursuant to the Merger Agreement, at the effective time of the Merger (the
"Effective Time"), each share of common stock of Momentive, par value
Pursuant to the Merger Agreement, at the Effective Time, each Momentive outstanding restricted stock unit (a "Company RSU") under the applicable Equity Plan of Momentive that is vested at the Effective Time (but not yet settled) or that vests as a result of the consummation of transactions contemplated by the Merger Agreement will, automatically and without any required action on the part of the holder thereof, be cancelled and converted solely into the right to receive an amount in cash (without interest) equal to (1) the total number of shares of Common Stock subject to such vested Company RSU immediately prior to the Effective Time, multiplied by (2) the Per Share Price, less applicable Taxes required to be withheld with respect to such payment. Pursuant to the Merger Agreement, at the Effective Time, each outstanding Company RSU under the applicable Equity Plan of Momentive that is not vested at the Effective Time will, automatically and without any required action on the part of the holder thereof, be cancelled and converted solely into the contingent right to receive a cash award equal to (1) the total number of shares of Common Stock subject to such unvested Company RSU immediately prior to the Effective Time, multiplied by (2) the Per Share Price, less applicable Taxes required to be withheld with respect to such payment, which resulting payment will be subject to the same vesting terms and conditions as applied to such unvested Company RSU immediately prior to the Effective Time, with payment forfeited to the extent vesting is not satisfied.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding share of Momentive restricted stock ( "Company Restricted Stock") under the applicable Equity Plan of Momentive, excluding shares of Company Restricted Stock that vest immediately prior to or as of the Effective Time including as a result of the consummation of the transactions contemplated by the Merger Agreement, will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the contingent right to receive a cash award equal to (1) the total number of shares of Common Stock subject to such outstanding Company Restricted Stock award immediately prior to the Effective Time (as determined in accordance with the applicable award agreement), multiplied by (2) the Per Share Price, less applicable Taxes required to be withheld with respect to such payment, which resulting payment will be subject to the same vesting terms and conditions as applied to such Company Restricted Stock award immediately prior to the Effective Time, with payment forfeited to the extent vesting is not satisfied.
Pursuant to the Merger Agreement, at the Effective Time, each outstanding option to purchase shares of Common Stock under the applicable Equity Plan of Momentive that is vested at the Effective Time will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the right to receive (without interest) an amount in cash equal to (1) the total number of shares of Common Stock subject to such vested option multiplied by (2) the excess, if any, of (a) the Per Share Price over (b) the exercise price per share of such vested option, less applicable Taxes required to be withheld with respect to such payment. Pursuant to the Merger Agreement, at the Effective Time, each outstanding option to purchase shares of Common Stock under the applicable Equity Plan of Momentive that is not vested at the Effective Time will, automatically and without any required action on the part of the holder thereof, be cancelled and converted into the contingent right to receive a cash award equal to (1) the total number of shares of Common Stock subject to such unvested option immediately prior to the Effective Time, multiplied by (2) the excess, if any, of (a) the Per Share Price over (b) the exercise price per share of such unvested option, less applicable Taxes required to be withheld with respect to such payment, which resulting payment will be subject to the same vesting terms and conditions as applied to such unvested options immediately prior to the Effective Time. Any option (whether vested or unvested) to purchase shares of Common Stock that has an exercise price per share that is greater than or equal to the Per Share Price will be cancelled at the Effective Time for no consideration or payment.
Completion of the Merger is subject to customary closing conditions, including (1) the adoption of the Merger Agreement by the holders of a majority of the outstanding shares of Common Stock; (2) the expiration or early termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of certain other specified regulatory approvals; and (3) the absence of an order or law preventing the Merger.
The Merger Agreement contains customary representations, warranties and
covenants made by each of Momentive, Parent and Merger Sub, including, among
others, covenants by Momentive regarding the conduct of its business prior to
the closing of the Merger. Momentive is also subject to customary "no-shop"
restrictions on its ability (and the ability of its subsidiaries and
representatives) to (1) solicit, initiate, propose or induce the making,
submission or announcement of, or knowingly encourage, facilitate or assist
alternative acquisition proposals from third parties; (2) subject to certain
exceptions, provide nonpublic information relating to Momentive or any of its
subsidiaries to third parties in connection with alternative acquisition
proposals, or (3) subject to certain exceptions, participate or engage in
discussions or negotiations with third parties regarding alternative acquisition
proposals. In addition, Momentive has agreed that, subject to certain
exceptions, the Board will not withdraw its recommendation that Momentive's
stockholders vote to adopt the Merger Agreement. Momentive has also agreed that
it will file with the
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Either Momentive or Parent may, subject to certain exceptions, terminate the
Merger Agreement if (1) the Effective Time has not occurred by
Upon termination of the Merger Agreement under specified circumstances,
Momentive will be required to pay Parent a termination fee of
Upon termination of the Merger Agreement under other specified circumstances,
Parent will be required to pay Momentive a termination fee of
The Merger Agreement also provides that Momentive, on one hand, or Parent and
Merger Sub, on the other hand, may specifically enforce the obligations under
the Merger Agreement, including the obligation to consummate the Merger if the
conditions set forth in the Merger Agreement are satisfied. Parent's and Merger
Sub's aggregate liability for monetary damages for breaches of the Merger
Agreement are capped at
Pursuant to an equity commitment letter dated
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1 and incorporated herein by reference.
A copy of the Merger Agreement has been included to provide Momentive's stockholders and other security holders with information regarding its terms and is not intended to provide any factual information about Momentive, Parent, Merger Sub or their respective affiliates. The representations, warranties and covenants contained in the Merger Agreement have been made solely for the purposes of the Merger Agreement and as of specific dates; were made solely for the benefit of the parties to the Merger Agreement; are not intended as statements of fact to be relied upon by Momentive's stockholders or other security holders, but rather as a way of allocating the risk between the parties . . .
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1 Agreement and Plan of Merger, datedMarch 13, 2023 , amongMercury Bidco LLC ,Mercury Merger Sub, Inc. andMomentive Global Inc. * 10.1 Form of Voting Agreement, datedMarch 13, 2023 , amongMercury Bidco LLC ,Mercury Merger Sub, Inc. ,Momentive Global Inc. and certain stockholders ofMomentive Global Inc. * 99.1 Press Release, datedMarch 13, 2023 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K.
Momentive will furnish supplementally a copy of any omitted schedule or exhibit
to the
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