Filing Details

*	The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

Closing Conditions

The obligation of the parties to consummate the Merger is subject to customary conditions, including (i) the adoption of the Merger Agreement by holders of a majority of the outstanding shares of Issuer Common Stock entitled to vote thereon (the “Stockholder Approval”), (ii) the expiration or early termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, (iii) the receipt of all specified governmental consents and approvals, and the termination or expiration of all applicable waiting periods in respect thereof (the “Required Regulatory Approvals”), (iv) the absence of any law, injunction, order or other judgment, in any of the jurisdictions where there are Required Regulatory Approvals, that enjoins, prevents, prohibits or otherwise makes illegal the consummation of the Merger (a “Restraint”), (v) performance by the Issuer and Purchaser in all material respects of their respective obligations under the Merger Agreement and (vi) subject in most cases to exceptions that do not rise to the level of a Material Adverse Effect or a Parent Material Adverse Effect (each as defined in the Merger Agreement), as applicable, the accuracy of representations and warranties made by the Issuer and Purchaser, respectively.  The obligation of Purchaser to consummate the Merger is also subject to there not having occurred since the date of the Merger Agreement a Material Adverse Effect that is continuing.

The receipt of financing by Purchaser is not a condition to Purchaser’s obligation to complete the Merger.

Representations and Warranties; Covenants

The Merger Agreement contains customary representations and warranties from both the Issuer and Purchaser with respect to each party and its businesses.  The Merger Agreement also contains customary covenants, including covenants by the Issuer, subject to certain exceptions, during the interim period between the execution of the Merger Agreement and the consummation of the Merger, to use commercially reasonable efforts to carry on its business in all material respects in the ordinary course of business consistent with past practice and, to the extent consistent therewith, keep available the services of its present officers and other employees, and preserve substantially intact its relationships with business partners and others having material business dealings with it.

Under the Merger Agreement, each of the Issuer and Purchaser has agreed to use its respective reasonable best efforts to obtain the Required Regulatory Approvals in order to consummate the Merger and the other transactions contemplated by the Merger Agreement as soon as practicable and in any event no later than the Termination Date (as defined below), including an obligation to defend against any litigation challenging the Merger.  However, Purchaser is not obligated to agree to any structural or behavioral remedy required by any governmental authority.

Purchaser has agreed, if requested by the Issuer, to refinance the Issuer’s existing term loan facility on the terms and conditions set forth in the Merger Agreement if the Merger has not closed at least one month prior to the maturity date of such term loan.

Subject to certain exceptions, the Issuer has agreed not to solicit alternative takeover proposals, engage in discussions with third parties regarding alternative takeover proposals or change its recommendation to its stockholders in favor of the Merger.

In the event the Issuer receives an unsolicited takeover proposal from a third party prior to obtaining the Stockholder Approval that (i) did not result from a material breach by the Issuer of its non-solicitation covenants and (ii) the Issuer’s Board of Directors determines in good faith is bona fide and constitutes, or would reasonably be expected to result in, a Superior Proposal (as defined in the Merger Agreement), the Issuer may provide information to, and engage in discussions and negotiations with, the person making the takeover proposal.

Prior to obtaining the Stockholder Approval, the Board of Directors of the Issuer has the right, in connection with (i) the receipt of a Superior Proposal that did not result from a material breach by the Issuer of its non-solicitation covenants or (ii) an Intervening Event (as defined in the Merger Agreement), to change its recommendation in favor of the Merger or, in the case of a Superior Proposal, to terminate the Merger Agreement, in each case, subject to complying with notice requirements and other specified conditions (including giving Purchaser the opportunity to propose changes to the Merger Agreement in response to such Superior Proposal or Intervening Event, as applicable), if the Board of Directors of the Issuer determines in good faith that the failure to take such action would be inconsistent with its fiduciary duties under applicable law.

Termination; Termination Fees

The Merger Agreement may be terminated by the Issuer and Purchaser by mutual agreement.  In addition, either party may terminate the Merger Agreement if, among other things, (i) the Merger has not been consummated on or before May 22, 2024, subject to one three-month automatic extension to August 22, 2024 if any of the Required Regulatory Approval (or a Restraint) remains outstanding and all other conditions to closing are satisfied (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on such date) at the extension date (the “Termination Date”), unless the terminating party’s breach has been a principal cause of or resulted in the failure to complete the Merger by that date, (ii) any Restraint permanently prohibits the Merger and has become final and nonappealable, unless the terminating party’s breach has been a principal cause of or resulted in the Restraint, (iii) the Stockholder Approval has not been obtained at a duly convened meeting of the Issuer’s stockholders held to consider the adoption of the Merger Agreement at which a vote on the Merger Agreement is taken or (iv) the other party is in breach of the Merger Agreement in a manner that would result in a failure of an applicable closing condition, provided the terminating party is not itself in material breach, and such breach cannot be cured or has not been cured within 30 days after notice to the other party of such breach.  In addition, prior to receipt of the Stockholder Approval, each party has additional termination rights specified in the Merger Agreement, including the right for the Issuer to terminate the Merger Agreement to enter into an alternative acquisition agreement providing for a Superior Proposal.

The Merger Agreement provides for the payment of a termination fee upon termination of the Merger Agreement under certain specified circumstances.  The Issuer will be obligated to pay Purchaser a termination fee of $15,380,000 if (i) the Issuer terminates the Merger Agreement to enter into an alternative acquisition agreement providing for a Superior Proposal, (ii) Purchaser terminates the Merger Agreement in the event that the Issuer’s Board of Directors changes its recommendation to its stockholders in favor of the Merger or (iii) the Merger Agreement is terminated in certain circumstances following the receipt of a competing takeover proposal and prior to receipt of the Stockholder Approval, and within 12 months of termination the Issuer enters into a definitive agreement to consummate (or consummates) the transactions proposed by any takeover proposal.  Purchaser will be obligated to pay the Issuer a termination fee of $38,500,000 if (i) the Merger Agreement is terminated by the Issuer or Purchaser upon the occurrence of the Termination Date, and at the time of termination the conditions to closing (other than those relating to the receipt of U.S. antitrust clearance, receipt of Required Regulatory Approvals and the absence of any Restraint) in favor of Purchaser have been satisfied or waived (or in the case of conditions that by their terms are to be satisfied at the closing, are capable of being satisfied if the closing were to occur on such date), so long as the Issuer’s willful breach has not been the primary cause of the failure to obtain U.S. antitrust clearance or the Required Regulatory Approvals or the reason for the Restraint, (ii) the Merger Agreement is terminated because any Restraint has become final and non-appealable and the Issuer’s breach has not been a principal cause of or resulted in the Restraint or (iii) if the Merger Agreement is terminated by the Issuer as a result of a material breach by Purchaser or Sub of their regulatory efforts covenants.

Important Statement Regarding the Merger Agreement

The foregoing description of the Merger Agreement and the transactions contemplated thereby 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 filed as Exhibit 99.1 to this Amendment No. 10 and incorporated by reference into this Item 4.