stockholder of the Company, (d) two demand letters on November 10, 2022, sent on behalf of David Elliot (the Elliot Demand) and Miriam Nathan (the Nathan
Demand), each a purported stockholder of the Company, and (e) one demand letter on November 11, 2022, sent on behalf of Sean Riley (the Riley Demand and, together with the Ciccotelli Demand, the Waterman Demand, the Scott
Demand, the Ayer Demand, the Chase Demand, the Elliot Demand and the Nathan Demand, the Demands).
The Company believes that the allegations
in the Complaints and the Demands lack merit, that no supplemental disclosure is required under applicable laws and that the Schedule 14D-9 disclosed all material information required to be disclosed therein. However, to moot certain of
the disclosure claims in the Complaints and the Demands, to avoid the risk that lawsuits may delay or otherwise adversely affect the Transactions and to minimize the expense of defending such actions, the Company wishes to make voluntarily certain
supplemental disclosures related to the proposed Transactions, all of which are set forth below and should be read in conjunction with the Schedule 14D-9 in its entirety. Nothing in these supplemental disclosures shall be deemed an
admission of the legal necessity or materiality under applicable laws of any of the disclosures set forth herein. For clarity, new text is highlighted with bold, underlined text and deleted text is highlighted with crossed-out
text.
Item 4. The Solicitation or Recommendation.
Item 4 of the Schedule 14D-9 is hereby amended and supplemented as follows:
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By amending and restating the paragraph that overlaps pages 25 and 26 under the heading Background of
the Offer as follows: |
On October 17, 2022, the Company Board held a virtual meeting, with
members of senior management and representatives of Centerview and WilmerHale present. On October 17, 2022, representatives of Centerview reviewed with the Company Board Centerviews financial analysis of the Offer Price and the Merger
Consideration, and rendered to the Company Board an oral opinion, which was subsequently confirmed by delivery of a written opinion dated October 17, 2022 that, as of such date and based upon and subject to various assumptions made, procedures
followed, matters considered, and qualifications and limitations upon the review undertaken in preparing its opinion, the Offer Price and the Merger Consideration to be paid to the holders of Shares (other than as specified in such opinion) pursuant
to the Merger Agreement was fair, from a financial point of view, to such holders. For a detailed discussion of Centerviews opinion, please see below under the caption Opinion of the Financial Advisor to the Company Board.
Centerview then advised the Company Board that there had been no changes to its relationships disclosure with respect to potentially interested parties, previously received by the Company Board on June 15, 2022. Representatives of WilmerHale
then reviewed with the Company Board the changes to the terms of the Merger Agreement and CVR Agreement, which were each shared with the Board, from the prior drafts that had been presented to the Company Board at the October 16, 2022 meeting.
At the conclusion of these discussions, after consideration of the matters presented, the Company Board unanimously (i) determined that the Merger Agreement and the Transactions, including the Offer and the Merger, are advisable, fair to, and
in the best interests of, the Company and the holders of the Shares, (ii) duly authorized and approved the execution and delivery of the Merger Agreement by the Company, the performance by the Company of its covenants and other obligations
under the Merger Agreement, and the consummation of the Transactions, including the Offer and the Merger, upon the terms and subject to the conditions set forth in the Merger Agreement, (iii) resolved that the Merger Agreement and the
Transactions, including the Offer and the Merger, shall be governed by and effected under Section 251(h) and other relevant provisions of the DGCL and (iv) resolved to recommend that the holders of the Shares accept the Offer and tender
their Shares pursuant to the Offer. There were no discussions between Parent and Mr. Simons regarding Mr. Simons potential employment arrangements or compensation at any time prior to such action by the Company
Board.
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By amending and restating the paragraph that overlaps pages 34 and 35 under the heading Opinion of
the Financial Advisor to the Company Board Selected Precedent Transactions Analysis as follows: Based on its analysis and other considerations that Centerview deemed relevant in its professional judgment and experience,
Centerview selected a reference range of Transaction Values of $150 million to |