TIVITY HEALTH, INC. Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
Transaction Structure; Transaction Consideration
On
The Board of Directors of the Company (the "Board") unanimously (i) determined
that the terms of the transactions contemplated by the Merger Agreement,
including the Merger, are fair to, and in the best interests of, the Company and
its stockholders, (ii) determined that it is in the best interest of the Company
and its stockholders to enter into, and adopted and declared advisable, the
Merger Agreement, (iii) approved the execution and delivery by the Company of
the Merger Agreement, the performance by the Company of its covenants and
agreements contained in the Merger Agreement and the consummation of the
transactions contemplated by the Merger Agreement, including the Merger, and
(iv) directed that the approval of the adoption of the Merger Agreement be
submitted to the holders of the Company's common stock, par value
As a result of the Merger, except as otherwise provided in the Merger Agreement,
at the Effective Time, each share of Company Common Stock, issued and
outstanding immediately prior to the Effective Time will be converted into the
right to receive
Pursuant to the Merger Agreement, at the Effective Time:
• each option to purchase Company Common Stock outstanding immediately
prior to the Effective Time (each, an "Company Option"), whether vested
or unvested, will be cancelled and will entitle the holder to receive an
amount in cash (without interest and subject to applicable withholding
taxes) equal to the product of (i) the number of shares of Company Common
Stock subject to such Company Option as of immediately prior to the
Effective Time and (ii) the excess, if any, of the Transaction
Consideration over the exercise price per share of such Company Option.
Any Company Options outstanding with exercise prices equal to or in
excess of the per share Transaction Consideration will be cancelled
without any payment to the holder thereof;
• each market stock unit award of the Company (each, a "Company MSU Award")
outstanding immediately prior to the Effective Time will become vested,
will be cancelled and will entitle the holder thereof to receive an
amount in cash (without interest and subject to applicable withholding
taxes) equal to the product of (i) the number of shares of Company Common
Stock that would have vested pursuant to the terms of such Company MSU
Award based on actual performance through the Effective Time, and
(ii) the Transaction Consideration; and
• each restricted stock unit award of the Company (each, a "Company RSU
Award") outstanding immediately prior to the Effective Time will become
fully vested, will be cancelled and will entitle the holder to receive an
amount in cash (without interest and subject to applicable withholding
taxes) equal to the product of (i) the number of shares of Company Common
Stock subject to the Company RSU Award and (ii) the Transaction
Consideration.
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Conditions to the Merger
The consummation of the Merger is subject to the satisfaction or waiver of various customary conditions set forth in the Merger Agreement, including, but not limited to, (i) the Company's stockholders' approval of the Merger Agreement, (ii) the expiration or termination of any applicable waiting period (or any extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (iii) the absence of any restraint or law preventing or prohibiting the consummation of the Merger, (iv) the accuracy of Parent's, Merger Sub's, and the Company's representations and warranties (subject to certain materiality qualifiers), (v) the Parent's, Merger Sub's and the Company's compliance in all material respects with their respective obligations under the Merger Agreement, and (vi) the absence of any Company Material Adverse Effect (as defined in the Merger Agreement) since the date of the Merger Agreement. The consummation of the Merger is not subject to a financing condition.
No Solicitation of Competing Offers; Fiduciary-Out
Upon the Company's entry into the Merger Agreement, the Company became subject to customary exclusivity and "no shop" restrictions that restrict the Company's ability to solicit proposals from, provide information to, and engage in discussions with, any third parties with respect to the acquisition of, or any similar transaction resulting in the acquisition of, the Company.
Subject to certain customary "fiduciary out" exceptions, the Board is required to recommend that the Company's stockholders vote in favor of the approval of the Merger, the Merger Agreement and the transactions contemplated thereby. However, the Company may, prior to the receipt of the affirmative vote of a majority of the issued and outstanding shares of Company Common Stock ("Company Stockholder Approval"), make a Company Adverse Recommendation Change (as defined in the Merger Agreement) in connection with a Company Superior Proposal or Intervening Event (each as defined the Merger Agreement) if the Company complies with certain notice and other requirements set forth in the Merger Agreement, including the payment of the Termination Fee to Parent or its designee (as defined in the Merger Agreement).
Termination and Termination Fees
Either the Company or Parent may terminate the Merger Agreement in certain
circumstances, including if (i) the Merger shall not have been consummated on or
prior to
The Company may terminate the Merger Agreement, and receive a reverse
termination fee from Parent of approximately
The Company may also terminate the Merger Agreement if, prior to receipt of the
Company Stockholder Approval, the Board shall have authorized the Company to
enter into an acquisition agreement providing for a Company Superior Proposal
and, concurrently with such termination, the Company pays a termination fee of
approximately
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Parent may terminate the Merger Agreement, and receive Company Termination Fee from the Company, if the Board has made a Company Adverse Recommendation Change, which termination right expires upon the Company Stockholder Approval having been obtained.
The Company will also be required to pay Company Termination Fee if (A) a third party publicly discloses a Company Takeover Proposal (as defined in the Merger Agreement) after the date of the Merger Agreement and such Company Takeover Proposal is not withdrawn prior to a termination of the Merger Agreement, and thereafter the Merger Agreement is terminated by (i) either the Company or Parent as a result of the Merger not having been consummated on or prior to the Outside Date, (ii) Parent as a result of a material breach by the Company of any representation or covenant which breach is not cured and would result in a failure of certain conditions to closing to not be satisfied, subject to certain limitations set forth in the Merger Agreement or (iii) Parent or the Company as a result of the Company failing to obtain Company Stockholder Approval; and (B) at any time within the 12 months following such termination, the Company enters into a definitive agreement involving a Company Takeover Proposal that is subsequently consummated (whether within such 12-month period or thereafter).
Financing the Merger
Parent has obtained equity and debt financing commitments for the purpose of
financing the transactions contemplated by the Merger Agreement. Investment
funds managed by
A group of lenders (the "Lenders") have committed to provide Parent with debt
financing in an aggregate principal amount of up to
Other Terms of the Merger Agreement
The Company has made customary representations, warranties and covenants in the Merger Agreement, including, among others, covenants to use its commercially reasonable efforts to conduct its business in the ordinary course during the period between the date of the Merger Agreement and the earlier of the Effective Time and the termination of the Merger Agreement and to not engage in specified types of transactions during this period, subject to certain exceptions.
Summary Disclaimer
The foregoing description of the Merger Agreement does not purport to be and is not complete and is subject to and 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 the terms of which are incorporated herein by reference.
A copy of the Merger Agreement has been included to provide investors and
security holders with information regarding its terms. It is not intended to
provide any other factual information about the Company or Parent or their
respective businesses. The representations, warranties and covenants contained
in the Merger Agreement have been made solely for the purposes of the Merger
Agreement and as of the specific dates therein, were solely for the benefit of
parties to the Merger Agreement, are subject to certain limitations agreed upon
by the contracting parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk between the
parties to the Merger Agreement instead of establishing these matters as facts,
as well as by information contained in certain reports including the Company's
Annual Report on Form 10-K for the fiscal year ended
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applicable to the contracting parties that differ from those applicable to stockholders. Investors and security holders are not third-party beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company's public disclosures.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements, which include all statements that do not relate solely to historical or current facts, such as statements regarding the Company's expectations, intentions or . . .
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit 2.1 Agreement and Plan of Merger, dated as ofApril 5, 2022 , by and amongTivity Health, Inc. ,Titan-Atlas Parent, Inc. andTitan-Atlas Merger Sub, Inc. * Exhibit 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Certain schedules and exhibits have been omitted pursuant to Item 601(a)(5) of
Regulation S-K.
omitted schedule or attachment to the
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