☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
We could not find any results for:
Make sure your spelling is correct or try broadening your search.
Share Name | Share Symbol | Market | Type |
---|---|---|---|
Sharps Compliance Corp | NASDAQ:SMED | NASDAQ | Common Stock |
Price Change | % Change | Share Price | Bid Price | Offer Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|---|---|
0.00 | 0.00% | 8.75 | 5.00 | 8.74 | 0 | 01:00:00 |
☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Subject Company Information |
Identity and Background of Filing Person |
Past Contacts, Transactions, Negotiations, and Agreements |
• | (i) in response to a Superior Proposal, change its recommendation that the Company’s stockholders accept the Offer and tender their Shares pursuant to the Offer, or (ii) terminate the Merger Agreement and concurrently enter into a binding, definitive acquisition agreement providing for a Superior Proposal (as defined below), subject to complying with notice and other specified conditions, including providing Parent with a five (5) business day period (subject to an additional three (3) business day period in the event of any amendment to the financial terms or any other material term of the Superior Proposal) during which Parent may make a proposal to adjust the terms and conditions of the Merger Agreement; or |
• | in response to an Intervening Event (as defined in the Merger Agreement), change its recommendation that the Company’s stockholders accept the Offer and tender their Shares pursuant to the Offer, subject to complying with notice and other specified conditions, including providing Parent with a five (5) business day period during which Parent may make a proposal to adjust the terms and conditions of the Merger Agreement. |
Name | | | Number of Shares | | | Cash Consideration Payable for Shares ($) |
Non-Employee Directors | | | | | ||
Sharon R. Gabrielson | | | 69,747 | | | $610,286 |
Gary R. Enzor | | | 10,353 | | | $90,589 |
Parris H. Holmes | | | 639,996 | | | $5,599,965 |
Susan N. Vogt | | | 39,832 | | | $348,530 |
Executive Officers | | | | | ||
W. Patrick Mulloy | | | 16,997 | | | $148,724 |
Eric T. Bauer | | | — | | | — |
Diana P. Diaz | | | 12,627 | | | $110,486 |
Gregory C. Davis | | | 2,394 | | | $20,948 |
Dennis P. Halligan | | | 2,053 | | | $17,964 |
Name of Executive Officer or Director | | | Number of Shares Subject to Vested Company Stock Options | | | Cash Consideration for Vested Company Stock Options ($) | | | Number of Shares Subject to Unvested Company Stock Options | | | Cash Consideration for Unvested Company Stock Options ($) | | | Total Cash Consideration for Company Stock Options in the Merger ($)(1)(2) |
W. Patrick Mulloy | | | 1,250 | | | $3,763 | | | 18,750 | | | $56,437 | | | $60,200 |
Eric T. Bauer | | | — | | | — | | | 200,000 | | | $504,000 | | | $504,000 |
Diana P. Diaz | | | 31,250 | | | $148,438 | | | 76,200 | | | $123,750 | | | $272,188 |
Gregory C. Davis | | | 11,250 | | | $54,063 | | | 31,850 | | | $34,312 | | | $88,375 |
Dennis P. Halligan | | | 21,268 | | | $109,061 | | | 31,850 | | | $34,313 | | | $143,374 |
(1) | For the treatment of Company Stock Options held by the Company’s executive officers under their employment or award agreements, please see the descriptions below under the heading “Employment Agreements and Arrangements with Executive Officers” and “Item 8. Additional Information–Golden Parachute Compensation.” |
(2) | The amounts in this column represent the total consideration payable in respect of the outstanding Company Stock Options, whether vested or unvested or exercisable, held by each executive officer of the Company. |
Name of Executive Officer or Non-Employee Director | | | Number of Unvested Company Restricted Stock Awards(1) | | | Cash Consideration for Unvested Company Restricted Stock Awards ($) | | | Total Cash Consideration for Company Restricted Stock Awards in the Merger ($) |
Non-Employee Directors | | | | | | | |||
Sharon R. Gabrielson | | | 4,849 | | | $42,429 | | | $42,429 |
Gary R. Enzor | | | 3,451 | | | $30,196 | | | $30,196 |
Parris H. Holmes | | | 3,233 | | | $28,289 | | | $28,289 |
Susan N. Vogt | | | 3,233 | | | $28,289 | | | $28,289 |
| | | | | | ||||
Executive Officers | | | | | | | |||
W. Patrick Mulloy | | | 21,983 | | | $192,351 | | | $192,351 |
Eric T. Bauer | | | 5,740 | | | $50,225 | | | $50,225 |
Diana P. Diaz | | | 12,156 | | | $106,365 | | | $106,365 |
Gregory C. Davis | | | 7,184 | | | $62,860 | | | $62,860 |
Dennis P. Halligan | | | 6,159 | | | $53,891 | | | $53,891 |
(1) | For the treatment of Company Restricted Stock Awards under the executive officers’ employment or award agreements, please see the descriptions below under the heading “Employment Agreements and Arrangements with Executive Officers” and “Item 8. Additional Information–Golden Parachute Compensation.” |
Name of Executive Officer | | | Number of Unvested Company Restricted Stock Awards(1) | | | Cash Consideration for Unvested Company Restricted Stock Awards |
Eric T. Bauer | | | 11,131 | | | $97,396 |
Diana P. Diaz | | | 31,429 | | | $275,004 |
Gregory C. Davis | | | 16,714 | | | $146,248 |
Dennis P. Halligan | | | 14,331 | | | $125,396 |
Other Employees | | | 26,112 | | | $228,480 |
Total | | | 99,717 | | | $872,524 |
(1) | Company Restricted Stock Awards to be granted if 100% of the potential awards under the 2022 Executive Compensation and Incentive Plan are granted at $8.75 per Share. |
The Solicitation or Recommendation |
• | Attractive Price. The Company Board’s belief that the Offer Price of $8.75 per Share represents full and fair value for the Shares, taking into account the Company Board’s familiarity with the Company’s current and historical financial condition, results of operations, business, competitive position, and prospects, as well as the Company’s future business plans (strategic and short- and long-term) and potential long-term value, including its future prospects and risks (including business plan execution risks) if it were to remain an independent company. |
• | Immediate Liquidity. The fact that the Offer Price and Merger Consideration consists solely of cash, which provides certainty of value and liquidity to the Company’s stockholders and does not in itself expose them to any future risks or uncertainties related to the business as a standalone enterprise or the financial markets generally. |
• | Substantial Premium. The relationship of the Offer Price to the trading price of the Shares, including the fact that the Offer Price represents a premium of approximately 207% over the $2.85 per Share closing sale price as of July 11, 2022, the last trading day before public announcement of the Merger Agreement. |
• | Fairness Opinion. The oral opinion of Raymond James delivered to the Company Board on July 11, 2022, which was subsequently confirmed in writing on July 11, 2022, that as of the date delivered, and based upon and subject to the various qualifications and assumptions set forth therein, the $8.75 in cash per Share to be received by holders of Shares pursuant to the terms of the Merger Agreement was fair, from a financial point of view, to such holders of Shares, as more fully described in the section entitled “Financial Analyses and Opinion–Opinion of Raymond James & Associates, Inc.” of this Schedule 14D-9. |
• | Appraisal Rights. That stockholders who do not believe that the Offer Price or Merger Consideration represents fair consideration for their shares will have an opportunity to pursue appraisal rights under Section 262 of the DGCL. |
• | The Company’s current and historical business, financial condition, results of operations, competitive position, strategic options, and prospects, as well as the Company’s short- and long-term business plan and prospects if it were to remain an independent public company, the risks and challenges associated with remaining an independent public company, and the potential impact of those factors on the future trading price of the Company’s common stock, including risks related to the following: |
– | The general business environment for full-service national providers of comprehensive waste management solutions including medical, pharmaceutical, and hazardous waste. |
– | The Company’s ability to attract additional customers and future business opportunities. |
– | Changes in the medical, pharmaceutical, and hazardous waste management industry and related regulations. |
– | The U.S. and global economy and general stock market conditions and volatility. |
– | The Company Board’s belief, after a thorough review of possible strategic alternatives reasonably available to the Company (including continuing to operate on a stand-alone basis), in each case taking |
– | The fact that, through negotiations, the Company was able to obtain the Offer Price of $8.75 per Share despite a declining stock price subsequent to the initial communications with representatives of Aurora, and the Company Board’s belief that, based on negotiations and discussions with Aurora and an evaluation of the potential field of other potential acquirors, the Offer Price represented the highest price per Share that Parent or another potential acquiror would likely be willing to pay and represented the best value reasonably available to stockholders. |
– | The lack of inbound inquiries in respect of the potential acquisition of all of the issued and outstanding Shares. |
– | The Company Board’s belief that actively soliciting other potential acquirors prior to the signing of the Merger Agreement would be unlikely to result in an improved price per Share or any timely competing offer, and that engaging in such communications would have likely resulted in significant delays or other significant risks to the opportunity presented by Aurora. |
– | The timing of the Transactions and the risk that if the Company did not accept Parent’s offer, it may not have another opportunity to do so or a comparable opportunity. |
– | The other risks and uncertainties identified in the Company’s filings with the SEC, including its Annual Report on Form 10-K for the fiscal year ended June 30, 2021 and in the Company’s Quarterly Reports on Form 10-Q, Current Reports on Form 8-K, and other filings with the SEC. |
– | The Company Board’s belief, after consideration of the factors described above, that the completion of the Offer and the consummation of the Merger represent the Company’s best reasonably available alternative for maximizing stockholder value. |
• | The anticipated timing of the consummation of the Transactions, including the structure of the transaction as a cash tender offer for all outstanding Shares, with the anticipated result of allowing stockholders to receive the Offer Price in a relatively short time frame, followed by the Merger under Section 251(h) of the DGCL in which stockholders who do not validly exercise appraisal rights will receive the same consideration received by those stockholders who tender their Shares in the Offer. The Company Board considered that the potential for closing in a relatively short time frame could also reduce the amount of time during which the Company’s business would be subject to the potential uncertainty of closing and related distraction and disruption. |
• | The Company Board’s belief, following consultation with legal counsel, that the Transactions presented a limited risk of not achieving regulatory clearance or having a delay in consummation of the Transactions due to regulatory review. |
• | Parent and Purchaser have obtained equity financing commitments to fund the Transactions and the Company is a third party beneficiary of the Equity Commitment Letter for the limited purpose of obtaining specific performance of Parent’s right to cause the equity financing to be funded, subject to certain conditions. |
• | The business reputation and capabilities of Aurora and, by extension, Parent and Purchaser. |
• | The fact that Parent and Purchaser’s obligation to complete the Transactions is not conditioned on the Parent or Purchaser obtaining debt financing. |
• | The Company Board’s expectation that, based on the limited number and nature of the conditions to funding set forth in the Equity Commitment Letter, such conditions will be timely met and the financing will be provided in a timely manner. |
• | The fact that (1) pursuant to the terms of the Merger Agreement, if Purchaser fails to consummate the Offer under certain circumstances, Parent is obligated to pay the Company a termination fee equal to |
• | The Company Board considered all of the terms and conditions of the Merger Agreement, including the representations, warranties, covenants, and agreements of the parties, the conditions to closing, the form of the Offer Price and Merger Consideration, and the structure of the termination rights and termination fees, including: |
– | That the terms of the Merger Agreement were the products of arms’-length negotiations between two sophisticated parties and their respective legal advisors and the Company’s financial advisor. |
– | That the “fiduciary out” provisions of the Merger Agreement, subject to the terms and conditions thereof, permit the Company to furnish information to and participate in discussions and negotiations with third parties that make unsolicited acquisition proposals and, upon payment of a $6,995,000 termination fee, and subject to certain notice requirements and “matching” rights, terminate the Merger Agreement in order to enter into an agreement with respect to a superior proposal. |
– | The Company Board’s belief that the $6,995,000 termination fee payable by the Company under certain circumstances set forth in the Merger Agreement (equal to approximately 4% of the equity value of the Transactions) is reasonable in light of the overall terms of the Merger Agreement and the benefits of the Offer and the Merger and would not preclude or meaningfully deter another party from making a competing proposal. |
– | That Purchaser’s obligations to purchase Shares in the Offer and to close the Merger are subject to a limited number of conditions, and the Company Board’s belief, in consultation with senior management of the Company and legal and financial advisors, that the Transactions are reasonably likely to be consummated. |
– | That Purchaser is obligated to extend the Offer for successive extension periods if any condition to the Offer has not been satisfied or waived (other than the Minimum Condition, which may not be waived by Purchaser), and to extend the Offer for an additional period of up to ten business days if at any scheduled expiration of the Offer the only offer condition not satisfied is the Minimum Condition. |
• | No Stockholder Participation in Future Growth or Earnings. The fact that the Company’s public stockholders will cease to participate in the Company’s future earnings growth or benefit from any future increase in its value following the Merger, including appreciation resulting from operational improvements, strategic initiatives, potential synergies with Parent or its Affiliates resulting from the Transactions, or otherwise. |
• | Termination Fee. The possibility that the termination fee of $6,995,000 payable by the Company to Parent under certain circumstances set forth in the Merger Agreement may become payable or deter third parties that might be interested in exploring an acquisition of the Company. |
• | Expense Reimbursement. The possibility that, in the event the Merger Agreement is terminated, under certain circumstances as set forth in the Merger Agreement, the Company will be required to reimburse Parent and its affiliates for their reasonable and documented out-of-pocket fees and expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby, up to a maximum amount of $5,000,000. |
• | Risk Associated with Failure to Complete the Offer and Consummate the Merger. The possibility that the Transactions might not be consummated, and the risks and costs to the Company in such event, including the diversion of management and employee attention and the potential disruptive effect on business and customer or supplier relationships, stock price, and the ability to attract and retain key management personnel and employees. |
• | Monetary and Opportunity Costs. The significant costs involved in connection with completing the Merger, the substantial management time and effort required to complete the Merger, and the related disruption to the Company’s operations. |
• | Effects of Transaction Announcement. The possible disruption to the Company’s business and the possible effect on the ability of the Company to attract key personnel that may result from the announcement of the Offer and the Merger and the resulting distraction of the attention of the Company’s management, as well as the likelihood of litigation in connection with the Merger. |
• | Closing Conditions. The fact that completion of the Offer and the Merger is subject to the satisfaction of certain closing conditions that are not within the Company’s control, including receipt of the necessary regulatory clearances and approvals and that no material adverse effect on the Company has occurred. |
• | Taxable Consideration. Any gains from the consideration to be received by the U.S. stockholders in the Offer and the Merger generally will be taxable to the U.S. stockholders for U.S. federal income tax purposes. Non-U.S. stockholders should consult their own tax advisors regarding the U.S. and non-U.S. tax consequences to them of the Offer and the Merger. |
• | Interim Restrictions on Business Pending the Completion of the Offer. The fact that the Merger Agreement contains restrictions on the conduct of the Company’s business prior to the completion of the Merger, including generally requiring the Company to carry on its business in the ordinary course consistent with past custom and practice, subject to specified limitations, and that the Company will generally not undertake various actions related to the conduct of its business except with the prior written consent of Parent, which may delay or prevent the Company from responding to changing market and business conditions or from otherwise taking actions that would be advisable if the Company were to remain an independent enterprise. |
• | Transaction Expenses. The substantial transaction expenses to be incurred and the negative impact of such expenses on the Company’s cash reserves and operating results should the Transactions not be completed. |
• | Interests of Insiders. The interests that certain directors and executive officers of the Company may have with respect to the Transactions that may be different from, or in addition to, their interests as stockholders of the Company or the interests of the Company’s other stockholders generally. |
• | Remedies. The fact that if the Merger does not occur, the maximum aggregate liability for monetary damages is limited to the Parent Termination Fee of $7,869,400, certain related collection costs, and reimbursement and indemnity with respect to certain debt financing cooperation that may be provided by the Company prior to the Merger, and such amounts may not be sufficient to compensate the Company for losses suffered as a result of a failure of the Merger to occur. |
• | reviewed a draft dated July 11, 2022 of the Merger Agreement; |
• | reviewed certain publicly available business and financial information concerning Sharps and the industry in which it operates; |
• | compared the proposed financial terms of the Offer and the Merger with the publicly available financial terms of certain transactions involving companies Raymond James deemed relevant; |
• | compared the financial and operating performance of Sharps with publicly available information concerning certain other companies Raymond James deemed relevant and reviewed the current and historical market prices of the Shares and certain publicly traded securities of such other companies; |
• | reviewed certain internal financial analyses and financial projections prepared by the management of Sharps relating to its business; |
• | received a certificate addressed to Raymond James from a member of senior management of Sharps regarding, among other things, the accuracy of the information, data and other materials (financial or otherwise) provided to, or discussed with, Raymond James by or on behalf of Sharps; and |
• | performed such other financial studies and analyses and considered such other information as Raymond James deemed appropriate for the purposes of its opinion. |
• | Stericycle, Inc. |
• | Clean Harbors, Inc. |
• | Harsco Corporation |
• | Heritage-Crystal Clean, Inc. |
| | Implied Value Per Share (rounded to the nearest $0.25) | |
LTM March-2022 EV/EBITDA | | | $2.23 – 3.61 |
2023E EV/EBITDA | | | $3.39 – 5.14 |
LTM March-2022 EV/Revenue | | | $4.84 – 8.41 |
2023E EV/Revenue | | | $4.91 – 9.02 |
Close Date | | | Acquiror | | | Target |
May 2022 | | | Republic Services, Inc. | | | US Ecology, Inc. |
January 2022 | | | Iron Mountain Incorporated | | | ITRenew, Inc. |
November 2021 | | | EQT Partners AB | | | Covanta Holding Corporation |
October 2020 | | | Waste Management, Inc. | | | Advanced Disposal Services, Inc. |
November 2019 | | | US Ecology, Inc. | | | NRC Group Holding Corp. |
March 2017 | | | Cintas Corporation | | | G&K Services, Inc. |
May 2016 | | | Iron Mountain Incorporated | | | Recall Holdings Limited |
October 2015 | | | Stericycle, Inc | | | Shred-it Internal Inc |
| | Implied Value Per Share (rounded to the nearest $0.25) | |
EV/TTM EBITDA | | | $3.19 – 4.00 |
EV/NTM EBITDA | | | $4.02 – 5.55 |
EV/TTM Revenue | | | $8.60 – 12.36 |
EV/NTM Revenue | | | $8.52 – 12.25 |
| | Implied Value Per Share (rounded to the nearest $0.25) | |
Management Forecasts | | | $6.10 – 9.46 |
(Dollars in Thousands) | | | FYE 2023E | | | FYE 2024E | | | FYE 2025E | | | FYE 2026E | | | FYE 2027E |
Revenue | | | $73,376 | | | $80,511 | | | $88,361 | | | $98,258 | | | $103,958 |
EBITDA(1) | | | $6,877 | | | $9,681 | | | $12,798 | | | $17,506 | | | $19,529 |
Selected Cash Flow Items | | | | | | | | | | | |||||
Depreciation & Amortization | | | $923 | | | $951 | | | $979 | | | $1,008 | | | $1,039 |
Capital Expenditures | | | $1,500 | | | $1,500 | | | $1,500 | | | $1,500 | | | $1,500 |
(Increase) Decrease in Working Capital | | | $(1,265) | | | $(1,083) | | | $(1,192) | | | $(1,502) | | | $(865) |
Unlevered Free Cash Flow(2) | | | $3,051 | | | $5,358 | | | $7,612 | | | $10,868 | | | $13,047 |
(1) | EBITDA is defined as net income before interest, taxes, depreciation and amortization |
(2) | Unlevered free cash flow is calculated as EBITDA less depreciation and amortization, tax effected assuming a tax rate of 24.51%, plus depreciation and amortization, less capital expenditure and plus (less) decreases (increases) in working capital. Although unlevered free cash flow was not separately listed as a discrete line item in the Management Forecasts or provided to Parent or Purchaser, it was calculated by Raymond James using inputs provided in the Management Forecasts and used by Raymond James in connection with the rendering of its opinion to the Company Board and in performing its related financial analyses, as described under the heading “Fairness Analyses and Opinion–Opinion of Raymond James & Associates, Inc.,” and is being provided in this Schedule 14D-9 for informational purposes. |
Persons/Assets Retained, Employed, Compensated or Used |
Interest in Securities of the Subject Company |
Date of Transaction | | | Identity of Person | | | Number of Securities | | | Price per Share (if applicable) | | | Nature of Transaction |
6/30/2022 | | | Sharon R. Gabrielson | | | 4,849 | | | — | | | Quarterly vesting |
6/30/2022 | | | Gary R. Enzor | | | 3,451 | | | — | | | Quarterly vesting |
6/30/2022 | | | Parris H. Holmes | | | 3,233 | | | — | | | Quarterly vesting |
6/30/2022 | | | Susan N. Vogt | | | 3,233 | | | — | | | Quarterly vesting |
6/30/2022 | | | W. Patrick Malloy | | | 4,783 | | | — | | | Quarterly vesting |
7/1/2022 | | | Diana P. Diaz | | | 4,052 | | | — | | | Annual vesting |
7/1/2022 | | | Gregory C. Davis | | | 2,394 | | | — | | | Annual vesting |
7/1/2022 | | | Dennis P. Halligan | | | 2,052 | | | — | | | Annual vesting |
Purposes of the Transaction and Plans or Proposals |
• | a tender offer or other acquisition of the Company’s securities by the Company, any subsidiary of the Company, or any other person; |
• | any extraordinary transaction, such as a merger, reorganization, or liquidation, involving the Company or any subsidiary of Sharps; |
• | any purchase, sale, or transfer of a material amount of assets of the Company or any subsidiary of Sharps; or |
• | any material change in the present dividend rate or policy, or indebtedness, or capitalization of Sharps. |
Additional Information |
• | the transaction in which the stockholder became an interested stockholder or the business combination was approved by the board of directors of the corporation before the other party to the business combination became an interested stockholder; |
• | upon completion of the transaction that made it an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the commencement of the transaction (excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) the voting stock owned by directors who are also officers or held in employee benefit plans in which the employees do not have a confidential right to tender or vote stock held by the plan); or |
• | the business combination was approved by the board of directors of the corporation and ratified by 66 2∕3% of the outstanding voting stock which the interested stockholder did not own. |
• | within the later of the consummation of the Offer, which shall occur on the date on which acceptance and payment for Shares occurs, and 20 days after the mailing of this Schedule 14D-9, deliver to the Company at the address written below a written demand for appraisal of Shares held, which demand must reasonably inform the Company of the identity of the stockholder and that the stockholder is demanding appraisal; |
• | not tender such Shares in the Offer; and |
• | continuously hold of record such Shares from the date on which the written demand for appraisal is made through the Effective Time of the Merger. All written demands for appraisal should be addressed to: |
Name | | | Cash ($)(2) | | | Equity ($)(3) | | | Perquisites/ Benefits ($)(4) | | | Other ($) | | | Total ($) |
W. Patrick Mulloy | | | $900,000 | | | $252,551 | | | | | | | $1,152,551 | ||
Eric T. Bauer | | | $170,651 | | | $651,621 | | | | | | | $822,272 | ||
Diana P. Diaz | | | $137,500 | | | $658,307 | | | | | | | $795,807 | ||
Gregory C. Davis | | | | | $297,483 | | | | | | | $297,483 | |||
Dennis P. Halligan | | | | | $322,661 | | | | | | | $322,661 | |||
David P. Tusa(1) | | | | | $94,281 | | | $28,955 | | | | | $123,236 |
(1) | David P. Tusa is the Company’s former Chief Executive Officer and President. Mr. Tusa resigned on April 1, 2022. |
(2) | The amount reported in this column for Mr. Mulloy represents (a) cash severance in the amount of $600,000, which is payable to him in substantially equal installments over the 18-month period following the end of his six-month consulting term (or, in the event of Mr. Mulloy’s death or disability, over the 18-month period following his termination date), (b) $200,000 payable to him for post-termination transition consulting services for six months following his termination (except in the case of his termination due to his death or disability), and (c) $100,000 in respect of the release of his obligation to repay to the Company the signing bonus paid to him on April 1, 2022. Except |
(3) | The amounts reported in this column include the aggregate dollar value of the cash payments that each such person will receive in exchange for cancellation of his or her Company Stock Options and Company Restricted Stock Awards as of July 22, 2022, as described above under “Item 3. Past Contacts, Transactions, Negotiations, and Agreements–Arrangements between the Company and its Current Executive Officers, Directors, and Affiliates–Effect of the Merger on Company Stock Options and Company Restricted Stock Awards.” These amounts are “single-trigger” payments. The amounts in this column also include (i) Company Restricted Stock Awards to be granted during the first quarter of the 2023 fiscal year if 100% of the potential awards under the 2022 Executive Compensation and Incentive Plan are granted at $8.75 per Share and (ii) Company Stock Options to be granted to Ms. Diaz in accordance with her employment agreement on August 24, 2022. For more information, see the table below. |
Name | | | Value of Company Stock Options ($) | | | Value of Company Restricted Stock Awards($) |
W. Patrick Mulloy | | | $60,200 | | | $192,351 |
Eric T. Bauer | | | $504,000 | | | $147,621 |
Diana P. Diaz | | | $276,938 | | | $381,369 |
Gregory C. Davis | | | $88,375 | | | $209,108 |
Dennis P. Halligan | | | $143,374 | | | $179,287 |
David P. Tusa | | | $94,281 | | | — |
(4) | The amounts reported in this column represent, in the case of Mr. Tusa, continuation of medical and dental insurance under COBRA and continued lease and insurance payments on a Company automobile currently allotted to Mr. Tusa with such amounts payable through September 30, 2023. |
Exhibits |
Exhibit No. | | | Description |
(a)(1)(A) | | | Offer to Purchase, dated July 25, 2022 (incorporated by reference to Exhibit (a)(1)(A) of the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(a)(1)(B) | | | Letter of Transmittal (incorporated by reference to Exhibit (a)(1)(B) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(a)(1)(C) | | | Notice of Guaranteed Delivery (incorporated by reference to Exhibit (a)(1)(C) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(a)(1)(D) | | | Letter to Brokers, Dealers, Commercial Banks, Trust Companies, and other Nominees (incorporated by reference to Exhibit (a)(1)(D) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(a)(1)(E) | | | Letter to Clients for use by Brokers, Dealers, Commercial Banks, Trust Companies, and other Nominees (incorporated by reference to Exhibit (a)(1)(E) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(a)(1)(F) | | | Summary Advertisement published as published in the Wall Street Journal on July 25, 2022 (incorporated by reference to Exhibit (a)(1)(F) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
| | Joint Press Release, dated July 12, 2022, issued by Aurora Capital Partners and Sharps Compliance Corp. (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Sharps Compliance Corp. with the SEC on July 12, 2022) | |
| | ||
(a)(5)(B) | | | Press Release issued by Aurora Capital Partners, dated July 25, 2022 (incorporated by reference to Exhibit (a)(5)(B) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
| | Email to the Employees of Sharps Compliance Corp. from the Chief Executive Officer, W. Patrick Mulloy, first used or made available on July 12, 2022 (incorporated by reference to Exhibit 99.2 to the Schedule 14D-9C filed by the Sharps Compliance Corp. on July 12, 2022) | |
| | ||
| | Opinion of Raymond James, dated July 11, 2022 (incorporated by reference to Annex I to this Schedule 14D-9) | |
| | ||
| | Agreement and Plan of Merger, dated as of July 12, 2022, by and among Raven Buyer, Inc., Raven Houston Merger Sub, Inc., and Sharps Compliance Corp. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on July 13, 2022) | |
| | ||
| | Amendment No. 1 to Agreement and Plan of Merger by and among Raven Buyer, Inc., Raven Houston Merger Sub, Inc., and Sharps Compliance Corp., dated as of July 22, 2022 | |
| | ||
(e)(3) | | | Equity Commitment Letter, dated as of July 12, 2022, delivered by Aurora Equity Partners VI, L.P. , Aurora Equity Partners VI-A, L.P., and Aurora Associates VI L.P. in favor of Raven Buyer, Inc. (incorporated by reference to Exhibit (d)(6) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| |
Exhibit No. | | | Description |
(e)(4) | | | Limited Guaranty, dated as of July 12, 2022, delivered by Aurora Equity Partners VI L.P., Aurora Equity Partners VI-A L.P., and Aurora Associates VI L.P. in favor of Sharps Compliance Corp. (incorporated by reference to Exhibit (d)(7) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
| | Tender and Support Agreement, dated as of July 12, 2022, by and among Raven Buyer, Inc., Raven Houston Merger Sub, Inc., and certain directors and executive officers of Sharps Compliance Corp. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on July 13, 2022) | |
| | ||
(e)(6) | | | Confidentiality Agreement, dated as of May 9, 2022, by and between Sharps Compliance Corp. and Raven Parent, Inc. (incorporated by reference to Exhibit (d)(2) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(e)(7) | | | Clean Team Confidentiality Agreement, dated as of June 27, 2022, by and between Sharps Compliance Corp. and Raven Parent, Inc. (incorporated by reference to Exhibit (d)(8) to the Schedule TO filed by Raven Houston Merger Sub, Inc. with the SEC on July 25, 2022) |
| | ||
(e)(8) | | | Exclusivity Agreement, dated as of June 18, 2022, by and between Aurora Capital Partners Management VI L.P. and Sharps Compliance Corp, as amended by the Amendment to the Original Exclusivity Agreement, dated July 3, 2022 (incorporated by reference to Exhibit (d)(3) of the Schedule TO filed by Raven Houston Merger Sub., Inc. with the SEC on July 25, 2022) |
| | ||
| | Sharps Compliance Corp.’s Definitive Proxy Statement for its 2022 Annual Meeting filed on October 6, 2021 (incorporated by reference to the Sharps Compliance Corp.’s Definitive Proxy Statement on Schedule 14A, filed on October 6, 2021) | |
| | ||
(e)(10) | | | Amended and Restated Certificate of Incorporation of Sharps Compliance Corp. (incorporated by reference from Exhibit 3.5 to the Registrant’s Transition Report on Form 10KSB40 filed by Sharps Compliance Corp. with the SEC on September 29, 1998) |
| | ||
| | Certificate of Amendment to Amended and Restated Certificate of Incorporation (incorporated by reference from Exhibit 3.3 to Annual Report on Form 10-K filed by Sharps Compliance Corp. with the SEC on August 28, 2019) | |
| | ||
| | Amended and Restated Bylaws of Sharps Compliance Corp dated May 23, 1994 (incorporated by reference to Exhibit 3.2 to Current Report on Form 8-K, filed by Sharps Compliance Corp. with the SEC November 19, 2010) | |
| | ||
| | Amendment to Amended and Restated Bylaws of Sharps Compliance Corp., effective July 11, 2022 (incorporated by reference to Exhibit 3.1 of the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on July 13, 2022) | |
| | ||
| | Executive Employment Agreement Amendment by and between Sharps Compliance Corp. and David P. Tusa dated June 14, 2010 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on June 14, 2010) | |
| | ||
| | Executive Employment Agreement Amendment between Sharps Compliance Corp. and David P. Tusa dated March 6, 2012 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on March 7, 2012) | |
| | ||
| | Executive Employment Agreement Amendment by and between Sharps Compliance Corp. and David P. Tusa dated September 10, 2015 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on September 11, 2015) |
Exhibit No. | | | Description |
| | Executive Employment Agreement Amendment by and between Sharps Compliance Corp. and David P. Tusa dated April 8, 2021 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on April 8, 2021) | |
| | Separation and Release Agreement by and between Sharps Compliance Corp. and David P. Tusa, dated as of April 1, 2022 (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on April 6, 2022) | |
| | ||
| | Employment Agreement by and between Sharps Compliance Corp. and Diana P. Diaz dated June 14, 2010 (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on June 14, 2010) | |
| | ||
| | Executive Employment Agreement Amendment between Sharps Compliance Corp. and Diana P. Diaz dated March 6, 2012 (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K, filed by Sharps Compliance Corp. with the SEC on March 7, 2012) | |
| | ||
| | Executive Employment Agreement Amendment by and between Sharps Compliance Corp. and Diana P. Diaz dated September 10, 2015 (incorporated by reference to Exhibit 10.2 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on September 11, 2015) | |
| | ||
| | Agreement Amendment by and between Sharps Compliance Corp. and Diana P. Diaz dated April 8, 2021 (incorporated by reference to Exhibit 10.2 to Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on April 8, 2021) | |
| | ||
| | Agreement Amendment by and between Sharps Compliance Corp. and Diana P. Diaz dated February 25, 2022 (incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on March 1, 2022) | |
| | ||
| | Employment Agreement by and between Sharps Compliance, Inc. and Gregory C. Davis dated May 18, 2011 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on May 24, 2011) | |
| | ||
(e)(25) | | | Executive Employment Agreement between Sharps Compliance Corp. and W. Patrick Mulloy, dated April 1, 2022 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on April 6, 2022) |
| | ||
| | Amendment to Employment Agreement between Sharps Compliance Corp. and W. Patrick Mulloy, dated July 22, 2022 | |
| | ||
| | Executive Employment Agreement between Sharps Compliance Corp. and Eric T. Bauer dated February 24, 2022 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by Sharps Compliance Corp. with the SEC on February 28, 2022) | |
| | ||
| | Sharps Compliance Corp. 2010 Stock Plan Amendment dated November 22, 2010, as amended on September 11, 2014 (incorporated by reference to Annex A of the Definitive Proxy Statement on Schedule 14A filed by Sharps Compliance Corp. with the SEC on October 1, 2014) | |
| | ||
(e)(29) | | | Form of Restricted Stock Award Agreement (Directors) (incorporated by reference to Exhibit 10.1 to the Current Report on Form 10-K filed by Sharps Compliance Corp. with the SEC on August 25, 2021) |
| | ||
| | Form of Restricted Stock Award Agreement (Employees) | |
| | ||
| | Form of Stock Option Agreement |
* | Filed herewith |
Date: July 25, 2022 | | | SHARPS COMPLIANCE CORP. | |||
| | | | |||
| | By: | | | /s/ W. Patrick Mulloy | |
| | Name: | | | W. Patrick Mulloy | |
| | Title: | | | Chief Executive Officer and President |
1. | reviewed the financial terms and conditions as stated in the draft of the Agreement and Plan of Merger, by and between the Company, Parent, and Merger Sub, dated as of July 11, 2022 (the “Agreement”); |
2. | reviewed certain information related to the historical condition and prospects of the Company, as made available to Raymond James by or on behalf of the Company, including, but not limited to, financial projections prepared by the management of the Company (the “Projections”); |
3. | reviewed the Company’s audited financial statements for years ended June 30, 2021, June 30, 2020, June 30, 2019, and June 30, 2018 and unaudited financial statements for the three month periods ended March 31, 2022, December 31, 2021 and September 30, 2021; |
4. | reviewed the Company’s recent public filings and certain other publicly available information regarding the Company; |
5. | reviewed the financial and operating performance of the Company and those of other selected public companies that we deemed to be relevant; |
6. | considered certain publicly available financial terms of certain transactions we deemed to be relevant; |
7. | reviewed the current and historical market prices and trading volume for the Shares, and the current market prices of the publicly traded securities of certain other companies that we deemed to be relevant; |
8. | conducted such other financial studies, analyses and inquiries and considered such other information and factors as we deemed appropriate; |
9. | received a certificate addressed to Raymond James from a member of senior management of the Company regarding, among other things, the accuracy of the information, data and other materials (financial or otherwise) provided to, or discussed with, Raymond James by or on behalf of the Company; and |
10. | discussed with members of the senior management of the Company certain information relating to the aforementioned and any other matters which we have deemed relevant to our inquiry including, but not limited to, the past and current business operations of the Company and the financial condition and future prospects and operations of the Company. |
(a) | Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to § 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholder’s shares of stock under the circumstances described in subsections (b) and (c) of this section. As used in this section, the word “stockholder” means a holder of record of stock in a corporation; the words “stock” and “share” mean and include what is ordinarily meant by those words; and the words “depository receipt” mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository. |
(b) | Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title) § 251(h) of this title), § 252, § 254, § 255, § 256, § 257, §258, § 263, or § 264 of this title: |
(1) | Provided, however, that no appraisal rights under this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of stockholders to act upon the agreement of merger or consolidation (or, in the case of a merger pursuant § 251(h), as of immediately prior to the execution of the agreement of merger), were either: (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of this title. |
(2) | Notwithstanding paragraph (b)(1) of this section, appraisal rights under this section shall be available for the shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263 and 264 of this title to accept for such stock anything except: |
a. | Shares of stock of the corporation surviving or resulting from such merger or consolidation, or depository receipts in respect thereof; |
b. | Shares of stock of any other corporation, or depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of record by more than 2,000 holders; |
c. | Cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a. and b. of this section; or |
d. | Any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a., b. and c. of this section. |
(3) | In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 253 or § 267 of this title is not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation. |
(4) | Repealed by 82 Laws 2020, ch. 256, § 15. |
(c) | Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the shares of any class or series of its stock as a result of an amendment to its certificate |
(d) | Appraisal rights shall be perfected as follows: |
(1) | If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in accordance with §255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares of the constituent corporations, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the appraisal of such stockholder’s shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholder’s shares; provided that a demand may be delivered to the corporation by electronic transmission if directed to an information processing system (if) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholder’s shares. A proxy or vote against the merger or consolidation shall not constitute such a demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or |
(2) | If the merger or consolidation was approved pursuant to § 228, § 251(h), §253, or § 267 of this title, then either a constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of giving such notice or, in the case of a merger approved pursuant to § 251(h) of this title, within the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days after the date of giving such notice, demand in writing from the surviving or resulting corporation the appraisal of such holder’s shares; provided that a demand may be delivered to the corporation by electronic transmission if directed to an information processing system (if any) expressly designated for that purpose in such notice. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such holder’s shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the case of a merger approved pursuant to § 251(h) of this title, later than the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days following the sending of the first notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holder’s shares in accordance with this subsection. |
(e) | Within 120 days after the effective date of the merger or consolidation, the surviving or resulting corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section hereof, upon request given in writing (or by electronic transmission directed to an information processing system (if any) expressly designated for that purpose in the notice of appraisal), shall be entitled to receive from the corporation surviving the merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation (or, in the case of a merger approved pursuant to § 251(h) of this title, the aggregate number of shares (other than any excluded stock (as defined in § 251(h)(6)d. of this title)) that were the subject of, and were not tendered into, and accepted for purchase or exchange in, the offer referred to in § 251(h)(2)), and, in either case, and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. Such statement shall be given to the stockholder within 10 days after such stockholder’s request for such a statement is received by the surviving or resulting corporation or within 10 days after expiration of the period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file a petition or request from the corporation the statement described in this subsection. |
(f) | Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington, Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation. |
(g) | At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately before the merger or consolidation the shares of the class or series of stock of the constituent corporation as to which appraisal rights are available were listed on a national securities exchange, the Court shall dismiss the proceedings as to all holders of such shares who are otherwise entitled to appraisal rights unless (1) the total number of shares entitled to appraisal |
(h) | After the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its discretion determines otherwise for good cause shown, and except as provided in this subsection, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the surviving corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the amount so paid and the fair value of the shares as determined by the Court, and (2) interest theretofore accrued, unless paid at that time. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting corporation pursuant to subsection (f) of this section and who has submitted such stockholder’s certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally determined that such stockholder is not entitled to appraisal rights under this section. |
(i) | The Court shall direct the payment of the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Court’s decree may be enforced as other decrees in the Court of Chancery may be enforced, whether such surviving or resulting corporation be a corporation of this State or of any state. |
(j) | The costs of the proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorney’s fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal. |
(k) | From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver to the surviving or resulting corporation a written withdrawal of such stockholder’s demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholder’s demand for appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the effective date of the merger or consolidation, as set forth in subsection (e) of this section. |
1 Year Sharps Compliance Chart |
1 Month Sharps Compliance Chart |
It looks like you are not logged in. Click the button below to log in and keep track of your recent history.
Support: +44 (0) 203 8794 460 | support@advfn.com
By accessing the services available at ADVFN you are agreeing to be bound by ADVFN's Terms & Conditions