X-Rite (XRIT) May Pay $16.6M Termination Fee If Danaher (DHR) Deal Doesn't Go Through
Tweet
Share
E-mailGet Alerts DHR Hot Sheet
Join SI Premium – FREE
On April 10, 2012, Danaher Corporation, a Delaware corporation, Termessos Acquisition Corp., a Michigan corporation and a wholly-owned subsidiary of Danaher (NYSE: DHR), and X-Rite, Incorporated, a Michigan corporation (Nasdaq: XRIT), entered into an Agreement and Plan of Merger pursuant to which Danaher, through Purchaser, will commence an offer to acquire all of the outstanding shares of the Company’s common stock, par value $0.10 per share (the “Shares”) for $5.55 per share in cash, without interest (the “Per Share Price”).
Completion of the Offer is subject to several conditions, including (i) that a majority of the Shares outstanding on a fully diluted basis be validly tendered and not validly withdrawn prior to the expiration of the Offer; (ii) any applicable waiting period or approval under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the antirust laws of Germany or Austria and any other material applicable foreign antitrust laws shall have expired or been earlier terminated or obtained; (iii) the absence of a material adverse effect on the Company; and (iv) certain other customary conditions.
The Merger Agreement also provides that following consummation of the Offer and satisfaction of certain customary conditions, Purchaser will be merged with and into the Company (the “Merger”), with the Company surviving as a wholly-owned subsidiary of Danaher. Upon completion of the Merger, each Share outstanding immediately prior to the effective time of the Merger (other than Shares owned by Danaher and Purchaser) will be converted into the right to receive the Per Share Price.
If Purchaser holds 90% or more of the outstanding Shares following the completion of the Offer, the parties will effect the Merger as a short-form merger without the need for approval by the Company’s shareholders. If Purchaser does not hold 90% or more of the outstanding Shares following the completion of the Offer, the Company may hold a special meeting to obtain shareholder approval of the Merger. Subject to the terms of the Merger Agreement and the number of authorized Shares available under the Company’s articles of incorporation, the Company has granted Purchaser an irrevocable option (the “Top-Up Option”), exercisable after completion of the Offer, to purchase at the Per Share Price additional Shares from the Company as necessary so that Danaher, Purchaser or their subsidiaries own one Share more than 90% of the total Shares outstanding immediately after the issuance of the Shares pursuant to the Top-Up Option on a fully diluted basis.
Danaher and the Company have made customary representations, warranties and covenants in the Merger Agreement, including covenants (i) to promptly effect all registrations, filings and submissions required pursuant to the HSR Act and any other required governmental approvals, the Securities Exchange Act of 1934 and other applicable laws with respect to the Offer and the Merger; and (ii) to use their respective reasonable best efforts to take all necessary, proper or advisable actions to effectuate the transactions contemplated by the Merger Agreement.
The Company has agreed to (i) conduct its business in the ordinary course consistent with past practice prior to consummation of the Merger and (ii) use commercially reasonable efforts to preserve its business organization intact and maintain existing relations and goodwill with governmental entities, customers, suppliers, employees and business associates. The Company has also agreed to comply with certain other operating covenants through the consummation of the Merger.
The Company has agreed not to solicit, initiate, facilitate, or engage in discussions concerning, alternative proposals for the acquisition of the Company. However, subject to the satisfaction of certain conditions, the Company and its board of directors, as applicable, would be permitted to take
certain actions which may, as more fully described in the Merger Agreement, include terminating the Merger Agreement to enter into an unsolicited superior proposal or effecting a change of the board of directors’ recommendation, with respect to an unsolicited superior proposal or the occurrence of certain intervening events, if the board of directors of the Company has concluded in good faith after consultation with its advisors that failure to do so would be inconsistent with its fiduciary duties. The Merger Agreement can be terminated by Danaher or the Company under certain circumstances, and the Company will be required to pay Danaher a termination fee of $16.6 million in connection with certain terminations.
The Merger Agreement has been unanimously adopted by the Board of Directors of the Company and the Board of Directors of the Company unanimously recommends that shareholders of the Company tender their Shares in the Offer and, if necessary, vote to approve the Merger.
Completion of the Offer is subject to several conditions, including (i) that a majority of the Shares outstanding on a fully diluted basis be validly tendered and not validly withdrawn prior to the expiration of the Offer; (ii) any applicable waiting period or approval under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the antirust laws of Germany or Austria and any other material applicable foreign antitrust laws shall have expired or been earlier terminated or obtained; (iii) the absence of a material adverse effect on the Company; and (iv) certain other customary conditions.
The Merger Agreement also provides that following consummation of the Offer and satisfaction of certain customary conditions, Purchaser will be merged with and into the Company (the “Merger”), with the Company surviving as a wholly-owned subsidiary of Danaher. Upon completion of the Merger, each Share outstanding immediately prior to the effective time of the Merger (other than Shares owned by Danaher and Purchaser) will be converted into the right to receive the Per Share Price.
If Purchaser holds 90% or more of the outstanding Shares following the completion of the Offer, the parties will effect the Merger as a short-form merger without the need for approval by the Company’s shareholders. If Purchaser does not hold 90% or more of the outstanding Shares following the completion of the Offer, the Company may hold a special meeting to obtain shareholder approval of the Merger. Subject to the terms of the Merger Agreement and the number of authorized Shares available under the Company’s articles of incorporation, the Company has granted Purchaser an irrevocable option (the “Top-Up Option”), exercisable after completion of the Offer, to purchase at the Per Share Price additional Shares from the Company as necessary so that Danaher, Purchaser or their subsidiaries own one Share more than 90% of the total Shares outstanding immediately after the issuance of the Shares pursuant to the Top-Up Option on a fully diluted basis.
Danaher and the Company have made customary representations, warranties and covenants in the Merger Agreement, including covenants (i) to promptly effect all registrations, filings and submissions required pursuant to the HSR Act and any other required governmental approvals, the Securities Exchange Act of 1934 and other applicable laws with respect to the Offer and the Merger; and (ii) to use their respective reasonable best efforts to take all necessary, proper or advisable actions to effectuate the transactions contemplated by the Merger Agreement.
The Company has agreed to (i) conduct its business in the ordinary course consistent with past practice prior to consummation of the Merger and (ii) use commercially reasonable efforts to preserve its business organization intact and maintain existing relations and goodwill with governmental entities, customers, suppliers, employees and business associates. The Company has also agreed to comply with certain other operating covenants through the consummation of the Merger.
The Company has agreed not to solicit, initiate, facilitate, or engage in discussions concerning, alternative proposals for the acquisition of the Company. However, subject to the satisfaction of certain conditions, the Company and its board of directors, as applicable, would be permitted to take
certain actions which may, as more fully described in the Merger Agreement, include terminating the Merger Agreement to enter into an unsolicited superior proposal or effecting a change of the board of directors’ recommendation, with respect to an unsolicited superior proposal or the occurrence of certain intervening events, if the board of directors of the Company has concluded in good faith after consultation with its advisors that failure to do so would be inconsistent with its fiduciary duties. The Merger Agreement can be terminated by Danaher or the Company under certain circumstances, and the Company will be required to pay Danaher a termination fee of $16.6 million in connection with certain terminations.
The Merger Agreement has been unanimously adopted by the Board of Directors of the Company and the Board of Directors of the Company unanimously recommends that shareholders of the Company tender their Shares in the Offer and, if necessary, vote to approve the Merger.
Serious News for Serious Traders! Try StreetInsider.com Premium Free!
You May Also Be Interested In
- Real and RE/MAX Holdings receive court approval for merger
- Alzamend Neuro (ALZN) files for 98.4M share offering by selling stockholders
- Lazard Global Total Return fund declares $0.1534 monthly distribution
Create E-mail Alert Related Categories
Corporate News, Mergers and AcquisitionsRelated Entities
X-Rite/DanaherSign up for StreetInsider Free!
Receive full access to all new and archived articles, unlimited portfolio tracking, e-mail alerts, custom newswires and RSS feeds - and more!
