EnerNOC, Inc. (NASDAQ:ENOC) Files An 8-K Entry into a Material Definitive Agreement
Item1.01
| Entry into a Material Definitive Agreement. |
Agreement and Plan of Merger
On June 21, 2017, EnerNOC, Inc., a Delaware corporation (the
Company), entered into an Agreement and
Plan of Merger (the Merger Agreement)
with Enel Green Power North America, Inc., a Delaware corporation
(Parent), Pine Merger Sub, Inc., a
Delaware corporation and a wholly-owned subsidiary of Parent
(Purchaser), and Enel S.p.A., an
Italian joint-stock company and parent of Parent
(Guarantor). The board of directors of
the Company has unanimously approved the Merger Agreement.
to the Merger Agreement, upon the terms and subject to the
conditions thereof, Purchaser will commence a tender offer (the
Offer) no later than July10, 2017, to
acquire all of the outstanding shares of common stock of the
Company, $0.001 par value per share (the
Shares), at a purchase price of $7.67
per Share in cash (the Offer Price),
without interest, subject to any required withholding of taxes.
The obligation of Purchaser to purchase Shares tendered in the
Offer is subject to the satisfaction or waiver of a number of
conditions set forth in the Merger Agreement, including (i)that
there shall have been validly tendered and not validly withdrawn
Shares that represent one more than 50% of the total number of
Shares outstanding at the time of the expiration of the Offer,
including the total number of Shares issuable to holders of
options from which Company has received notices of exercise prior
to the expiration of the Offer (the Minimum
Condition) and (ii)the expiration or termination of
the applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended. The consummation
of the Offer is not subject to any financing condition.
Following the completion of the Offer and subject to the
satisfaction or waiver of certain conditions set forth in the
Merger Agreement, Purchaser will merge with and into the Company,
with the Company surviving as a wholly-owned subsidiary of Parent
(the Merger). At the effective time of
the Merger (the Effective Time), the
Shares not purchased to the Offer (other than Shares held by the
Company or by stockholders of the Company who have perfected
their statutory rights of appraisal under Delaware law) will each
be converted into the right to receive an amount in cash equal to
the Offer Price (the Merger
Consideration), without interest, subject to any
required withholding of taxes.
Each Company stock option (Company
Option) that is outstanding as of immediately prior
to the Offer Acceptance Time (as defined below) shall accelerate
and become fully vested and exercisable effective immediately
prior to, and contingent upon, the Offer Acceptance Time. As of
the Effective Time each Company Option that is then outstanding
and unexercised shall be cancelled and converted into the right
to receive cash (without interest) in an amount equal to the
product of (i)the total number of Shares subject to such fully
vested Company Option immediately prior to the Effective Time,
multiplied by (ii)the excess, if any, of (x)the Merger
Consideration over (y)the exercise price payable per Share under
such Company Option. No holder of a Company Option that has an
exercise price per Share that is equal to or greater than the
Merger Consideration shall be entitled to any payment with
respect to such cancelled Company Option before or after the
Effective Time.
to the Merger Agreement, each restricted stock unit to be issued
Shares (the Company RSU) that is
outstanding as of immediately prior to the Effective Time shall
accelerate and become fully vested effective immediately prior
to, and contingent upon, the Effective Time. In lieu of any
issuance of Shares in settlement of such vested Company RSU, as
of the Effective Time, each Company RSU that is outstanding shall
be cancelled and converted into the right to receive cash
(without interest) in an amount equal to the product of (i)the
total number of Shares issuable in settlement of such fully
vested Company RSU immediately prior to the Effective Time
multiplied by (ii)the Merger Consideration.
Each award of Shares that is subject to vesting or forfeiture or
repurchase by the Company (the Company Restricted
Stock Award) that is outstanding as of immediately
prior to the Effective Time shall accelerate and become fully
vested such that the Companys right of reacquisition or
repurchase, as applicable, shall lapse in full effective
immediately prior to, and contingent upon, the Effective Time. As
of the Offer Acceptance Time, each Share underlying each Company
Restricted Stock Award that is outstanding shall be treated as an
outstanding Share for purposes of this Agreement, including for
purposes of tendering to the Offer.
Following the completion of the Offer, if Parent and Purchaser
have satisfied the conditions to the consummation of the Merger
set forth in the Merger Agreement, the Merger will become
effective on the date on which the Purchaser accepts, for the
first time, for payment and pays for such number of Shares
validly tendered and not properly withdrawn as satisfies the
Minimum Condition (the Offer Acceptance
Time) in accordance with and subject to the
Delaware General Corporation Law.
The Merger Agreement includes representations and warranties and
covenants of the parties customary for a transaction of this
nature. Until the earlier of the Offer Acceptance Time and the
termination of the Merger Agreement, the Company has agreed to
operate its business and the business of its subsidiaries in the
ordinary course and has agreed to certain other operating
covenants, as set forth more fully in the Merger Agreement. The
Company has also agreed not to solicit or initiate discussions
with any third party regarding acquisition proposals.
The Merger Agreement includes a remedy of specific performance
for the Company, Parent and Purchaser. The Merger Agreement also
includes customary termination provisions for both the Company
and Parent and provides that, in connection with the termination
of the Merger Agreement by Parent due to a failure to meet the
Minimum Condition, the Company will pay the expenses of Parent
owed to third parties in connection with the Transaction (the
Parent Expenses) up to a maximum of
$1.65million. In addition, in connection with the termination of
the Merger Agreement under specified circumstances, including
termination by the Company to accept and enter into a definitive
agreement with respect to an unsolicited superior offer, the
Company will be required to pay a termination fee of $8.75million
(approximately 3.5% of the net present value equity value of the
transaction), which will include any Parent Expenses paid by the
Company (the Termination Fee). A
superior offer is a written proposal to which a third party would
acquire, among other acquisition structures set forth in the
Merger Agreement, 80% or more of the voting power of the Company
on terms that the board of directors of the Company determines in
its good faith judgment (after consultation with its financial
advisors and outside legal counsel) to be more favorable to the
Companys stockholders from a financial point of view than the
terms of the Offer and the Merger and is reasonably likely to be
consummated in accordance with the terms proposed taking into
account relevant factors. Any such termination of the Merger
Agreement by the Company is subject to certain conditions,
including the Companys compliance with certain procedures set
forth in the Merger Agreement and a determination by the board of
directors of the Company that the failure to take such action
would reasonably constitute a breach of its fiduciary duties
under applicable law, payment of the Termination Fee by the
Company and the execution of a definitive agreement by the
Company with such third party.
Tender and Support Agreement
Concurrently with the execution and delivery of the Merger
Agreement, on June21, 2017, Timothy Healy, the Companys Chairman
and Chief Executive Officer, and David Brewster, the Companys
President, each entered into a support agreement (the
Support
Agreement) with Parent and Purchaser,
to which each of Mr.Healy and Mr.Brewster agreed, among other
things, to tender his Shares to the Offer and, if necessary, vote
his Shares in favor of the adoption of the Merger Agreement and
the approval of the Merger. As of June21, 2017, approximately 9%
of the outstanding Shares are subject to the Support Agreement.
The Support Agreement terminates in the event the Merger
Agreement is terminated.
Additional Information
The foregoing descriptions of the Merger Agreement and the
Support Agreement are not complete and are qualified in their
entirety by reference to the Merger Agreement, which is attached
as Exhibit 2.1 to this report and incorporated herein by
reference, and the Support Agreement, the form of which is
attached as Exhibit 2.2 to this report and incorporated herein by
reference.
The Merger Agreement and the Support Agreement, and the foregoing
descriptions of each agreement, have been included to provide
investors and stockholders with information regarding the terms
of each agreement. The assertions embodied in the representations
and warranties contained in the Merger Agreement are qualified by
information in confidential disclosure schedules delivered by the
Company to Parent in connection with the signing of the Merger
Agreement. Moreover, certain representations and warranties in
the Merger Agreement were made as of a specified date, may be
subject to a contractual standard of materiality different from
what might be viewed as material to stockholders, or may have
been used for the purpose of allocating risk between the parties
to the Merger Agreement. Accordingly, the representations and
warranties in the Merger Agreement should not be relied on by any
persons as characterizations of the actual state of facts and
circumstances of the Company at the time they were made and the
information in the Merger Agreement should be considered in
conjunction with the entirety of the factual disclosure about the
Company in the Companys public reports filed with the SEC.
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 Companys public disclosures.
Notice to Investors/Important Additional Information will
be Filed with the U.S. Securities and Exchange
Commission
The Offer has not yet commenced. This report and the attached
exhibits are neither an offer to buy nor a solicitation of an
offer to sell any securities of the Company. The solicitation and
the offer to buy the Shares will only be made to a tender offer
statement on Schedule TO, including an offer to purchase, a
letter of transmittal and other related materials that Purchaser
intends to file with the Securities and Exchange Commission (the
SEC). In addition, the Company will
file with the SEC a Solicitation/Recommendation Statement on
Schedule 14D-9 with respect to the Offer. Once filed, investors
will be able to obtain the tender statement on Schedule TO, the
offer to purchase, the Solicitation/Recommendation Statement of
the Company on Schedule 14D-9 and related materials
with respect to the tender offer and the merger, free of charge
at the website of the SEC at www.sec.gov or from the information
agent and dealer manager named in the tender offer materials.
Investors may also obtain, at no charge, the documents filed with
or furnished to the SEC by the Company under the Investors
section of the Companys website at www.enernoc.com. Investors are
advised to read these documents when they become available,
including the Solicitation/Recommendation Statement of the
Company and any amendments thereto, as well as any other
documents relating to the Offer and the Merger that are filed
with the SEC, carefully and in their entirety prior to making any
decisions with respect to whether to tender their shares into the
Offer because they contain important information, including the
terms and conditions of the Offer.
Forward
Looking Statements
Certain statements
either contained in or incorporated by reference into this
document, other than purely historical information, including
statements relating to the sale of the Company and any statements
relating to the Companys business and expected operating results,
and the assumptions upon which those statements are based, are
forward-looking statements. These forward-looking statements
generally include statements that are predictive in nature and
depend upon or refer to future events or conditions, and include
words such as believes, plans, anticipates, projects, estimates,
expects, intends, strategy, future, opportunity, may, will,
should, could, potential, or similar expressions. Such
forward-looking statements include the ability of the Company,
Parent, Purchaser and Guarantor to complete the transactions
contemplated by the Merger Agreement, including the parties
ability to satisfy the conditions to the consummation of the
Offer and the other conditions set forth in the Merger Agreement
and the possibility of any termination of the Merger Agreement.
The forward-looking statements contained in this document are
based on current expectations and assumptions that are subject to
risks and uncertainties which may cause actual results to differ
materially from the forward-looking statements. Actual results
may differ materially from current expectations because of risks
associated with uncertainties as to the timing of the Offer and
the subsequent Merger; uncertainties as to how many of the
Companys stockholders will tender their Shares in the Offer; the
risk that competing offers or acquisition proposals will be made;
the possibility that various conditions to the consummation of
the Offer or the Merger may not be satisfied or waived, including
that a governmental entity may prohibit, delay or refuse to grant
approval for the consummation of the Offer or the Merger; the
effects of disruption from the transactions of the Companys
business and the fact that the announcement and pendency of the
transactions may make it more difficult to establish or maintain
relationships with employees, suppliers and other business
partners; and other uncertainties pertaining to the business of
the Company, including those detailed in the Companys public
filings with the Securities and Exchange Commission from time to
time, including the Companys most recent Annual Report on Form
10-K for the year ended December31, 2016 and Quarterly Reports on
Form 10-Q. The reader is cautioned not to unduly rely on these
forward-looking statements. The Company expressly disclaims any
intent or obligation to update or revise publicly these
forward-looking statements except as required by law.
Item9.01. |
Financial Statements and Exhibits |
(d) |
Exhibits. |
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| 2.1* |
Agreement and Plan of Merger, dated as of June21, 2017, by and among EnerNOC, Inc., Parent, Purchaser and Guarantor. |
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| 2.2 |
Form of Tender and Support Agreement, dated June21, 2017, by and among Parent, Purchaser and each of the shareholders named therein. |
* |
Schedules omitted to item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request. |
to the
requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
| EnerNOC, Inc. | ||||||
| Dated: June 23, 2017 | ||||||
| By: |
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| William G. Sorenson | ||||||
| Chief Financial Officer |
Exhibit
Index
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| 2.1* |
Agreement and Plan of Merger, dated as of June21, 2017, by and among EnerNOC, Inc., Parent, Purchaser and Guarantor. |
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| 2.2 |
Form of Tender and Support Agreement, dated June21, 2017, by and among Parent, Purchaser and each of the shareholders named therein. |
* |
Schedules omitted |
ENERNOC INC ExhibitEX-2.1 2 d416334dex21.htm EX-2.1 EX-2.1 Exhibit 2.1 EXECUTION VERSION AGREEMENT AND PLAN OF MERGER among: ENERNOC,…To view the full exhibit click here About EnerNOC, Inc. (NASDAQ:ENOC)
EnerNOC, Inc. is a provider of energy intelligence software (EIS) and demand response solutions. The Company’s EIS provides enterprise solutions, utility solutions and energy procurement solutions. The Company’s EIS offers enterprise customers with a Software-as-a-Service (SaaS) solutions with various areas of functionalities, including energy cost visualization, budgets, forecasts and accruals; project tracking, and demand management. Its EIS provides its utility customers with a SaaS-based customer engagement platform, which collects and processes data and enables its utility customers to provide personalized communication and recommendations to their customers. Its EIS includes an energy procurement platform that helps its enterprise and utility customers. Its procurement platform offers its enterprise and utility customers with features, such as energy contracts management. Its technology includes over two components: its EIS platform and Network Operations Center (NOC).