EXACTECH, INC. (NASDAQ:EXAC) Files An 8-K Entry into a Material Definitive AgreementItem 1.01
On October22, 2017, the Board adopted and approved an amendment to the Company’s Bylaws to include an exclusive forum selection provision (the “Bylaw Amendment”). to this provision, among other things, unless the Company consents in writing to the selection of another judicial forum, the sole and exclusive judicial forum for: (i)any derivative action or proceeding brought on behalf of the Company; (ii)any action asserting a claim of or for breach of a fiduciary duty owed by any current or former director, officer, other employee, or stockholder of the Company to the Company or to the Company’s shareholders, or a claim for aiding and abetting any such breach; (iii)any action asserting a claim against the Company or against any current or former director, officer, other employee, or shareholder of the Company arising to any provision of the Florida Business Corporation Act, the Company’s articles of incorporation, or the Company’s Bylaws; or (iv)any action asserting a claim against the Company or against any current or former director, officer, other employee, or shareholder of the Company that is governed by the internal affairs doctrine, shall be a state court located within the State of Florida or, if no state court located within the State of Florida has jurisdiction in respect of any of the foregoing actions, the United States District Court for the Northern District of Florida.
The foregoing description of the Bylaw Amendment is only a summary and is qualified in its entirety by reference to the complete text of the Bylaw Amendment, which is filed as Exhibit 3.1 to this Current report on Form 8-K and incorporated herein by reference.
On October23, 2017, the Company and Parent issued a joint press release announcing the execution of the Merger Agreement, a copy of which has been filed as Exhibit 99.1 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.
Additionally, the Company’s founders and certain members of the Company’s management have entered into a rollover and voting agreement with Parent (the “Rollover Agreement”), to which, subject to certain exceptions, such persons have agreed to vote all of their respective shares of Company Common Stock, aggregating approximately 23.0% of the issued and outstanding Company Common Stock, in favor of the Merger. A copy of the Rollover Agreement is filed as Exhibit 99.2 to this Current Report on Form 8-K and is incorporated by reference in this Item 1.01.
Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements within the meaning of Section27A of the Securities Act of 1933, as amended, and Section21E of the Securities Exchange Act of 1934, as amended. These forward-looking statements include, but are not limited to, statements regarding the Company’s proposed business combination transaction with TPG Capital, all statements regarding the Company’s expected future financial position, results of operations, cash flows, dividends, financing plans, business strategy, budgets, capital expenditures, competitive positions, growth opportunities, plans and objectives of management, and statements containing words such as “anticipate,” “approximate,” “believe,” “plan,” “estimate,” “expect,” “project,” “could,” “would,” “should,” “will,” “intend,” “may,” “potential,” “upside,” and other similar expressions. All statements in this press release that are not historical facts, are forward-looking statements that reflect the best judgment of the Company based upon currently available information.
Such forward-looking statements are inherently uncertain, and shareholders and other potential investors must recognize that actual results may differ materially from the Company’s expectations as a result of a variety of factors, including, without limitation, those discussed below. Such forward-looking statements are based upon management’s current expectations and include known and unknown risks, uncertainties and other factors, many of which the Company is unable to predict or control, that may cause its actual results, performance or plans to differ materially from any future results, performance or plans expressed or implied by such forward-looking statements. These statements involve risks, uncertainties and other factors discussed below and detailed from time to time in the Company’s filings with the Securities and Exchange Commission (the “SEC”).
Risks and uncertainties related to the proposed Merger include, but are not limited to, the risk that the Company’s shareholders do not approve the Merger, potential adverse reactions or changes to business relationships resulting from the announcement or completion of the Merger, uncertainties as to the timing of the Merger, adverse effects on the Company’s stock price resulting from the announcement of the Merger or the failure of the Merger to be completed, competitive responses to the announcement of the Merger, the risk that regulatory, licensure or other approvals required for the consummation of the Merger are not obtained or are obtained subject to terms and conditions that are not anticipated, litigation relating to the Merger, the inability to retain key personnel, and any changes in general economic and/or industry-specific conditions.
In addition to the factors set forth above, other factors that may affect the Company’s plans, results or stock price are set forth in its most recent Annual Report on Form 10-K and in its subsequently filed reports on Forms 10-Q and 8-K.
Many of these factors are beyond the Company’s control. The Company cautions investors that any forward-looking statements made by it are not guarantees of future performance. The Company disclaims any obligation to update any such factors or to announce publicly the results of any revisions to any of the forward-looking statements to reflect future events or developments.
Additional Information and Where to Find It
This report does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval. This communication may be deemed to be solicitation material in respect of the proposed Merger. In connection with the Merger, the Company will prepare and mail a proxy statement to its shareholders. In addition, certain participants in the merger will file with the SEC a Schedule 13E-3 transaction statement. These documents will be filed with or furnished to the SEC. Investors and shareholders are urged to read carefully and in their entirety these materials and other materials filed with or furnished to the SEC when they become available, as they will contain important information about the Company, the merger and related matters. In addition to receiving the proxy statement by mail, shareholders also will be able to obtain the proxy statement and Schedule 13E-3 transaction statement, as well as other filings containing information about the Company, the merger and related matters, without charge, from the SEC’s website (http://www.sec.gov). In addition, these documents can be obtained, without charge, by sending an e-mail to investors@exac.com, along with complete contact details and a mailing address.
Participants in Solicitation
The Company and certain of its directors, executive officers and other members of management and employees may, under SEC rules, be deemed to be “participants” in the solicitation of proxies from shareholders with respect to the Merger. Information regarding the persons or entities who may be considered “participants” in the solicitation of proxies will be set forth in the proxy statement and Schedule 13E-3 transaction statement relating to the Merger when each is filed with the SEC. Information regarding the directors and executive officers of the
Company is set forth in the proxy statement for the Company’s 2017 Annual Meeting of Shareholders, which was filed with the SEC on March24, 2017. Additional information regarding the interests of such potential participants will be included in the proxy statement and Schedule 13E-3 transaction statement and the other relevant documents filed with the SEC when they become available.
| Item 1.01 | Financial Statements and Exhibits. |
(d) Exhibits
|
Exhibit Number |
Description |
| 2.1* | Agreement and Plan of Merger, dated as of October22, 2017, by and among Exactech, Inc., Osteon Holdings, L.P. and Osteon Merger Sub, Inc. |
| 3.1 | Amendment to the Bylaws of Exactech, Inc. |
| 10.1 | Equity Commitment Letter, by and among TPG Partners VII, L.P., Osteon Holdings, L.P. and Exactech, Inc. |
| 99.1 | Press Release dated October23, 2017 |
| 99.2 | Rollover and Voting Agreement, dated October22, 2017 |
| * | The exhibits to the Agreement and Plan of Merger have been omitted from this filing to Item 601(b)(2) of Regulation S-K. The Company will furnish copies of any such schedules and exhibits to the SEC upon request. |
EXHIBIT INDEX
|
Exhibit Number |
Description |
| 2.1* | Agreement and Plan of Merger, dated as of October22, 2017, by and among Exactech, Inc., Osteon Holdings, L.P. and Osteon Merger Sub, Inc. |
| 3.1 | Amendment to the Bylaws of Exactech, Inc. |
| 10.1 | Equity Commitment Letter, by and among TPG Partners VII, L.P., Osteon Holdings, L.P. and Exactech, Inc. |
| 99.1 | Press Release dated October23, 2017 |
| 99.2 | Rollover and Voting Agreement, dated October22, 2017 |
| * | The exhibits to the Agreement and Plan of Merger have been omitted from this filing to Item 601(b)(2) of Regulation S-K. The Company will furnish copies of any such schedules and exhibits to the SEC upon request. |
EXACTECH INC ExhibitEX-2.1 2 d457342dex21.htm EX-2.1 EX-2.1 Exhibit 2.1 Execution Version AGREEMENT AND PLAN OF MERGER Dated as of October 22,…To view the full exhibit click here
About EXACTECH, INC. (NASDAQ:EXAC)
Exactech, Inc. develops, manufactures, markets, distributes and sells orthopedic implant devices, related surgical instrumentation and biologic services to hospitals and physicians. The Company’s segments include knee implants, hip implants, biologics and spine, extremity implants and other products. Its other products segment includes surgical instruments, bone cement and other implant product lines. The Company offers knee implant systems, including Exactech Knee System and Optetrak Logic. It offers various products and services for the healing and regeneration of bone and soft tissue. Its hip solutions address the continuum of hip arthroplasty. It offers solutions for shoulders with traumatic injuries. Its joint replacement products are used to repair or replace joints that have deteriorated as a result of injury or disease.