NIMBLE STORAGE, INC. (NYSE:NMBL) Files An 8-K Entry into a Material Definitive Agreement
Item1.01.
| Entry into a Material Definitive Agreement. |
Merger Agreement
On March6, 2017, Nimble Storage,Inc., a Delaware corporation
(Nimble Storage), Hewlett Packard Enterprise Company, a
Delaware corporation (HPE) and Nebraska Merger Sub,Inc., a
Delaware corporation and a wholly owned subsidiary of HPE
(Merger Sub), entered into a definitive Agreement and Plan
of Merger (the Merger Agreement).
to and subject to the terms and conditions of the Merger
Agreement, Merger Sub will commence an all-cash tender offer (the
Offer) for any and all of Nimble Storages outstanding
shares of common stock, par value $0.001 per share (the
Shares), at a purchase price of $12.50 per Share (the
Offer Price), net to the seller in cash, without interest,
and subject to any required withholding of taxes.Under the Merger
Agreement, Merger Sub is required to commence the Offer within
ten business days after the date of the Merger Agreement. The
Offer will remain open for a minimum of 20 business days from the
date of commencement.
The obligation of Merger Sub to purchase Shares tendered in the
Offer is subject to customary closing conditions, including
(i)immediately prior to the expiration of the Offer, a number of
Shares must have been validly tendered and not validly withdrawn
that, when added to the number of Shares (if any) then owned by
HPE or Merger Sub, equals at least one Share more than half of
all Shares then outstanding, (ii)the expiration or termination of
applicable waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, (iii)the relevant approvals
under the antitrust and competition laws of Germany and Austria
have been obtained, (iv)the absence of injunctions or other legal
restraints preventing the consummation of the Offer or the Merger
(as defined below), (v)the accuracy of the representations and
warranties made by Nimble Storage in the Merger Agreement,
subject to specified materiality qualifications, (vi)compliance
by Nimble Storage with its covenants in the Merger Agreement in
all material respects, (vii)the absence of a Material Adverse
Effect (as defined in the Merger Agreement) on Nimble Storage
since the date of the Merger Agreement that is continuing and
(viii)the other conditions set forth in Annex I to the Merger
Agreement. The consummation of the Offer is not subject to a
financing condition and Nimble Storage expects HPE to finance the
payment of the applicable consideration in the Offer and the
Merger with cash on hand.
Following the completion of the Offer, subject to the absence of
injunctions or other legal restraints preventing the consummation
of the Merger, Merger Sub will merge with and into Nimble
Storage, with Nimble Storage surviving the merger as a wholly
owned subsidiary of HPE (the Surviving Corporation), to
the procedure provided for under Section251(h)of the Delaware
General Corporation Law (the Merger).The Merger will be
effected as soon as practicable following the acceptance for
payment by Merger Sub of Shares validly tendered and not
withdrawn in the Offer, without a vote on the adoption of the
Merger Agreement by Nimble Storage stockholders.
At the effective time of the Merger (the Effective Time),
each issued and outstanding Share (other than Shares owned by
(i)Nimble Storage, HPE or Merger Sub, which Shares will be
canceled and will cease to exist, (ii)any subsidiary of Nimble
Storage or any subsidiary of HPE (other than Merger Sub), which
Shares will be converted into such number of shares of common
stock of the Surviving Corporation so as to maintain relative
ownership percentages or (iii)stockholders who validly exercise
appraisal rights under Delaware law with respect to such Shares)
will be converted into the right to receive an amount in cash
equal to the Offer Price, without interest, subject to any
required withholding taxes.
to the terms of the Merger Agreement, (i)each Nimble Storage
stock option that is vested as of immediately prior to the
Effective Time (including after giving effect to acceleration of
50% of the unvested Nimble Storage stock options held by Nimble
Storages Chief Executive Officer) will be cancelled in exchange
for an amount in cash equal to the Offer Price, less the option
exercise price, (ii)each other Nimble Storage stock option will
be assumed by HPE and converted into an HPE stock option,
(iii)each Nimble Storage restricted stock unit held by any
non-executive director of Nimble Storage and 50% of the unvested
Nimble Storage restricted stock units held by Nimble Storages
Chief Executive Officer will be converted into the right to
receive an amount in cash equal to the Offer Price, (iv)each
other Nimble Storage restricted stock unit will be assumed by HPE
and converted into an HPE restricted stock unit, (v)each share of
restricted Nimble Storage common stock will convert into an
amount of restricted cash equal to the Offer Price payable over
the same vesting schedule as the restricted shares and (vi)each
Nimble Storage restricted stock unit with TSR performance metrics
will be converted based on actual performance through three
business days prior to the Effective Time into (A)for the pro
rata portion of the award that has achieved the TSR metrics for
the period through the three business days prior to the Effective
Time (or, in the case of Nimble Storages Chief Executive Officer,
50% of the earned portion of the award), an immediate cash
payment equal to the Offer Price and (B)for the remaining portion
of the award earned, HPE service-based restricted stock units.
to and subject to the terms and conditions of the Merger
Agreement, Nimble Storage has agreed, among other things, (i)to
carry on its business in the ordinary course during the period
between the execution of the Merger Agreement and the
consummation of the Merger; (ii)subject to certain customary
exceptions set forth in the Merger Agreement to permit Nimble
Storages board of directors to comply with its fiduciary duties,
to recommend that Nimble Storages stockholders accept the Offer
and tender all of their shares to the Offer; (iii)not to solicit
alternative acquisition proposals and (iv)to certain restrictions
on its ability to respond to any unsolicited acquisition
proposals. The Merger Agreement also contains customary
representations, warranties and covenants of each of Nimble
Storage, HPE and Merger Sub.
The Merger Agreement contains certain customary termination
rights for both HPE and Nimble Storage, including, among others,
by either HPE or Nimble Storage upon the failure of the Offer
conditions to be satisfied or validly waived on or before
September6, 2017, subject to extension by either HPE or Nimble
Storage to December6, 2017 if all conditions to the Offer other
than the conditions relating to regulatory approvals have been
satisfied as of that date.
Upon termination of the Merger Agreement under specified
circumstances, including (i)a termination by Nimble Storage to
enter into an agreement for an alternative transaction that
constitutes a Superior Proposal (as defined in the Merger
Agreement) or (ii)a termination by HPE due to a change in the
Nimble Storage board of directors recommendation in favor of the
Offer, Nimble Storage is required to pay HPE a termination fee of
approximately $40.8 million.
The foregoing description of the Merger Agreement does not
purport to be complete and is qualified in its entirety by
reference to the actual terms of the Merger Agreement, a copy of
which is attached hereto as Exhibit2.1 and incorporated herein by
reference. The Merger Agreement has been included to provide
investors with information regarding its terms and is not
intended to provide any financial or other factual information
about Nimble Storage, HPE or Merger Sub. In particular, the
representations, warranties and covenants contained in the Merger
Agreement (i)were made only for purposes of that agreement and as
of specific dates, (ii)were made solely for the benefit of the
parties to the Merger Agreement, (iii)may be subject to
limitations agreed upon by the parties, including being qualified
by confidential disclosures made for the purposes of allocating
contractual risk between the parties to the Merger Agreement
rather than establishing those matters as facts and (iv)may be
subject to standards of materiality applicable to the contracting
parties that differ from those applicable to investors. Moreover,
information concerning the subject matter of the representations,
warranties and covenants may change after the date of the Merger
Agreement, which subsequent information may or may not be fully
reflected in public disclosures by HPE or Nimble Storage.
Accordingly, investors should read the representations and
warranties in the Merger Agreement not in isolation but only in
conjunction with the other information about HPE or Nimble
Storage and their respective subsidiaries that therespective
companies include in reports, statements and other filings they
make with the U.S. Securities and Exchange Commission (the
SEC).
Tender and Support Agreement
In connection with the execution of the Merger Agreement, certain
stockholders of Nimble Storage (collectively, the
Stockholders) have entered into a Tender and Support
Agreement, dated as of March6, 2017, with HPE and Merger Sub (the
Support Agreement). Subject to the terms and conditions of
the Support Agreement, the Stockholders have agreed, among other
things, to tender their Shares (representing in the aggregate
approximately 21% of the total outstanding Shares) into the
Offer, and, subject to certain exceptions, not to transfer their
shares that are subject to the Support Agreement. The Support
Agreement will terminate with respect to each Stockholder upon
the first to occur of (i)the valid termination of the Merger
Agreement, (ii)the completion of the Merger, (iii)entry into an
amendment or modification of the Merger Agreement or any waiver
of Nimble Storages
rights under the Merger Agreement, in each case that results in a
decrease in the Offer Price or (iv)the mutual written consent of
HPE and such Stockholder.
The foregoing description of the Support Agreement does not
purport to be complete and is qualified in its entirety by
reference to the Support Agreement, which is filed as Exhibit
10.1 hereto and is incorporated herein by reference.
Additional Information and Where to Find
It
The Offer for the outstanding Shares of Nimble Storage has not
yet commenced. This Current Report on Form8-K is for
informational purposes only and is neither an offer to purchase
nor a solicitation of an offer to sell shares, nor is it a
substitute for the tender offer materials that HPE and Merger Sub
will file with the SEC.At the time the tender offer is commenced,
HPE and Merger Sub will file tender offer materials on Schedule
TO, and thereafter Nimble Storage will file a
Solicitation/Recommendation Statement on Schedule 14D-9, with the
SEC with respect to the Offer.THE TENDER OFFER MATERIALS
(INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL
AND CERTAIN OTHER TENDER OFFER DOCUMENTS) AND THE
SOLICITATION/RECOMMENDATION STATEMENT WILL CONTAIN IMPORTANT
INFORMATION.HOLDERS OF SHARES OF NIMBLE STORAGE COMMON STOCK ARE
URGED TO READ THESE DOCUMENTS CAREFULLY WHEN THEY BECOME
AVAILABLE (AS EACH MAYBE AMENDED OR SUPPLEMENTED FROM TIME TO
TIME) BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT
HOLDERS OF SHARES OF NIMBLE STORAGE COMMON STOCK SHOULD CONSIDER
BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES.The
Offer to Purchase, the related Letter of Transmittal and certain
other tender offer documents, as well as the
Solicitation/Recommendation Statement, will be made available to
all holders of Shares at no expense to them. The tender offer
materials and the Solicitation/Recommendation Statement will be
made available for free at the SECs website at www.sec.gov.
Additional copies of the tender offer materials may be obtained
for free by directing a written request to Nimble Storage, Inc.,
211 River Oaks Parkway, San Jose, California 95134, Attn:
Investor Relations, or by telephone at (408)514-3475.
In addition to the Offer to Purchase, the related Letter of
Transmittal and certain other tender offer documents, as well as
the Solicitation/Recommendation Statement, HPE and Nimble Storage
file annual, quarterly and current reports and other information
with the SEC. You may read and copy any reports or other
information filed by HPE or Nimble Storage at the SEC public
reference room at 100 F Street, N.E., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on
the public reference room. HPEs and Nimble Storages filings with
the SEC are also available to the public from commercial
document-retrieval services and at the SECs website at
www.sec.gov.
Forward-Looking Statements
This document contains forward-looking statements within the
meaning of the safe harbor provisions of the Private Securities
Litigation Reform Act of 1995. Such statements involve risks,
uncertainties and assumptions. If such risks or uncertainties
materialize or such assumptions prove incorrect, the results of
Nimble Storage and its consolidated subsidiaries could differ
materially from those expressed or implied by such
forward-looking statements and assumptions. All statements other
than statements of historical fact are statements that could be
deemed forward-looking statements, including any statements
regarding the expected benefits and costs of the Offer, the
Merger and the other transactions contemplated by the Merger
Agreement; the expected timing of the completion of the Offer and
the Merger; the ability of HPE, Merger Sub and Nimble Storage to
complete the Offer and the Merger considering the various
conditions to the Offer and the Merger, some of which are outside
the parties control, including those conditions related to
regulatory approvals; any statements of expectation or belief;
and any statements of assumptions underlying any of the
foregoing. Risks, uncertainties and assumptions include the
possibility that expected benefits may not materialize as
expected; that the Offer and the Merger may not be timely
completed, if at all; that, prior to the completion of the
transaction, Nimble Storages business may not perform as expected
due to transaction-related uncertainty or other factors; that the
parties are unable to successfully implement integration
strategies; and other risks that are described in Nimble Storages
SEC reports, including but not limited to the risks described in
Nimble Storages Annual Report on Form 10-K for its fiscal year
ended January31, 2016. Nimble Storage assumes no obligation and
does not intend to update these forward-looking statements.
| Item9.01. | Financial Statements and Exhibits. |
(d) Exhibits. See Exhibit Index.
About NIMBLE STORAGE, INC. (NYSE:NMBL)
Nimble Storage, Inc. (Nimble Storage) engineers and delivers its customers with flash storage platform. The Company’s Predictive Flash platform consists of a Unified Flash Fabric that provides a single consolidation architecture with common data services across a portfolio of All Flash and Adaptive Flash arrays, and InfoSight predictive analytics with integrated support and service offerings. It enables information technology (IT) organizations to manage performance, capacity and cost for the applications running across the data center with InfoSight cloud-based management software. The Predictive Flash platform includes over six components, such as AF-Series All Flash arrays, CS-Series Adaptive Flash arrays, Unified Flash Fabric, InfoSight, SmartStack and Timeless Storage. Its operating system, NimbleOS, enables its end customers to achieve the performance and capacity requirements of mainstream enterprise applications. NIMBLE STORAGE, INC. (NYSE:NMBL) Recent Trading Information
NIMBLE STORAGE, INC. (NYSE:NMBL) closed its last trading session 00.00 at 8.60 with 1,357,200 shares trading hands.