VCA Inc. (NASDAQ:WOOF) Files An 8-K Entry into a Material Definitive Agreement
Item1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On January7, 2017, VCA Inc., a Delaware corporation (the
Company), entered into an Agreement and Plan of Merger (the
Merger Agreement) with MMI Holdings, Inc., a Delaware corporation
(Acquiror), Venice Merger Sub Inc., a Delaware corporation and
wholly owned subsidiary of Acquiror (Venice Merger Sub), and,
solely for purposes of Section9.15 of the Merger Agreement, Mars,
Incorporated, a Delaware corporation (Mars).
The Merger Agreement provides, among other things, that, subject
to the terms and conditions set forth therein, at the effective
time of the Merger (the Effective Time), (1)Venice Merger Sub
will be merged with and into the Company (the Merger), with the
Company continuing as the surviving corporation and wholly owned
subsidiary of Acquiror, and (2)each share of common stock, par
value $0.001 per share (Common Stock), of the Company issued
outstanding immediately prior to the Effective Time (other than
shares owned by the Company, any of the Companys subsidiaries,
Mars, Acquiror or Venice Merger Sub, or by stockholders who have
properly exercised and perfected appraisal rights under Delaware
law) will be cancelled and automatically converted into the right
to receive $93.00 in cash, without interest (the Merger
Consideration).
to the Merger Agreement, as of the Effective Time, (1)each option
to purchase shares of the Companys Common Stock (each, a Company
Option) that is outstanding and unexercised as of the Effective
Time (whether vested or unvested) shall be converted into the
right to receive an amount in cash equal to the product of (i)the
total number of shares of Common Stock subject to such Company
Option and (ii)the excess, if any, of the Merger Consideration
over the exercise price per share of Common Stock set forth in
such Company Option, (2)each award of restricted stock units
outstanding immediately prior to the Effective Time (whether
subject to service-based or performance-based vesting or delivery
requirements) shall fully vest as to the number of shares of
Common Stock issuable to such restricted stock unit (including,
with respect to performance-based restricted stock units, upon
attainment of any target level of performance applicable to such
restricted stock unit) and become free of any vesting, forfeiture
or other restriction and shall entitle the holder thereof to
receive an amount in cash equal to the product of (i)the number
of shares of Common Stock issuable to such restricted stock unit
and (ii)the Merger Consideration, and (3)each share of the
Companys restricted stock outstanding immediately prior to the
Effective Time shall vest and become free of any vesting,
forfeiture or other restrictions and shall entitle the holder
thereof to receive an amount in cash equal to the Merger
Consideration; provided, however, that the restricted stock
shares that were granted in 2016 and that do not vest by their
terms on or prior to December31, 2017 or, if later, the Effective
Time (the Unvested Proceeds) will vest and be paid to such
holder, together with an additional amount equal to the Unvested
Proceeds, on the first anniversary of the date of Closing (the
Closing Date) if such holder satisfied the vesting conditions for
the underlying award (determined as if the vesting date was no
earlier than the first anniversary of the Closing Date);
provided, further, that any such holder who is employed as of the
Closing Date, whose employment to the Company or any of its
subsidiaries terminates as a result of his or her death prior to
the first anniversary of the Closing Date will be treated as
having satisfied the vesting conditions for the underlying award
and such holders surviving spouse or designated beneficiary will
be entitled to payment of the Unvested Proceeds, together with an
additional amount equal to the Unvested Proceeds, no later than
the first regularly scheduled payroll date that is at least three
business days after the Company receives satisfactory proof of
the holders death.
The Board of Directors of the Company (the Board) has unanimously
approved the Merger Agreement and the transactions contemplated
thereby, including the Merger.
The closing of the Merger (the Closing) is subject to the
adoption of the Merger Agreement by the affirmative vote of the
holders of a majority of the issued and outstanding shares of
common stock of the Company (the Company Stockholder Approval).
The closing of the Merger is also subject to other customary
conditions, including (1)the absence of any order or law that
prohibits, enjoins or makes illegal the consummation of the
Merger, (2)the expiration or termination of the applicable
waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and receipt of all other
clearances or approvals under other applicable antitrust laws,
(3)the accuracy of the representations and warranties contained
in the Merger Agreement (subject to certain materiality and
material adverse effect qualifications) and compliance with the
covenants and agreements in the Merger Agreement in all material
respects by the parties to the Merger Agreement, and (4)in the
case of Acquiror and Venice Merger Sub, the absence of a material
adverse effect relating to the Company.
The closing of the Merger is not subject to a financing
condition. Acquiror and Venice Merger Sub represented to the
Company in the Merger Agreement that they will have sufficient
funds at the closing of the Merger to pay all cash amounts
required to be paid by Acquiror and Venice Merger Sub under, or
in connection with, the Merger Agreement, including to fund the
aggregate Merger Consideration. to the terms of the Merger
Agreement, Mars has provided a limited guarantee of the
covenants, agreements and other obligations of Acquiror and
Venice Merger Sub (including the obligation to fund the aggregate
Merger Consideration).
The Company has made customary representations, warranties and
covenants in the Merger Agreement, including, among others,
covenants (1)to conduct its business in the ordinary course and
consistent with past practice during the period between the
execution of the Merger Agreement and the closing of the Merger,
(2)not to engage in specified types of transactions (subject to
specified exceptions) during this period unless agreed to in
writing by Acquiror, (3)to convene and hold a meeting of its
stockholders for the purpose of obtaining the Company Stockholder
Approval and (4)subject to certain exceptions, not to change,
qualify, withhold, withdraw or modify in a manner adverse to
Acquiror the recommendation of the Board that the Companys
stockholders adopt the Merger Agreement.
The Merger Agreement also requires the Company to abide by
customary no-shop
restrictions on its ability to solicit alternative acquisition
proposals from third parties or to provide non-public information
to, and enter into discussions or negotiations with, third
parties regarding alternative acquisition proposals.
Each of the
Company, Acquiror and Venice Merger Sub has agreed to use their
respective reasonable best efforts to take all necessary action
to (1)submit all notifications and obtain all clearances,
consents, approvals, orders or authorizations of any governmental
entity under applicable antitrust laws, necessary for the
Closing, (2)provide to any governmental entity information
requested by such entity in connection with the Merger Agreement
and (3)contest and defend any objections that may be asserted by
any governmental entity to avoid entry of an order that would
prevent the Closing.
The Merger
Agreement contains certain termination rights, including the
right of the Company to terminate the Merger Agreement to accept
a superior acquisition proposal from a third party, and provides
that, upon termination of the Merger Agreement by the Company or
Acquiror under certain circumstances (including, among other
circumstances, a change of the Boards recommendation to
stockholders in favor of the Merger), a termination fee of
$275,000,000 will be payable by the Company.
Each of the
Company and Acquiror will be permitted to terminate the Merger
Agreement if the closing conditions set forth therein have not
been satisfied as of October6, 2017 (the Outside Date). However,
such Outside Date may be extended by either party to January5,
2018, and may be further extended by Acquiror to April6, 2018, in
each case, if all closing conditions (other than the closing
conditions that (x) all clearances and approvals under applicable
antitrust laws have been received and (y) there be no order by
any governmental authority, or pending litigation by any
governmental authority seeking an order, to prohibit, enjoin or
make illegal the Merger under applicable antitrust laws) have
been satisfied prior to the Outside Date (as extended, if
applicable); provided, that the closing condition that there be
no pending litigation by any governmental authority seeking an
order to prohibit, enjoin or make illegal the Merger under
applicable antitrust laws will be deemed to have been satisfied
10 business days prior to the Outside Date (as extended, if
applicable).
The foregoing
description of the Merger Agreement does not purport to be
complete and is qualified in its entirety by reference to the
Merger Agreement, which is filed as Exhibit 2.1 to this Current
Report on Form 8-K and is incorporated herein by
reference.
The Merger
Agreement has been included as an exhibit to this Current Report
on Form 8-K to provide investors with information regarding its
terms. It is not intended to provide any other factual
information about the Company. The representations, warranties
and covenants contained in the Merger Agreement were made only
for purposes of the Merger Agreement as of the specific dates
therein, were solely for the benefit of the parties to the Merger
Agreement, may be subject to limitations agreed upon by the
contracting parties, including being qualified by confidential
disclosures made for the purposes of allocating contractual risk
among the parties to the Merger Agreement instead of establishing
these matters as facts, and may be subject to standards of
materiality applicable to the contracting parties that differ
from those applicable to investors. Stockholders should not rely
on the representations, warranties and covenants or any
descriptions thereof as characterizations of the actual state of
facts or condition of the parties thereto or any of their
respective subsidiaries or affiliates. Moreover, information
concerning the subject matter of 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.
Indemnification
Agreement
On January7, 2017,
the Board approved a form of indemnification agreement (the
Indemnification Agreement) and authorized the Company to enter
into the Indemnification Agreement with each of its directors and
certain of its executive officers (each, an Indemnitee).
The
Indemnification Agreement clarifies and supplements the
indemnification rights and obligations of the Indemnitee and
Company already included in the Companys Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws (as
defined below). Under the terms of the Indemnification Agreement,
the Company, among other things, will indemnify each director and
officer for certain losses or expenses including attorneys fees,
judgments, fines and settlement amounts incurred by any such
person in any action or proceeding (other than certain
proceedings against the Company or securities laws claims),
including any action by or in the Companys right, arising out of
the persons services as the Companys director or officer or any
other company or enterprise, including the Companys subsidiaries,
to which the person provides services at the Companys
request.
The foregoing
description of the Indemnification Agreement does not purport to
be complete and is qualified in its entirety by reference to the
form of Indemnification Agreement, which is filed as Exhibit 10.1
to this Current Report on Form 8-K and is incorporated herein by
reference.
Item5.02
Departure of Directors or Certain Officers; Election of
Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.
Effective as of
January7, 2017, the Company entered into Indemnification
Agreements, which replace the indemnification agreements that
were previously in effect, with the following executive officers:
Robert L. Antin, Arthur J. Antin, Tomas W. Fuller, Neil Tauber,
Doug Drew and Josh Drake. A description of the form of
Indemnification Agreement has been provided above in Item 1.01
Entry Into Material Definitive Agreement of this Current Report
on Form 8-K.
Item5.03 |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On January7, 2017,
the Board, having determined that it was in the best interests of
the Company and its stockholders to amend and restate the bylaws
of the Company (the Bylaws), by resolution authorized, approved
and adopted amended and restated Bylaws, which became effective
on January7, 2017 (the Amended and Restated Bylaws).
The Amended and
Restated Bylaws, in addition to incorporating the two previously
adopted amendments to the Companys Third Amended and Restated
Bylaws, provide that, unless the Company consents in writing to
the selection of an alternative forum, the sole and exclusive
forum for (1)any derivative action or proceeding brought on
behalf of the Company, (2)any action asserting a claim for, or
based on, a breach of a fiduciary duty owed by any current or
former director or officer or other employee of the Company to
the Company or the Companys stockholders, including a claim
alleging the aiding and abetting of such a breach of a fiduciary
duty, (3)any action asserting a claim against the Company or any
current or former director or officer or other employee of the
Company arising to any provision of the Delaware General
Corporation Law (the DGCL) or the Companys Amended and Restated
Certificate of Incorporation or Bylaws, (4)any action asserting a
claim related to, or involving, the Company that is governed by
the internal affairs doctrine, or (5)any action asserting an
internal corporate claim as that term is defined in Section115 of
the DGCL shall be a state court located within the State of
Delaware (or, if no state court located within the State of
Delaware has jurisdiction, the federal court for the District of
Delaware), in all cases to the fullest extent permitted by law
and subject to the courts having personal jurisdiction over the
indispensable parties named as defendants.
The foregoing is a
summary of the Amended and Restated Bylaws, and such summary is
qualified in its entirety by the full text of the Amended and
Restated Bylaws, which are filed as Exhibit 3.1 to this Current
Report on Form 8-K and incorporated herein by reference.
Item8.01
Other Events.
The form of
Indemnification Agreement filed as Exhibit 10.1 to this Current
Report on Form 8-K replaces the form of Indemnification Agreement
filed as Exhibit 10.13 to the Companys registration statement on
Form S-1 filed on
August1, 2001.
Voting
Agreement
In connection with the
execution of the Merger Agreement, Acquiror has entered into a
voting agreement (the Voting Agreement) with each of Robert L.
Antin and Arthur J. Antin. The Voting Agreement provides that the
signatories thereto will generally vote their shares in favor of
the adoption of the Merger Agreement and against any alternative
proposal. The Voting Agreement terminates upon the earliest to
occur of the termination of the Merger Agreement, the mutual
written consent of the parties thereto and the receipt of the
Company Stockholder Approval. The foregoing description of the
Voting Agreement does not purport to be complete and is qualified
in its entirety by reference to the form of Voting Agreement,
which is filed as Exhibit 99.1 to this Current Report on Form 8-K
and is incorporated herein by reference.
Forward Looking
Statements
This report contains
forward-looking statements within the meaning of the securities
laws with respect to the proposed transaction between the
Company, Mars and certain subsidiaries of Mars. We have included
herein statements that constitute forward-looking statements
within the meaning of the Private Securities Litigation Reform
Act of 1995. We generally identify forward-looking statements in
this report using words like believe, intend, expect, estimate,
may, plan, should, could, forecast, looking ahead, possible,
will, project, contemplate, anticipate, predict, potential,
continue, or similar expressions. You may find some of these
statements below and elsewhere in this report. These
forward-looking statements are not historical facts and are
inherently uncertain and outside of our control. Any or all of
our forward-looking statements in this report may turn out to be
incorrect. They can be affected by inaccurate assumptions we
might make, or by known or unknown risks and uncertainties. Many
factors mentioned in our discussion in this report will be
important in determining future results. Consequently, no
forward-looking statement can be guaranteed. Actual future
results may vary materially. Many factors could cause actual
future events to differ materially from the forward-looking
statements in this report, including but not limited to: (i) the
risk that the proposed transaction may not be completed in a
timely manner or at all, which may adversely affect the Companys
business and the price of the common stock of the Company; (ii)
the failure to satisfy or obtain waivers of the conditions to the
consummation of the proposed transaction, including the adoption
of the merger agreement by the stockholders of the Company and
the receipt of certain governmental and regulatory approvals;
(iii) the occurrence of any event, change or other circumstances
that could give rise to the termination of the merger agreement;
(iv) the effect of the announcement or pendency of the proposed
transaction on the Companys business relationships, operating
results and business generally; (v) risks that the proposed
transaction disrupts current plans and operations of the Company,
including the risk of adverse reactions or changes to business
relationships with customers, suppliers and other business
partners of the Company; (vi) potential difficulties in the
hiring or retention of employees of the Company as a result of
the proposed transaction; (vii) risks related to diverting
managements attention from the Companys ongoing business
operations; (viii) potential litigation relating to the merger
agreement or the proposed transaction; (ix) unexpected costs,
charges or expenses resulting from the proposed transaction, (x)
competitive responses to the proposed transaction; and (xi)
legislative, regulatory and economic developments.
The foregoing list of factors
is not exclusive. Additional risks and uncertainties that could
affect the Companys financial and operating results are included
under the captions Risk Factors and Managements Discussion and
Analysis of Financial Condition and Results of Operations and
elsewhere in the Companys most recent Annual Report on Form 10-K
for the year ended December 31, 2015 filed with the Securities
and Exchange Commission (the SEC) on February 26, 2016, and the
Companys more recent reports filed with the SEC. The Company can
give no assurance that the conditions to the proposed transaction
will be satisfied, or that it will close within the anticipated
time period. Investors and security holders are cautioned not to
place undue reliance on these forward-looking statements, which
speak only as of the date on which statements were made. Except
as required by applicable law, the Company undertakes no
obligation to revise or update any forward-looking statement, or
to make any other forward-looking statements, whether as a result
of new information, future events or otherwise.
Additional Information
and Where to Find It
This report is being made in
respect of the proposed transaction between the Company, Mars and
certain subsidiaries of Mars. In connection with the proposed
transaction, the Company will file relevant materials with the
SEC, including a preliminary proxy statement on Schedule 14A.
Following the filing of the definitive proxy statement with the
SEC, the Company will mail the definitive proxy statement and a
proxy card to each stockholder entitled to vote at the special
meeting relating to the proposed transaction. The Company also
plans to file with the SEC other documents regarding the proposed
transaction. INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE
URGED TO CAREFULLY READ THESE MATERIALS (INCLUDING ANY AMENDMENTS
OR SUPPLEMENTS THERETO) IN THEIR ENTIRETY AND ANY OTHER RELEVANT
DOCUMENTS IN CONNECTION WITH THE PROPOSED TRANSACTION THAT THE
COMPANY WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE
PROPOSED TRANSACTION. When completed, a definitive proxy
statement and form of proxy will be mailed to the stockholders of
the Company. The definitive proxy statement, the preliminary
proxy statement and other relevant materials in connection with
the proposed transaction (when they become available), and any
other documents filed by the Company with the SEC, may be
obtained free of charge at the SECs website (http://www.sec.gov)
or through the investor relations section of the Companys website
(http://investor.vca.com).
Participants in
Solicitation
This report does not
constitute a solicitation of proxy, an offer to purchase or a
solicitation of an offer to sell any securities. The Company and
its directors, executive officers and certain employees may be
deemed to be participants in the solicitations of proxies from
the Companys stockholders with respect to the meeting of
stockholders that will be held to consider the proposed
transaction. Information about the persons who may, under the SEC
rules, be considered to be participants in the solicitation of
stockholders of the Company in connection with the proposed
transaction, is set forth in the proxy statement for the Companys
2016 Annual Meeting of Stockholders filed with the SEC on March
4, 2016. Stockholders may obtain additional information regarding
the direct and indirect interests of any such persons who may,
under the SEC rules, be considered to be participants in the
solicitation of stockholders of the Company in connection with
the proposed transaction, including the interests of the Companys
directors and executive officers in the proposed transaction,
which may be different than those of the stockholders of the
Company generally, by reading the proxy statement and other
relevant documents regarding the proposed transaction when they
become available, which the Company will file with the SEC.
Copies of these documents (when they become available) may be
obtained free of charge as described in the preceding
paragraph.
Item9.01 Financial
Statements and Exhibits
(d) Exhibits
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| 2.1 |
Agreement and Plan of Merger, dated as of January7, 2017, by and among VCA Inc., MMI Holdings, Inc., Mars, Incorporated, and Venice Merger Sub Inc. |
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| 3.1 | Fourth Amended and Restated Bylaws of VCA Inc. | |
| 10.1 | Form of Indemnification Agreement | |
| 99.1 | Form of Voting Agreement |
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The schedules and exhibits to the Merger Agreement (identified therein) have been omitted to Item 601(b)(2) of Regulation S-K. The Company hereby undertakes to furnish supplementally copies of any of the omitted schedules or exhibits upon request by the SEC. |
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.
| VCA INC. | ||
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Date: January 9,
2017
EXHIBIT INDEX
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| 2.1 |
Agreement and Plan of Merger, dated as of January7, 2017, by and among VCA Inc., MMI Holdings, Inc., Mars, Incorporated, and Venice Merger Sub Inc. |
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| 3.1 | Fourth Amended and Restated Bylaws of VCA Inc. | |
| 10.1 | Form of Indemnification Agreement | |
| 99.1 | Form of Voting Agreement |
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The schedules and exhibits to the Merger Agreement (identified therein) have been omitted |
About VCA Inc. (NASDAQ:WOOF)
VCA Inc. is an animal healthcare company. The Company operates through five segments. Its Animal Hospital segment provides veterinary services for companion animals and sells related retail and pharmaceutical products. Its Laboratory segment provides diagnostic laboratory testing services for veterinarians, both associated with its animal hospitals and those independent of the Company. Its Medical Technology segment sells digital radiography and ultrasound imaging equipment; provides education and training on the use of that equipment; provides consulting and mobile imaging services, and sells software and ancillary services. Its Vetstreet segment provides a range of services to the veterinary community, including online communications, professional education, marketing solutions and a home delivery platform. Its Camp Bow Wow business franchises a premier provider of pet services, including dog day care, overnight boarding, grooming and other ancillary services at pet care facilities. VCA Inc. (NASDAQ:WOOF) Recent Trading Information
VCA Inc. (NASDAQ:WOOF) closed its last trading session up +19.95 at 90.72 with 523,914 shares trading hands.