Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
The Merger Agreement was approved by the board of directors of the Company (the "Board"), acting upon the unanimous recommendation of a special committee composed of independent directors of the Board, and the board of directors of Parent.
On the terms and subject to the conditions set forth in the Merger Agreement, at
the effective time of the Mergers (the "Effective Time"), each share of Class A
common stock, par value
Each option to purchase shares of Company Common Stock (a "Company Stock Option") outstanding immediately prior to the Effective Time shall be canceled and converted into a right to receive a cash payment equal to the product of (i) the number of shares of Company Common Stock subject to such Company Stock Option immediately prior to the Effective Time and (ii) the excess of (A) the Merger Consideration Value (as defined below) (or, if such Company Stock Option is subject to a cap on the value received upon the exercise of the Company Stock Options, the amount of such cap, if less than the Merger Consideration Value) over (B) the per share exercise price of such Company Stock Option, except that the cash payment shall be reduced by applicable withholding taxes and any Company Stock Option with a per share exercise price that is equal to or greater than the Merger Consideration Value will be canceled for no consideration. The "Merger Consideration Value" is defined as the product of the Exchange Ratio and the closing price of Parent's common stock on the trading day immediately prior to the date on which the Effective Time occurs. Each share of Company Common Stock subject to forfeiture conditions (each, a "Company Restricted Share") granted prior to the date of the Merger Agreement (other than those covered by an agreement between Parent and the applicable holder pursuant to which the holder has agreed to different treatment) and each Common Unit subject to forfeiture conditions (each, a "Restricted Unit") that is outstanding immediately prior to the Effective Time shall vest in full as of immediately prior to the Effective Time and shall be treated the same as other shares of Company Common Stock or Common Units, as applicable. Each Company Restricted Share granted on or following the date of the Merger Agreement and outstanding immediately prior to the Effective Time shall, as of the Effective Time, be canceled and substituted with an award of Parent's common stock subject to forfeiture conditions, generally on the same vesting terms as the underlying Company Restricted Share, with respect to a number of shares equal to the product of (i) the number of shares of Company Common Stock covered by such Company Restricted Share and (ii) the Exchange Ratio.
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Concurrently with the execution of the Merger Agreement and as a condition to
GS's entry into the Merger Agreement, the Company's chief executive officer, Mr.
The Merger Agreement contains customary representations and warranties of the Company and Parent relating to their respective businesses and public filings, in each case generally subject to a materiality qualifier. Additionally, the Merger Agreement provides for customary pre-closing covenants of the Company, including (i) covenants relating to conducting its business in the ordinary course consistent with past practice and refraining from taking certain types of actions without Parent's consent and (ii) certain restrictions on the Company's ability to solicit alternative acquisition proposals from third parties, and/or to provide information to third parties and to engage in discussions with third parties, in each case, in connection with alternative acquisition proposals, subject to certain exceptions.
The consummation of the Mergers is subject to certain closing conditions,
including (i) the approval of the Company's stockholders (the "Company
Stockholder Approval"), (ii) the approval of Holdings' unitholders (which
approval has already been obtained), (iii) the effectiveness of the registration
statement to be filed by Parent with the
Pursuant to the terms of the Merger Agreement, each of the Company and Parent is
required to use reasonable best efforts to consummate the Merger, provided that
Parent shall not be required to take any action that would reasonably be
expected to have a material adverse effect on Parent or
Prior to obtaining the Company Stockholder Approval, the Board may, in certain limited circumstances, withdraw or modify its recommendation that the Company's stockholders adopt the Merger Agreement or recommend or otherwise declare advisable any Superior Proposal (as defined in the Merger Agreement) (an "Adverse Recommendation Change"), subject to complying with notice and other specified conditions, including giving Parent the opportunity to propose revisions to the terms of the transaction contemplated by the Merger Agreement during a match right period. Notwithstanding an Adverse Recommendation Change by the Board, unless Parent terminates the Merger Agreement, the Company is still required to convene the meeting of its stockholders.
The Merger Agreement also provides for certain mutual termination rights of Parent and the Company, including the right of either party to terminate the . . .
Item 8.01 Other Events.
On
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number Description 2.1 Agreement and Plan of Merger, dated as ofSeptember 14, 2021 , by and among The Goldman Sachs Group, Inc.,Goldman Sachs Bank USA ,GreenSky, Inc. andGreenSky Holdings * 99.1 Press Release, datedSeptember 15, 2021 , jointly issued by The Goldman Sachs Group, Inc. andGreenSky, Inc. Cover Page Interactive Data File (embedded within the Inline XBRL 104 document)
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The registrant agrees to furnish supplementally to the
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Forward-Looking Statements
This communication contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 regarding the Company and
Parent including, but not limited to, statements related to the proposed
acquisition of the Company and the anticipated timing, results and benefits
thereof, statements regarding the expectations and beliefs of the board of
directors of the Company, Company management, the board of directors of Parent
or Parent management, and other statements that are not historical facts.
Readers can generally identify forward-looking statements by the use of
forward-looking terminology such as "outlook," "potential," "continue," "may,"
"seek," "approximately," "predict," "believe," "expect," "plan," "intend,"
"poised," "estimate" or "anticipate" and similar expressions or the negative
versions of these words or comparable words, as well as future or conditional
verbs such as "will," "should," "would," "likely" and "could". These
forward-looking statements are based on the Company's and Parent's current
plans, objectives, estimates, expectations and intentions and inherently involve
significant risks and uncertainties, many of which are beyond the Company's or
Parent's control. Actual results and the timing of events could differ
materially from those anticipated in such forward-looking statements as a result
of these risks and uncertainties, which include, without limitation, risks and
uncertainties associated with the Company's and Parent's ability to complete the
proposed acquisition on the proposed terms or on the anticipated timeline, or at
all, including: risks and uncertainties related to securing the necessary
regulatory and shareholder approvals and satisfaction of other closing
conditions to consummate the proposed acquisition; the occurrence of any event,
change or other circumstance that could give rise to the termination of the
merger agreement relating to the proposed acquisition; risks related to
diverting the attention of Company and/or Parent management from ongoing
business operations; failure to realize the expected benefits of the proposed
acquisition; significant transaction costs and/or unknown or inestimable
liabilities; the risk of litigation in connection with the proposed acquisition,
including resulting expense or delay; the risk that the Company's business will
not be integrated successfully or that such integration may be more difficult,
time-consuming or costly than expected; risks related to future opportunities
and plans for the Company's business, including the uncertainty of financial
performance and results of Parent following completion of the proposed
acquisition; disruption from the proposed acquisition, making it more difficult
to conduct business as usual or for the Company to maintain relationships with
bank partners, other funding sources or purchasers of receivables related to, or
economic participations in, loans originated by the Company's bank partners,
merchants, sponsors of merchants, consumers, suppliers, distributors, partners,
employees, regulators or other third parties; effects relating to the
announcement of the proposed acquisition or any further announcements or the
consummation of the proposed acquisition on the market price of Company common
stock or Parent common stock; the possibility that, if Parent does not achieve
the perceived benefits of the proposed acquisition as rapidly or to the extent
anticipated by financial analysts or investors or at all, the market price of
Parent common stock could decline; the definitive documentation in respect of
the backstop participation purchase facility is subject to negotiation between
the parties; regulatory initiatives and changes in tax laws; market volatility
and changes in economic conditions; and other risks and uncertainties affecting
the Company and Parent, including those described from time to time under the
caption "Risk Factors" and elsewhere in the Company's and Parent's
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Participants in the Solicitation
The Company, Parent and their respective directors and certain of their
executive officers and other employees may be deemed to be participants in the
solicitation of proxies from the Company's stockholders in connection with the
proposed acquisition. Information about the Company's directors and executive
officers is set forth in the Company's Annual Report on Form 10-K for the year
ended
Additional Information and Where to Find It
In connection with the proposed acquisition, Parent intends to file with the
Investors and security holders will be able to obtain copies of these materials
(if and when they are available) and other documents containing important
information about the Company, Parent and the proposed acquisition, once such
documents are filed with the
No Offer or Solicitation
This communication is not intended to and shall not constitute an offer to buy
or sell or the solicitation of an offer to buy or sell any securities, or a
solicitation of any vote or approval, nor shall there be any offer, solicitation
or sale of securities in any jurisdiction in which such offer, solicitation or
sale would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. No offer of securities shall be made
in
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