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CUSIP No. 278878103
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SCHEDULE 13D
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PAGE
6
OF 9 PAGES
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The Voting Agreements, including the irrevocable proxy granted thereunder, will terminate upon the earliest
of: (i) the date upon which the Merger Agreement is validly terminated in accordance with its terms, including in the event the Merger Agreement is terminated by the Issuer prior to receipt of the Issuer Stockholder Approval in order to
enter into a definitive agreement with respect to a Superior Offer (as defined in the Merger Agreement); (ii) the date upon which the Merger becomes effective; (iii) the date upon which the Reporting Person and the applicable Supporting
Stockholder agree to terminate the Voting Agreement in writing; and (iv) the date on which any Adverse Amendment (as defined in the Voting Agreements) becomes effective for which the prior written approval of such Supporting Stockholder was not
obtained.
In addition, in the event the board of directors of the Issuer withdraws its recommendation in favor of the Merger, but the Issuer does not (or
does not have the right to) terminate the Merger Agreement, the Voting Agreement Shares to which the Voting Agreement applies will automatically be adjusted so that the Voting Agreement will instead only apply to a portion of the Voting Agreement
Shares as would have 70% of the aggregate voting power attributable to all of such Voting Agreement Shares.
The foregoing description of the Voting
Agreements does not purport to be complete and is qualified in its entirety by reference to the full text of the Voting Agreements, a form of which is filed as Exhibit 10.1 and incorporated herein by reference.
(c) Not applicable.
(d) Pursuant to the
terms of the Merger Agreement, the directors and officers of Merger Sub immediately prior to the Effective Time will become the directors and officers of the Surviving Corporation immediately after the Effective Time, unless otherwise determined by
the Reporting Person prior to the Effective Time.
(e) Under the terms of the Merger Agreement, the Issuer may not, except (w) as may be
required by applicable law, (x) with the prior written consent of the Reporting Person (which consent shall not be unreasonably withheld, conditioned or delayed), (y) as expressly required by the Merger Agreement or (z) as set forth
in the confidential disclosure schedules delivered by the Issuer to the Reporting Person in connection with the execution of the Merger Agreement, (i) declare, accrue, set aside or pay any dividend or make any other distribution in respect of
any shares of capital stock (except for the Special Dividend), or repurchase, redeem or otherwise reacquire any shares of capital stock or other securities; or (ii) sell, issue, grant or authorize the sale, issuance or grant of: (A) any
capital stock or other security; (B) any option, stock appreciation right, restricted stock unit, deferred stock unit, market stock unit, performance stock unit, restricted stock award or other equity-based compensation award (whether payable
in cash, stock or otherwise), call, warrant or right to acquire any capital stock or other security; or (C) any instrument convertible into or exchangeable for any capital stock or other security.
(f) If the Merger is consummated, the Issuer will become an indirect wholly owned subsidiary of the Reporting Person.
(g) Pursuant to the terms of the Merger Agreement, at the Effective Time, the certificate of incorporation of the Surviving Corporation shall be
amended and restated as of the Effective Time to conform to Exhibit C to the Merger Agreement and the bylaws of the Surviving Corporation shall be amended and restated as of the Effective Time to conform to the bylaws of Merger Sub as in
effect immediately prior to the Effective Time.
(h) (i) Pursuant to the terms of the Merger Agreement, prior to the Effective Time, the
Issuer shall cooperate with the Reporting Person and use its reasonable best efforts to take, or cause to be taken, all actions, and do or cause to be done all things, reasonably necessary, proper or advisable on its part under applicable law to
enable the de-listing by the Surviving Corporation of the Class A Common Stock from the NASDAQ and the deregistration of the Class A Common Stock under the Act as promptly as practicable after the
Effective Time.
(j) Except as set forth in this Schedule 13D or as contemplated by the Merger Agreement and the Voting Agreements, neither the
Reporting Person nor, to the knowledge of the Reporting Person, any of the persons listed on Schedule A hereto has any present plans or proposals which relate to, or may result in, any of the matters described in Item 4(a) (j) of
Schedule 13D (although the Reporting Person reserves the right to develop such plans).