The Company has agreed to customary “no-shop” restrictions on its ability to solicit alternative acquisition proposals from third parties and engage in discussions or negotiations with third parties regarding alternative acquisition proposals. Notwithstanding these restrictions, the Company may under certain circumstances and subject to the terms and conditions set forth in the Merger Agreement, provide information to and participate in discussions or negotiations with third parties with respect to alternative acquisition proposals.
The consummation of the Merger is subject to certain customary closing conditions and the transactions contemplated by the Land Purchase Agreement (as defined below) and customary termination rights in favor of the Company or Parent. Upon a termination of the Merger Agreement, (i) under certain circumstances, including in order to enter into a superior proposal, the Company will be required to pay a termination fee to Parent of $260,000,000 and (ii) under certain circumstances, including due to a breach of Parent’s obligations under the Merger Agreement or Parent’s failure to consummate the Mergers when required by the Merger Agreement, Parent will be required to pay a termination fee to the Company of $693,000,000.
The foregoing description of the Merger Agreement is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, which is filed as Exhibit 2.1 hereto and incorporated herein by reference. The Merger Agreement has been attached as an exhibit to provide shareholders with information regarding its terms. It is not intended to provide any other factual or financial information about the Company, Parent or any of their respective affiliates or businesses. The representations, warranties, covenants and agreements contained in the Merger Agreement were made only for the purposes of such agreement and as of specified dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. The representations and warranties have been qualified by confidential disclosures made for the purposes of allocating contractual risk between 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. Shareholders should not rely on the representations, warranties, covenants and agreements contained in the Merger Agreement or any descriptions thereof as characterizations of the actual state of facts or condition of the Company, Parent or any of their respective affiliates or businesses. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Company, Parent and their respective affiliates and the transactions contemplated by the Merger Agreement that will be contained in or attached as an annex to the proxy statement that the Company will file in connection with the transactions contemplated by the Merger Agreement, as well as in the other filings that the Company will make with the U.S. Securities and Exchange Commission (the “SEC”).
Tax Receivable Agreement Amendment
Concurrent with the execution of the Merger Agreement, the Company, Company Ltd. and members of Company Ltd. as of the date of the Tax Receivable Agreement, dated as of October 5, 2017, by and among the Company, Company Ltd. and the members of Company Ltd. party thereto (the “TRA”) other than the Company executed Tax Receivable Agreement Amendment No. 1 (the “TRA Amendment”), which provides that in exchange for the termination of the TRA and all rights associated therewith, each member party thereto is entitled to receive a payment in cash from the Corporation of $0.37 per Company Ltd. Common Unit.
The foregoing description of the TRA Amendment is only a summary, does not purport to be complete and is qualified in its entirety by reference to the full text of the TRA Amendment, which is filed as Exhibit 10.1 hereto and incorporated herein by reference.
Voting and Support Agreements
Concurrent with the execution of the Merger Agreement, Parent or the Company entered into Voting and Support Agreements (each, a “Voting and Support Agreement” and collectively, the “Voting and Support Agreements”) with certain stockholders of the Company providing that, among other things, subject to the terms and conditions set forth therein, such stockholder will support the Mergers and the transactions contemplated thereby, including by voting to adopt the Merger Agreement.