The obligation of the parties to consummate the Merger is subject to various conditions,
including: (i) adoption of the Merger Agreement by a majority of the voting power of the outstanding shares of the Common Stock; (ii) the absence of any law, order, judgment, decree, injunction or ruling prohibiting the consummation of the
Merger; (iii) the accuracy of the representations and warranties of the parties (subject to customary materiality qualifiers); and (iv) each partys performance in all material respects of its covenants and obligations contained in
the Merger Agreement. The Merger Agreement does not contain a financing condition. Because the Investor holds approximately 76.3% of the outstanding shares of Common Stock, the Investor has the ability to provide the required stockholder
approval for the Merger at a meeting called therefor.
The Merger Agreement contains certain termination rights for the Company and
Parent, including the right of either party to terminate the Merger Agreement if the Merger is not consummated on or before April 29, 2024. The Merger Agreement further provides that the Company may be required to pay Parent, under certain
specified circumstances, a termination fee of $1,063,058.00. In addition, an investment fund affiliated with Patient Square Capital has agreed to guarantee, up to a cap, any damages that may be finally and
non-appealably determined to be owed by Parent in the event of a willful and material breach of the Merger Agreement prior to the termination thereof.
Under the Merger Agreement, the Issuer is subject to a customary no-shop provision that restricts the Issuer and its
representatives from soliciting Acquisition Proposals (as defined in the Merger Agreement) from third parties or providing information to or participating in any discussions or negotiations with third parties regarding Acquisition Proposals.
However, the no-shop provision allows the Issuer prior to the receipt of the required stockholder approval, under certain circumstances and in compliance with certain obligations set forth in the Merger Agreement, to provide non-public
information and engage in discussions and negotiations with respect to an unsolicited Acquisition Proposal that would reasonably be expected to lead to a Superior Proposal (as defined in the Merger Agreement).
Voting and Support Agreement
In
connection with the execution of the Merger Agreement, the Investor and the Issuer have entered into a voting and support agreement, dated as of the date of the Merger Agreement (the Voting and Support Agreement). On the terms and
conditions set forth in the Voting and Support Agreement, the Investor has agreed to vote all of the Common Stock over which it has voting power (representing in the aggregate approximately 76.3% of the Companys total outstanding voting power
as of October 29, 2023) for the adoption of the Merger Agreement. The Voting and Support Agreement, and Investors obligations to vote in favor of the adoption of the Merger Agreement, will terminate automatically upon the termination of
the Merger Agreement in accordance with its terms.
Equity Commitment Letter
In connection with the Merger Agreement, Parent delivered to the Issuer an executed equity commitment letter (the Equity Commitment
Letter) from Patient Square Equity Partners, LP (the Sponsor) and countersigned by Parent, pursuant to which the Sponsor has agreed to provide, on the terms and subject to the conditions set forth in the Equity
Commitment Letter, up to $31 million in equity financing to Parent for the purposes of, inter alia, satisfying Parents payment obligations at the closing of the merger. It is expected that the proceeds of such equity financing will
be sufficient to consummate the Merger.
Item 5. Interest in Securities of the Issuer
This Item 5 is hereby amended and restated as below.
The following information with respect to the ownership of shares of Common Stock by the Reporting Persons filing this Schedule 13D is
provided as of October 30, 2023:
(a) (b) As of the date hereof, PSC Echo, LP holds 15,821,299 shares of Common Stock, representing
approximately 76.3% of the outstanding shares of Common Stock. PSC Echo GP, LLC is the general partner of PSC Echo, LP and may be deemed to beneficially own the shares of Common Stock held by PSC Echo, LP. Voting and investment decisions with
respect to the shares of Common Stock held by PSC Echo, LP are made by the management committee of PSC Echo GP, LLC.
(c) The information set forth in
Items 3 and 4 above is hereby incorporated by reference into this Item 5(c), as applicable.
(d) Certain limited partners of the Investor have the right
to participate in the receipt of dividends from, or proceeds from the sale of, the shares of Common Stock beneficially held for the account of the Investor in accordance with their ownership interests in the Investor.
(e) Not applicable.