Explanatory Note
As previously disclosed in the Current Reports on Form 8-K filed on July 1, 2021 and October 29, 2021 by MKS Instruments, Inc., a Massachusetts corporation (the “Company” or “MKS”), on July 1, 2021, the Company entered into that certain Implementation Agreement by and between the Company and Atotech Limited, a registered public company incorporated under the laws of the Bailiwick of Jersey (“Atotech”), dated as of July 1, 2021, as amended by the Letter Agreement dated October 29, 2021 to, among other things, add Atotech Manufacturing, Inc., an indirect wholly-owned subsidiary of the Company (“Atotech Manufacturing”), as a party (the “Implementation Agreement”), pursuant to which, among other things, the parties set forth the terms pursuant to which they would implement the acquisition of Atotech by the Company and Atotech Manufacturing (the “Acquisition”).
Item 1.01 Entry into a Material Definitive Agreement.
Amendment to Implementation Agreement
On April 1, 2022, the Company, Atotech and Atotech Manufacturing entered into an amendment to the Implementation Agreement (the “Amendment”), providing for additional time for the satisfaction of certain closing conditions set forth in the Implementation Agreement, including approval of the Acquisition by the Royal Court of Jersey and receipt of certain antitrust regulatory approvals (“Clearances”), such that the Long Stop Date (as defined in the Implementation Agreement) shall be extended from March 31, 2022 to September 30, 2022.
In addition, the Amendment amends certain provisions related to obtaining the Clearances, the timing of the closing date and the obligations of the parties with respect to the debt financing contemplated in connection with the Acquisition and provides for the automatic termination of the Implementation Agreement if the closing has not occurred by the Long Stop Date.
The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, a copy of which is being filed as Exhibit 2.1 hereto and is incorporated herein by reference.
Commitment Letter
In connection with the Amendment, the Company entered into a new debt commitment letter (the “Commitment Letter”), dated as of April 1, 2022, with JPMorgan Chase Bank, N.A. (“JPMorgan”) and Barclays Bank PLC (“Barclays” and, together with JPMorgan, the “Commitment Parties”), pursuant to which, among other things, the Commitment Parties have committed to provide the Company with (i) a new senior secured term loan B credit facility consisting of a $4.25 billion U.S. Dollar term loan B and (ii) a new senior secured term loan A credit facility consisting of a $1 billion U.S. Dollar term loan A, in each case to finance, in part, the Acquisition. In addition, the Commitment Parties have committed under the Commitment Letter to provide the Company with a new senior secured revolving credit facility with aggregate total commitments of $500 million, which may be used to finance, in part, the Acquisition, the payment of fees and expenses in connection with the Acquisition, for working capital and for general corporate purposes. The new senior secured term loan credit facilities and new senior secured revolving credit facility would replace the Company’s existing term loan credit facility and revolving credit facility, respectively. The Commitment Parties’ obligations under the Commitment Letter are subject to certain customary conditions, including, without limitation, the consummation of the Acquisition in accordance with the Implementation Agreement and the accuracy of specified representations and warranties of the Company.
The foregoing description of the Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Commitment Letter, a copy of which is being filed as Exhibit 10.1 hereto and is incorporated herein by reference.
