The merger agreement limits Provident’s and Lakeland’s respective abilities to pursue alternatives to the merger and may discourage other companies from trying to acquire Provident or Lakeland.
The merger agreement contains “no shop” covenants that restrict each of Provident’s and Lakeland’s ability to, directly or indirectly, among other things, initiate, solicit, knowingly encourage or knowingly facilitate, inquiries or proposals with respect to, or, subject to certain exceptions generally related to the exercise of fiduciary duties by Provident’s and Lakeland’s respective board of directors, engage in any negotiations concerning, or provide any confidential or non-public information or data relating to, any alternative acquisition proposals. These provisions, which include a $50 million termination fee payable under certain circumstances, may discourage a potential third-party acquirer that might have an interest in acquiring all or a significant part of Provident or Lakeland from considering or proposing that acquisition.
The shares of Provident common stock to be received by Lakeland shareholders as a result of the merger will have different rights from the shares of Lakeland common stock.
In the merger, Lakeland shareholders will become Provident stockholders and their rights as stockholders will be governed by Delaware law and the governing documents of the combined company following the merger. The rights associated with Provident common stock are different from the rights associated with Lakeland common stock.
Provident stockholders and Lakeland shareholders will have reduced ownership and voting interest in the combined company after the consummation of the merger and will exercise less influence over management.
Provident stockholders and Lakeland shareholders currently have the right to vote in the election of the board of directors and on other matters affecting Provident and Lakeland, respectively. When the merger is completed, each Provident stockholder and each Lakeland shareholder will become a holder of common stock of the combined company, with a percentage ownership of the combined company that is smaller than the holder’s percentage ownership of either Provident or Lakeland individually, as applicable, prior to the consummation of the merger. Because of this, Lakeland shareholders may have less influence on the management and policies of the combined company than they now have on the management and policies of Lakeland, and Provident stockholders may have less influence on the management and policies of the combined company than they now have on the management and policies of Provident.
Issuance of shares of Provident common stock in connection with the merger may adversely affect the market price of Provident common stock.
In connection with the payment of the merger consideration, Provident expects to issue approximately 54.5 million shares of Provident common stock to Lakeland shareholders. The issuance of these new shares of Provident common stock may result in fluctuations in the market price of Provident common stock, including a stock price decrease.
Provident stockholders and Lakeland shareholders will not have appraisal rights or dissenters’ rights in the merger.
Appraisal rights (also known as dissenters’ rights) are statutory rights that, if applicable under law, enable stockholders or shareholders to dissent from an extraordinary transaction, such as a merger, and to demand that the corporation pay the fair value for their shares as determined by a court in a judicial proceeding instead of receiving the consideration offered to stockholders in connection with the extraordinary transaction.
Under Section 262 of the DGCL, Provident stockholders will not be entitled to appraisal rights in connection with the merger. If the merger is completed, Provident stockholders will not receive any consideration, and their shares of Provident common stock will remain outstanding and will constitute shares of Provident following the completion of the merger. Accordingly, Provident stockholders are not entitled to any appraisal rights in connection with the merger.
Under Title 14A, Chapter 11 of the NJBCA, shareholders have the right to dissent from any plan of merger or consolidation to which the corporation is a party, and to demand payment for the fair value of their shares. However, unless the corporation’s certificate of incorporation otherwise provides, dissenters’ rights of appraisal do not apply to any plan of merger or consolidation with respect to shares (i) of a class or series which is listed on a national securities exchange or is held of record by not less than one thousand (1,000) holders or (ii) for which, pursuant to the plan of merger or consolidation, such shareholder will receive (a) cash, (b) shares, obligations or other securities