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Subsequent events | 12 Months Ended
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Dec. 31, 2020
Subsequent events. |
Subsequent events | 22. Subsequent events Equity Incentive Plan In January 2021, we granted approximately 295,000 service based RSUs to certain executive officers that vest periodically over three years of continuous service and approximately 295,000 performance based RSUs (assuming at-target achievement) that cliff-vest upon achievement of performance objectives through December 31, 2024. We also granted approximately 336,000 service based RSUs to non-executive personnel that will vest quarterly over three years of continuous service. The grants were made pursuant to our 2011 Plan. Merger On February 26, 2021, the Company entered into the Merger Agreement with Parent and Merger Sub, providing for the merger of Merger Sub with and into the Company, with the Company surviving the Merger as a wholly owned subsidiary of Parent. Capitalized terms not otherwise defined have the meaning set forth in the Merger Agreement. The Merger Agreement and the transactions contemplated thereby were approved unanimously by the Company’s board of directors. Under the terms of the Merger Agreement, at the Effective Time of the Merger, each share of common stock issued and outstanding as of immediately prior to the Effective Time (other than dissenting shares, shares held in the treasury of the Company or shares owned by Parent or Merger Sub) will be cancelled and automatically converted into the right to receive cash in an amount equal to $14.00, net of applicable withholding taxes and without interest thereon (the “Per Share Merger Consideration”). Company stock options will generally be cancelled at the Effective Time and converted into the right to receive an amount equal to (i) the excess, if any, of the Per Share Merger Consideration over the applicable exercise price multiplied by (ii) the number of shares of common stock subject to such stock option (less deductions and applicable withholdings). RSUs (including any RSUs which are subject to performance conditions that have not been satisfied at the Effective Time, which shall be deemed satisfied in accordance with the terms of the applicable stock plan and award agreement) will generally be cancelled at the Effective Time and converted into the right to receive an amount equal to (i) the Per Share Merger Consideration multiplied by (ii) the number of shares of common stock subject to such RSU (less applicable deductions and withholdings). Parent and Merger Sub have secured committed financing, which are subject to customary terms and conditions, consisting of a combination of equity financing from Digital Colony Partners II, LP and debt financing from Truist Bank and Truist Securities, Inc., The Toronto-Dominion Bank, New York Branch, TD Securities (USA) LLC and CIT Bank, N.A., the aggregate proceeds of which will be sufficient for Parent and Merger Sub to pay the aggregate merger consideration and all related fees and expenses. Parent and Merger Sub have committed to use their reasonable best efforts to obtain the financing on the terms and conditions described in the commitment letters entered into with such financing partners. The consummation of the Merger is subject to the satisfaction or waiver of customary closing conditions, including, without limitation, the absence of governmental orders resulting, directly or indirectly, in enjoining or otherwise prohibiting or making illegal the consummation of the Merger, the affirmative vote of the holders of a majority of the voting power of the outstanding shares of the Company’s common stock entitled to vote on the adoption of the Merger Agreement, and expiration or termination of any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The Company has made customary representations and warranties in the Merger Agreement and has agreed to customary covenants regarding the operation of the business of the Company and its Subsidiaries prior to the Effective Time. Following a 25-business day Go-Shop Period, the Company is also subject to customary restrictions on its ability to solicit alternative acquisition proposals from third parties and to provide non-public information to, and participate in discussions and engage in negotiations with, third parties regarding alternative acquisition proposals, with customary exceptions for Superior Proposals. The Merger Agreement contains certain termination rights for the Company and Parent. Upon termination of the Merger Agreement under specified circumstances, the Company will be required to pay Parent a termination fee of $13,100 if the Merger Agreement is terminated by the Company during the Go-Shop Period in order to enter into an agreement for a Superior Proposal and $19,600 in the event of other specified circumstances. Such circumstances include where the Merger Agreement is terminated (i) in connection with the Company entering into an agreement for a Superior Proposal after the Go-Shop Period, (ii) due to the Company Board’s change or withdrawal of its recommendation in favor of the Merger, or (iii) due to the Company willfully and materially breaching its obligations regarding solicitation of alternative acquisition proposals. Additionally, the Company is obligated to pay the termination fee if (i)(A) either party terminates because the Merger has not been consummated by the Outside Date (defined below) or due to the failure to obtain the required Company stockholder adoption of the Merger Agreement, or (B) Parent terminates due to the Company breaching its representations, warranties or covenants in a manner that would cause the related closing conditions to not be met, (ii) the Company receives an Acquisition Proposal to acquire at least 50.1% of the Company’s stock or assets that is not withdrawn prior to such termination, and (iii) the Company enters into a definitive agreement for, or completes, such an Acquisition Proposal within one year of termination. The Merger Agreement requires the Company to convene a special meeting of stockholders for purposes of obtaining approval of the adoption of the Merger Agreement and to prepare and file with the Securities and Exchange Commission (the “SEC”) a proxy statement with respect to such meeting. A reimbursement of certain of Parent’s expenses, up to a maximum of $2,500, will also be payable if the Merger Agreement is terminated because the Company’s stockholders did not vote to adopt the Merger Agreement. Upon termination of the Merger Agreement under other specified circumstances, Parent will be required to pay the Company a termination fee of $32,700. The termination fee by Parent will become payable if Parent fails to consummate the Merger after the applicable closing conditions are met. The Merger Agreement also provides that either party may specifically enforce the other party’s obligations under the Merger Agreement, provided that the Company may only cause Parent to close the transaction if the applicable conditions are satisfied and the proceeds of the debt financing are available. In addition to the foregoing termination rights, and subject to certain limitations, the Company or Parent may terminate the Merger Agreement if the Merger is not consummated by August 26, 2021 (the “Outside Date”). The representations, warranties and covenants of the Company contained in the Merger Agreement have been made solely for the benefit of Parent and Merger Sub. In addition, such representations, warranties and covenants (i) have been made only for purposes of the Merger Agreement, (ii) have been qualified by (a) subject to certain terms and conditions, matters specifically disclosed in the Company’s filings with the SEC prior to the date of the Merger Agreement and (b) confidential disclosures made to Parent and Merger Sub in the disclosure letter delivered in connection with the Merger Agreement, (iii) are subject to materiality qualifications contained in the Merger Agreement which may differ from what may be viewed as material by investors, (iv) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (v) have been included in the Merger Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters as fact. Accordingly, the Merger Agreement is included with this filing only to provide investors with information regarding the terms of the Merger Agreement, and not to provide investors with any other factual information regarding the Company or its business. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or any of its subsidiaries or affiliates. 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 foregoing descriptions of the Merger Agreement and the transactions contemplated thereby do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the Merger Agreement, which is incorporated by reference as Exhibit 2.1 to the Annual Report on Form 10-K of which these financial statements form a part, and the terms of which are incorporated herein by reference. Bylaw Amendment On February 26, 2021, the Board of Directors of the Company approved and adopted an amendment to the Amended and Restated Bylaws of the Company (the “Bylaw Amendment”), which became effective immediately. The Bylaw Amendment added a new Section 7.9 to Article VII that designates the state and federal courts located within the state of Delaware as the sole and exclusive forum for certain legal action, unless the Company consents in writing to the selection of an alternative forum. The foregoing description of the Bylaw Amendment is only a summary, does not purport to be complete, and is qualified in its entirety by reference to the Bylaw Amendment, which is incorporated by reference as Exhibit 3.1 to the Annual Report on Form 10-K of which these financial statements form a part, and the terms of which are incorporated herein by reference.

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- Definition The entire disclosure for significant events or transactions that occurred after the balance sheet date through the date the financial statements were issued or the date the financial statements were available to be issued. Examples include: the sale of a capital stock issue, purchase of a business, settlement of litigation, catastrophic loss, significant foreign exchange rate changes, loans to insiders or affiliates, and transactions not in the ordinary course of business. + References Reference 1: http://www.xbrl.org/2003/role/disclosureRef -Publisher FASB -Name Accounting Standards Codification -Topic 855 -URI http://asc.fasb.org/topic&trid=2122774 Reference 2: http://www.xbrl.org/2003/role/disclosureRef -Publisher FASB -Name Accounting Standards Codification -Topic 855 -SubTopic 10 -Section 50 -Paragraph 2 -Subparagraph (a) -URI http://asc.fasb.org/extlink&oid=6842918&loc=SL6314017-165662 + Details
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