UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of report (Date of earliest event reported): January 16, 2017
LifeLock, Inc.
(Exact name of registrant as specified in its charter)
| Delaware | 001-35671 | 56-2508977 | ||
|
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer
Identification No.) |
60 East Rio Salado Parkway, Suite 400
Tempe, Arizona 85281
(Address of principal executive offices, including zip code)
(480) 682-5100
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 Entry into a Material Definitive Agreement.
As previously disclosed, on November 20, 2016, the LifeLock, Inc., which we refer to as “LifeLock” or the “Company,” Symantec Corporation, which we refer to as “Symantec,” and L1116 Merger Sub, Inc., a wholly-owned subsidiary of Symantec, which we refer to as “Acquisition Sub,” entered into an Agreement and Plan of Merger, which we refer to as the “Merger Agreement.” Upon the terms and subject to the conditions set forth in the Merger Agreement, Acquisition Sub will merge with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of Symantec, which we refer to as the “Merger.”
On January 16, 2017, LifeLock entered into Amendment No. 1 to the Merger Agreement, which we refer to as the “Amendment.”
On December 21, 2016, Symantec requested that LifeLock agree to accommodate a delay to the closing of the merger as specified in the Merger Agreement, which we refer to as the “Closing,” until early February 2017, in order to facilitate Symantec’s debt financing for the merger. On December 22, 2016, the Strategic Committee of LifeLock’s Board of Directors, which we refer to as the “Strategic Committee,” reviewed Symantec’s request to delay the Closing and various considerations and alternatives with respect to accommodating Symantec’s request. The Strategic Committee determined to hold the special meeting on January 26, 2017 as planned. The Strategic Committee also determined that, in light of the risks presented of Symantec not being willing or able to close when required under the terms of the Merger Agreement if it had not yet obtained the debt financing for the merger, it would authorize LifeLock to discuss with Symantec an amendment to the Merger Agreement to address such risks. The Strategic Committee also determined that if the parties could reach an understanding on the terms of an amendment to the Merger Agreement, then it would bring the amendment to the LifeLock Board of Directors for consideration and approval. The proposed amendment would provide that Symantec would have the ability to extend the Closing for a limited period of time after January 31, 2017, even if all the conditions to closing were satisfied earlier, so long as Symantec agreed that the conditions to closing related to LifeLock would be deemed to be satisfied after the date the Closing would have otherwise occurred.
In late December 2016 and early January 2017, Symantec and LifeLock negotiated the terms of the proposed amendment to the Merger Agreement. On January 13, 2017, in light of the risks presented of Symantec not closing when required under the terms of the Merger Agreement if it had not yet obtained the debt financing for the merger, and Symantec’s willingness to deem the conditions to closing related to LifeLock to be satisfied after the date the Closing would have otherwise occurred, LifeLock’s Board of Directors authorized the entry into the Amendment.
The Amendment provides Symantec the right, in certain circumstances, to extend the date of the Closing to the later of (x) February 9, 2017 and (y) the second business day after the satisfaction or waiver of the closing conditions set forth in Section 7.1 and Section 7.3 of the Merger Agreement. Specifically, if on or after January 31, 2017 and prior to February 9, 2017, the conditions set forth in Section 7.1 and Section 7.2 are satisfied, including that LifeLock has delivered the officer’s certificate regarding its satisfaction of certain of its closing conditions in the form attached to the Amendment, and has fulfilled its obligation to provide certain financial information that LifeLock is required to provide Symantec in connection with its debt financing efforts pursuant to the terms of the Merger Agreement, and Symantec has not completed its debt financing, then Symantec may elect to extend the Closing to the later of (x) February 9, 2017 and (y) the second business day after the satisfaction or waiver of the closing conditions set forth in Section 7.1 and Section 7.3 of the Merger Agreement. In such event, the closing conditions set forth in Section 7.2 of the Merger Agreement shall be deemed to have been satisfied for all purposes and any extension of the Closing pursuant to Section 2.3(y) of the Merger Agreement will no longer apply, subject to LifeLock not intentionally breaching certain conduct covenants in the Merger Agreement after the date of delivery of the officer’s certificate.
Other than as expressly modified pursuant to the Amendment, the Merger Agreement, which was filed as Annex A to LifeLock’s definitive proxy statement filed with the Securities and Exchange Commission on December 23, 2016, remains in full force and effect as originally executed on November 20, 2016. The foregoing description of the Amendment and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the Amendment, attached hereto as Exhibit 2.1 to this Current Report on Form 8-K, which is incorporated herein by this reference.
Item 8.01 Other Events.
In connection with the Merger, two purported class action complaints have been filed on behalf of the stockholders against the Company, the members of the board of directors, Symantec and Acquisition Sub in Arizona Superior Court, Maricopa County, and the United States District Court for the District of Arizona. The two complaints are captioned as follows: Minzer v. LifeLock, Inc. et al, CV-2016-53742 (filed December 15, 2016 ) and Parshall v. LifeLock, Inc. et al , Civ. No. 2:16-cv-04434-DKD (filed December 16, 2016), which we refer to collectively as the “Stockholder Actions.”
The Company believes that no supplemental disclosures are required under applicable laws; however, to avoid the risk of the Stockholder Actions delaying or adversely affecting the Merger and to minimize the expense of defending the Stockholder Actions, and without admitting any liability or wrongdoing, the Company is making certain disclosures below that supplement and revise those contained in the Definitive Proxy Statement, which we refer to as the “litigation-related supplemental disclosures.” The litigation-related supplemental disclosures contained below should be read in conjunction with the Definitive Proxy Statement, which is available on the Internet site maintained by the Securities and Exchange Commission at http://www.sec.gov, along with periodic reports and other information the Company files with the Securities and Exchange Commission. The Company and the other named defendants have denied, and continue to deny, that they have committed or assisted others in committing any violations of law or breaches of duty to LifeLock stockholders, and expressly maintain that, to the extent applicable, they complied with their fiduciary and other legal duties and are providing the litigation-related supplemental disclosures below solely to try to eliminate the burden and expense of further litigation, to put the claims that were or could have been asserted to rest, and to avoid any possible delay to the closing of the Merger that might arise from further litigation. Nothing in the litigation-related supplemental disclosures shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the litigation-related supplemental disclosures set forth herein. To the extent that the information set forth herein differs from or updates information contained in the Definitive Proxy Statement, the information set forth herein shall supersede or supplement the information in the Definitive Proxy Statement. All page references are to pages in the Definitive Proxy Statement, and terms used below, unless otherwise defined, have the meanings set forth in the Definitive Proxy Statement.
LifeLock’s Board of Directors continues to unanimously recommend that you vote (1) “FOR” the adoption of the merger agreement; (2) “FOR” the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the merger agreement at the time of the special meeting; and (3) “FOR” the approval, on a non-binding, advisory basis, of compensation that will or may become payable by LifeLock to our named executive officers in connection with the merger.
Forward-Looking Statements
All statements included or referenced may contain statements that are not historical facts and that constitute “forward-looking statements” within the meaning of such term under the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended, which we refer to as the Exchange Act. These forward-looking statements include statements regarding our business outlook, the expected completion and timing of the merger and other information relating to the merger and all other statements included herein other than recitation of historical facts. Words such as “will,” “intends,” “expects,” “anticipates,” “estimates,” “predicts,” “believes,” “should,” “potential,” “may,” “forecast,” “objective,” “plan,” “targets” or similar expressions are intended to identify such forward-looking statements. Forward-looking statements included herein are subject to risks and uncertainties that could cause actual results or events to differ from such statements, including, but not limited to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the Company’s business and the price of the common stock of the Company, (ii) the failure to satisfy the conditions to the consummation of the transaction, including the adoption of the merger agreement by the stockholders of the Company, (iii) the occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement, (iv) the effect of the announcement or pendency of the transaction on the Company’s business relationships, operating results, and business generally, (v) risks that the proposed transaction disrupts current plans and operations of the Company and potential difficulties in the Company’s employee retention as a result of the transaction, (vi) risks related to diverting management’s attention from the Company’s ongoing business operations, (vii) the outcome of any legal proceedings that may be instituted against the Company, its officers or directors related to the Merger Agreement or the transaction, (viii) the possibility that competing offers or acquisition proposals for the Company will be made; (ix) risks regarding the failure to obtain the necessary financing to complete the proposed transaction; (x) risks related to the equity and debt financing and related guarantee arrangements entered into in connection with the proposed transaction; and (xi) the ability of Symantec to implement its plans, forecasts, and other expectations with respect to the Company’s business after the completion of the proposed Merger and realize additional opportunities for growth and innovation. For additional information, please see Item 1A of Part II of our Quarterly Report on Form 10-Q for the quarter ended September 30, 2016, which we refer to as our Quarterly Report, entitled “Risk Factors” and in other sections of our Quarterly Report, including “Management’s Discussion and Analysis of Financial Condition and Results of Operations.” Actual results may differ materially from those contained in the forward-looking statements included herein. Any forward-looking statements are based on information currently available to us and we assume no obligation to update these statements as circumstances change, except as required by law. All subsequent written and oral forward-looking statements concerning the Merger or other matters addressed herein and attributable to us or any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section.
SUPPLEMENTAL DISCLOSURES TO DEFINITIVE PROXY STATEMENT RELATED TO
STOCKHOLDER ACTIONS
The “The Merger” section of the Definitive Proxy Statement under the heading “Background of the Merger” is hereby amended by:
Amending and restating the first sentence in the fourth paragraph on Page 46.
Later on November 17, 2016, representatives of Goldman Sachs informed Sponsor A-Sponsor B that LifeLock was pursuing a transaction with another party, but did not inform Sponsor A-Sponsor B that LifeLock was planning on entering into exclusive negotiations with such party.
Adding the below additional sentence to the end of the last full paragraph on page 47.
No potential acquirors have made any confidential proposals to LifeLock or its representatives or requested the waiver of any standstill provisions since LifeLock, Symantec and Acquisition Sub entered into the merger agreement.
The “The Merger” section of the Definitive Proxy Statement under the heading “Fairness Opinion of Goldman, Sachs & Co.” is hereby amended by:
Amending and restating the third and fourth sentences in the first full paragraph on Page 54.
Goldman Sachs first calculated the implied future equity values per share of common stock at year-end for each of the fiscal years 2017 to 2020 using the forward free cash flow per share set forth in the Five-Year Forecasts for those years and then applying a Forward FCF Yield range of 6.6% (based upon the three-month average of the one year forward trading multiples of LifeLock on and prior to November 10, 2016, the last trading day prior to the public report of a potential transaction involving LifeLock, which date we refer to here as “the Pre-Leak date”) to 9.9% (based upon the 12-month Pre-13D date average of the one year forward trading multiples of LifeLock). In addition, Goldman Sachs calculated implied future equity values per share of common stock at year-end for each of the fiscal years 2017 through 2020 using the next-12 month Adjusted EBITDA set forth in the Five-Year Forecasts for those years by applying Forward EV/EBITDA multiples ranging from 9.0x (based upon the 12-month Pre-13D date average of the one year forward trading multiples of LifeLock) to 13.6x (based upon the three-month Pre-Leak date average of the one year forward trading multiples of LifeLock) to the applicable next-twelve month Adjusted EBITDA as set forth in the Five-Year Forecasts.
Amending and restating the second, third and fourth sentences in the first paragraph under the section entitled “Illustrative Discounted Cash Flow Analysis” on Page 54 through 55.
Using discount rates ranging from 7.50% to 8.50%, reflecting estimates of LifeLock’s weighted average cost of capital (and derived by application of the Capital Asset Pricing Model, which requires certain company-specific inputs, including the target capital structure weightings, the cost of long-term debt, after-tax yield on permanent excess cash, if any, future applicable marginal cash tax rate and beta, as well as certain financial metrics for the United States financial markets generally), Goldman Sachs discounted to present value as of September 30, 2016 (1) estimates of unlevered free cash flow for LifeLock for the fourth calendar quarter of 2016 and the fiscal years 2017 through 2021 as reflected in the Five-Year Forecasts and (2) a range of illustrative terminal values for LifeLock, which were calculated by applying perpetuity growth rates ranging from 2.50% to 3.50%, to a terminal year estimate of the free cash flow to be generated by LifeLock, as reflected in the Five-Year Forecasts. The range of perpetuity growth rates was estimated by Goldman Sachs utilizing its professional judgment and experience, taking into account the Five-Year Forecasts and market expectations regarding long-term growth of gross domestic product and inflation. Goldman Sachs derived ranges of illustrative enterprise values for LifeLock by adding the ranges of present values it derived above and the present value of the net operating losses, as prepared by LifeLock’s management. Goldman Sachs then added to the range of illustrative enterprise values it derived for LifeLock the amount by which LifeLock’s cash, cash equivalents and marketable securities exceeded its indebtedness as of September 30, 2016 (approximately $166 million according to the LifeLock Form 10-Q for the period ended September 30, 2016, filed on November 9, 2016), as provided by the management of LifeLock, to derive a range of illustrative equity values for LifeLock.
The “The Merger” section of the Definitive Proxy Statement under the heading “Financial Forecasts” is hereby amended by:
Amending and restating the first full paragraph on Page 58.
As referred to below, “EBITDA” and “Adjusted EBITDA” is a financial measure commonly used in the technology industry but is not defined under GAAP. We calculate “EBITDA” as net income (loss) before depreciation and amortization, interest expense, interest income, and income tax (benefit) expense. We calculate Adjusted EBITDA as net income (loss) before depreciation and amortization, stock-based compensation, interest expense, interest income, other income (expense), income tax (benefit) expense, and acquisition related expenses, when applicable. For fiscal year 2016, we have also excluded from Adjusted EBITDA expenses related to the FTC litigation and the impact of a legal reserve for the settlement of a stockholder derivative lawsuit. We believe that the exclusion of certain items of income and expense from net income (loss) in calculating Adjusted EBITDA is useful because the amount of such income or expense may not directly correlate to the underlying operational performance of our business and/or such income and expense can vary significantly between periods.
Amending and restating the third and fourth full paragraphs on Page 58.
We define “Unlevered Free Cash Flow” as net income excluding depreciation and amortization, less acquisitions of property and equipment and adjusted for changes in working capital.
We included Adjusted EBITDA and Free Cash Flow because they are key measures we used to understand and evaluate our core operating performance and trends, to prepare and approve our annual budget, and to develop short- and long-term operational plans. We included EBITDA and Unlevered Free Cash Flow because they are key measures used to evaluate the proposed transaction by the board of directors and potential acquirors. In particular, the exclusion of certain expenses and cash flows in calculating EBITDA, Adjusted EBITDA, Free Cash Flow and Unlevered Free Cash Flow can provide a useful measure for period-to-period comparisons of our core business. Additionally, Adjusted EBITDA is a key financial measure used in determining management’s incentive compensation.
Although EBITDA, Adjusted EBITDA, Free Cash Flow and Unlevered Free Cash Flow are frequently used by investors in their evaluations of companies, these non-GAAP financial measures have limitations as analytical tools and should not be considered in isolation or as a substitute for financial information presented in accordance with GAAP. Because of these limitations, these non-GAAP financial measures should be considered alongside other financial performance measures. Further, these non-GAAP financial measures are not based on any standardized methodology prescribed by GAAP and are not necessarily comparable to similarly-titled measures presented by other companies.
Amending and restating the chart in the section entitled “Forecasts” at the bottom of page 58.
| (in millions) |
July
Forecasts 2016E |
October
Revisions 2016E |
2017E | 2018E | 2019E | 2020E | 2021E | |||||||||||||||||||||
|
Revenue |
$ | 666 | $ | 668 | $ | 743 | $ | 832 | $ | 938 | $ | 1,060 | $ | 1,200 | ||||||||||||||
|
Gross Profit (1) |
$ | 516 | $ | 517 | (2) | $ | 589 | $ | 664 | $ | 754 | $ | 862 | $ | 986 | |||||||||||||
|
EBITDA |
$ | 47 | $ | 46 | $ | 63 | $ | 76 | $ | 105 | $ | 147 | $ | 205 | ||||||||||||||
|
Adjusted EBITDA |
$ | 86 | $ | 90 | $ | 100 | $ | 118 | $ | 152 | $ | 200 | $ | 264 | ||||||||||||||
|
Free Cash Flow |
$ | 87 | $ | 86 | $ | 113 | $ | 133 | $ | 153 | $ | 171 | $ | 216 | ||||||||||||||
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Unlevered Free Cash Flow (3) |
$ | 39 | $ | 14 | $ | 61 | $ | 71 | $ | 90 | $ | 116 | $ | 155 | ||||||||||||||
| (1) | Gross Profit for each period provided consists of Revenue less cost of servicing. Cost of servicing was $150 million, $151 million, $154 million, $168 million, $184 million, $198 million, and $214 million for the periods covered by the July Forecasts 2016E, the October Revisions 2016E, 2017E, 2018E, 2019E, 2020E, and 2021E, respectively. |
| (2) | This figure was calculated in accordance with GAAP and was the figure presented to the LifeLock Board. The October Revisions provided to Symantec reflected a non-GAAP adjusted gross margin of $523 million, which was calculated by adding expenses for stock-based compensation and depreciation back to gross profit as calculated in accordance with GAAP. |
| (3) | LifeLock estimated the net present value of standalone net operating losses to be $77 million. The net present value was determined based on an estimated combined federal and state tax rate and a discount rate that accounts for the assumed cost of debt. |
Amending and restating the section entitled “Reconciliation of Adjusted EBITDA to Net Income” on page 59.
Reconciliation of Adjusted EBITDA and EBITDA to Net Income
The Forecasts include a forecast of our Adjusted EBITDA and EBITDA. A reconciliation of the differences between Adjusted EBITDA and EBITDA and net income, a financial measurement prepared in accordance with GAAP, is set forth below. In the calculation of EBITDA, the Company assumed zero interest expense and interest income. In the calculation of Adjusted EBITDA, the Company assumed zero interest expense, interest income, other income (expense) and acquisition related expenses.
| (in millions) |
July
Forecasts 2016E |
October
Revisions 2016E |
2017E | 2018E | 2019E | 2020E | 2021E | |||||||||||||||||||||
|
Reconciliation of Adjusted EBITDA and EBITDA to Net Income |
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|
Net Income |
$ | 15 | $ | 15 | $ | 26 | $ | 34 | $ | 54 | $ | 79 | $ | 114 | ||||||||||||||
|
Depreciation and amortization |
22 | 22 | 20 | 20 | 16 | 15 | 15 | |||||||||||||||||||||
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Income tax (benefit) Expense |
10 | 9 | 17 | 23 | 36 | 53 | 76 | |||||||||||||||||||||
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EBITDA |
47 | 46 | 63 | 76 | 105 | 147 | 205 | |||||||||||||||||||||
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Share-based compensation |
34 | 34 | 37 | 42 | 47 | 53 | 60 | |||||||||||||||||||||
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FTC litigation expense and legal settlements |
6 | 10 | — | — | — | — | — | |||||||||||||||||||||
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Adjusted EBITDA |
$ | 86 | $ | 90 | $ | 100 | $ | 118 | $ | 152 | $ | 200 | $ | 264 | ||||||||||||||
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Adding the below additional sentence to the end of the first full paragraph under the section entitled “Reconciliation of Free Cash Flow to Net Cash Provided by Operating Activities” on page 59.
Other than as indicated in the reconciliation below, no other line items were used in the calculation of Free Cash Flow.
Adding the below additional sentence to the end of the first full paragraph under the section entitled “Reconciliation of Unlevered Free Cash Flow to Net Income” on page 59.
Other than as indicated in the reconciliation below, no other line items were used in the calculation of Unlevered Free Cash Flow.
Item 9.01. Financial Statements and Exhibits
| (d) | Exhibits. |
|
Exhibit No. |
Description |
|
| 2.1 | Amendment No. 1 to Agreement and Plan of Merger, dated as of January 16, 2017, by and among LifeLock, Inc., Symantec Corporation and L1116 Merger Sub, Inc. | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| LIFELOCK, INC. | ||
| By: |
/s/ Douglas Jeffries |
|
| Douglas Jeffries | ||
| Chief Financial Officer and Chief Administrative Officer | ||
Date: January 17, 2017
EXHIBIT INDEX
|
Exhibit No. |
Description |
|
| 2.1 | Amendment No. 1 to Agreement and Plan of Merger, dated as of January 16, 2017, by and among LifeLock, Inc., Symantec Corporation and L1116 Merger Sub, Inc. | |
Exhibit 2.1
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this “ Amendment ”) to the Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of November 20, 2016, by among and Symantec Corporation, a Delaware corporation (“ Parent ”), LifeLock, Inc., a Delaware corporation (the “ Company ”), and L1116 Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“ Merger Sub ”) is made and entered into as of January 16, 2017. Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement.
RECITALS
WHEREAS , Section 8.4 of the Merger Agreement provides that the Merger Agreement may be amended by the Parties at any time by execution of an instrument in writing signed on behalf of each of Parent, Merger Sub and the Company (pursuant to authorized action by the Company Board (or a committee thereof)); and
WHEREAS , Parent, the Company and Merger Sub now desire to amend the Merger Agreement as set forth herein.
AGREEMENT
NOW, THEREFORE , in consideration of the foregoing and the mutual representations, warranties, covenants and agreements contained in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
1. Section 2.3 of the Merger Agreement is hereby amended and restated in its entirety as follows:
Section 2.3 Closing .
| (a) | The consummation of the Merger will take place at a closing (the “ Closing ”) to occur at (i) 9:00 a.m., Pacific time, at the offices of Wilson Sonsini Goodrich & Rosati, Professional Corporation, 650 Page Mill Road, Palo Alto, CA 94304 (or remotely via the electronic exchange of documents), on a date to be agreed upon by Parent, Merger Sub and the Company that is no later than the second Business Day after the satisfaction or waiver (to the extent permitted under this Agreement) of the last to be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted under this Agreement) of such conditions); or (ii) such other time, location and date as Parent, Merger Sub and the Company mutually agree in writing; provided that, notwithstanding the foregoing, (x) in no event shall Parent be obligated to consummate the Closing prior to January 31, 2017; and (y) if Parent has not timely received the Requested Information or the Requested Information is not Compliant, then Parent shall not be obligated to consummate the Closing until five Business Days after the date that Parent has received all information required under clauses (i) and (ii) of the definition of “Requested Information” (assuming for the purpose of the definition of “Requested Information” as used in this clause (y) that the Closing Date referenced therein is the date of receipt by Parent of such information) during which five Business Day-period such information is and remains Compliant (as such term is defined in clauses (ii) and (iii) of the definition thereof). |
| (b) | Notwithstanding Section 2.3(a), if at any time on or after January 31, 2017 and prior to February 9, 2017 (i) the conditions set forth in Section 7.1 and Section 7.2 are satisfied, including the delivery by the Company to Parent of a certificate of the Company pursuant to Section 7.2(c), validly executed for and on behalf of the Company and in its name by a duly authorized executive officer thereof (the “ Officer’s Certificate ”) in the form attached as Exhibit A hereto, and (ii) Parent has received all information required under clauses (i) and (ii) of the definition of “Requested Information” (assuming for the purpose of the definition of “Requested Information” as used in this Section 2.3(b) that the Closing Date referenced therein is the Satisfaction Date (as defined below)) and such Requested Information is Compliant (the occurrence of clauses (i) and (ii), the “ Satisfaction Event ” and the date the Satisfaction Event occurs, the “ Satisfaction Date ”) and the Financing shall not have been completed as of the Satisfaction Date, then, Parent shall be permitted to elect, and shall notify the Company of such election within 24 hours of receiving the Officer’s Certificate, to consummate the Closing on the Extended Closing Date (as defined below) (such election, the “ Extension Election ”), subject to there having occurred no Intentional Breach by the Company on or after the Satisfaction Date through the Extended Closing Date of Sections 5.2(a)(i), 5.2(a)(ii), 5.2(a)(iii), 5.2(a)(iv), 5.2(a)(vii), 5.2(a)(ix) and 5.2(a)(xiii)(D) (except in each case, (A) as set forth in Section 5.2 of the Company Disclosure Letter; (B) as approved in writing (including by email) by Parent; or (C) as expressly contemplated by the terms of this Agreement). As used herein, the “ Extended Closing Date ” shall refer to date that is the later of (X) February 9, 2017 and (Y) the second Business Day after the satisfaction or waiver (to the extent permitted under this Agreement) of the last to be satisfied or waived of the conditions set forth in Sections 7.1 and 7.3 (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver (to the extent permitted under this Agreement) of such conditions), unless another date is mutually agreed upon by each of the Parties in writing. If Parent makes the Extension Election, effective as of the Satisfaction Date, (i) clause (y) of the proviso of Section 2.3(a) shall no longer apply, (ii) the closing conditions set forth in Section 7.2 (including the requirement to deliver a certificate in accordance with Section 7.2(c)) shall be deemed to have been satisfied and/or waived by Parent and Merger Sub for all purposes of the Merger Agreement, (iii) the Satisfaction Event shall be deemed conclusively to have occurred and shall not be subject to challenge by any Party, and (iv) the Officer’s Certificate shall be deemed conclusively to be accurate and shall not be subject to challenge by any Party. If Parent does not make the Extension Election, Parent shall be required to consummate the Merger in accordance with Section 2.3(a) (without giving effect to this Section 2.3(b)). For the avoidance of doubt, upon occurrence of the Satisfaction Event and Parent making the Extension Election, neither Parent’s or Merger Sub’s obligation to consummate the Closing pursuant to Section 2.3 shall be subject to satisfaction of the closing conditions set forth in Section 7.2 and Parent and Merger Sub shall consummate the Merger as contemplated herein, subject to (1) the satisfaction of the condition set forth in Section 7.1(c) as of the Extended Closing Date and (2) there having occurred no Intentional Breach by the Company on or after the Satisfaction Date of Sections 5.2(a)(i), 5.2(a)(ii), 5.2(a)(iii), 5.2(a)(iv), 5.2(a)(vii), 5.2(a)(ix) and 5.2(a)(xiii)(D) (except in each case (A) as set forth in Section 5.2 of the Company Disclosure Letter; (B) as approved in writing (including by email) by Parent; or (C) as expressly contemplated by the terms of this Agreement). The date on which the Closing actually occurs is referred to as the “Closing Date.” |
2. The references to “Section 2.3” in Section 8.1(c) of the Agreement shall each be replaced with “Section 2.3(a)”.
2
3. Each of Parent, Merger Sub and the Company respectively represents and warrants as follows: (A) it has the requisite corporate power and authority to (a) execute and deliver this Amendment, and (b) perform its covenants and obligations hereunder; (B) the execution and delivery of this Amendment by it, and the performance by it of its covenants and obligations hereunder have been duly authorized by all necessary corporate action on the part of it, and no additional corporate actions on the part of it are necessary to authorize (i) the execution and delivery of this Amendment; (ii) the performance by it of its covenants and obligations hereunder, and, subject to the receipt of the Requisite Stockholder Approval, the consummation of the Merger; and (C) this Amendment has been duly executed and delivered by it and, assuming the due authorization, execution and delivery by the other Parties hereto, constitutes a legal, valid and binding obligation of it, enforceable against the Company in accordance with its terms, except as such enforceability (x) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar Laws affecting or relating to creditors’ rights generally; and (y) is subject to general principles of equity. Each of Parent and Merger Sub hereby acknowledges that as of the date of this Amendment, all information required under clauses (i) and (ii) of the definition of “Requested Information” (assuming for the purpose of the definition of “Requested Information” as used in this Section 3 that the Closing Date referenced therein is the date of this Amendment) and all information required under clause (iii) of the definition of “Requested Information” that has been requested by Parent as of the date of this Amendment has been provided in accordance with the Merger Agreement and is, to the Knowledge of Parent and Merger Sub, Compliant.
4. Except as expressly modified by this Amendment, all terms of the Merger Agreement shall remain unmodified and in full force and effect. For the avoidance of doubt, all references in the Merger Agreement to “this Agreement” will be deemed to be references to the Merger Agreement as amended by this Amendment.
5. Article IX of the Merger Agreement is hereby incorporated by reference mutatis mutandis .
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The Parties are signing this Amendment on the date stated in the introductory clause.
| SYMANTEC CORPORATION | ||
| By: |
/s/ Scott C. Taylor |
|
| Name: | Scott C. Taylor | |
| Title: | Executive Vice President, General Counsel and Secretary | |
| L1116 MERGER SUB, INC. | ||
| By: |
/s/ Scott C. Taylor |
|
| Name: | Scott C. Taylor | |
| Title: | President | |
| LIFELOCK, INC. | ||
| By: |
/s/ Hilary Schneider |
|
| Name: | Hilary Schneider | |
| Title: | Chief Executive Officer and President | |
[S IGNATURE P AGE TO A MENDMENT N O . 1 TO A GREEMENT AND P LAN OF M ERGER ]