On March 7, 2023, BofA Securities sent a process letter for phase two of the process to each of Emerson, Party A, Party B, and Party C, requesting a fully financed definitive offer for a possible acquisition of NI by April 5, 2023. The phase two process letter also requested that a mark-up of the draft merger agreement and disclosure schedule to the merger agreement be submitted to Wachtell Lipton on or before March 24, 2023. Also on March 7, BofA Securities posted the draft merger agreement to the electronic data room.
On March 8, 2023, the Transaction Evaluation Committee met, with members of NI management and representatives of BofA Securities, and Wachtell Lipton in attendance. BofA Securities provided an update on the strategic review process and next steps in the process, including the due dates provided in the phase two process letter for parties to provide comments on the draft merger agreement and submit acquisition proposals. Wachtell Lipton also discussed with the TEC how the strategic review process might proceed following the anticipated receipt of acquisition proposals on April 5.
Between March 8 and March 9, 2023, Emerson, Party A, and Party B executed clean team agreements with NI, following which BofA Securities provided representatives of each party with access to a clean room in the electronic data room containing competitively sensitive information.
On March 8, 2023, Party C informed BofA Securities that it had decided to no longer participate in the strategic review process.
Throughout the month of March 2023, representatives from NI held a number of due diligence calls and meetings with representatives from Emerson, Party A, Party B, and their respective advisors, and provided additional due diligence materials via the electronic data room.
On March 15, 2023, the Transaction Evaluation Committee met, with members of NI management and representatives of BofA Securities and Wachtell Lipton in attendance. BofA Securities provided an update on the strategic review process, including that Party C had communicated its decision to no longer participate in the process. BofA Securities also provided an overview of the due diligence process and meetings to date with the three remaining potential counterparties, including the participants from NI in the meetings and due diligence sessions and the primary questions posed by the counterparties, and noted that site visits were upcoming. Wachtell Lipton provided an update on the clean team process with the potential counterparties, and BofA Securities and Wachtell Lipton discussed next steps in the strategic review process following the anticipated receipt of acquisition proposals on April 5.
On March 24, 2023, Emerson and Party B submitted comments on the draft merger agreement that had been provided in the electronic data room.
On March 29, 2023, the Transaction Evaluation Committee met, with members of NI management and representatives of BofA Securities and Wachtell Lipton in attendance. BofA Securities provided an update on the strategic review process, in particular on the progress of due diligence, including the diligence calls that had taken place with each of the three remaining parties in the process, and Mr. Starkloff discussed the calls he had had with representatives of each party regarding NI’s preliminary first quarter results. Wachtell Lipton discussed the draft merger agreement markups submitted by Emerson and Party B, differences between the markups on key terms, and Wachtell Lipton’s views on such terms, including key regulatory terms.
On March 30, 2023, Party A submitted comments on the draft merger agreement. On March 31 and April 1, Wachtell Lipton had calls with DPW and with Party A’s and Party B’s respective counsel to provide feedback on each party’s markup of the draft merger agreement in advance of the April 5 deadline for acquisition proposals.
On March 31, 2023, Mr. Starkloff spoke by phone with the respective Chief Executive Officer of each of Emerson, Party A, and Party B, to provide feedback on each party’s preliminary proposal in advance of the April 5 deadline for acquisition proposals.
On the morning of April 5, 2023, the Transaction Evaluation Committee met, with members of NI management and representatives of BofA Securities and Wachtell Lipton in attendance. Wachtell Lipton provided an update on the conversations with each party’s counsel regarding the draft merger agreement, and BofA Securities provided an update on its recent conversations with the parties and their financial advisors. The TEC and the others present discussed the evaluation process for the bids anticipated to be received later that day and the Board meeting scheduled for April 7.