UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

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SCHEDULE TO

Tender Offer Statement under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 2)

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SHARPS COMPLIANCE CORP.

(Name of Subject Company — Issuer)

RAVEN HOUSTON MERGER SUB, INC.

(Name of Filing Persons — Offeror)

a subsidiary of

RAVEN BUYER, INC.

(Name of Filing Persons — Parent of Offeror)

controlled by

AURORA EQUITY PARTNERS VI L.P.,

AURORA EQUITY PARTNERS VI-A L.P.

AURORA ASSOCIATES VI L.P.

(Name of Filing Persons — Other Persons)

Common Stock, par value $0.01 per share

(Title of Class of Securities)

820017101

(CUSIP Number of Class of Securities)

Raven Houston Merger Sub, Inc.

c/o Raven Buyer, Inc.

11611 San Vicente Blvd Suite 800

Los Angeles, CA 90049

Attention: Angela Klappa, Chief Executive Officer and President

(310) 551-0101

Copies to:

Ari B. Lanin

Daniela Stolman

Gibson, Dunn & Crutcher LLP

2029 Century Park East, Suite 4000

Los Angeles, CA 90067

(310) 552-8500

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)

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Check the appropriate boxes below to designate any transactions to which the statement relates:

Check the following box if the filing is a final amendment reporting the results of the tender offer. ☐

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

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This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on July 25, 2022, as amended by Amendment No. 1 thereto filed with the SEC on July 27, 2022 (as amended, the “Schedule TO”), and relates to the offer by Raven Houston Merger Sub, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Raven Buyer, Inc. (“Parent”), a Delaware corporation, and a wholly owned subsidiary of Raven Intermediate, Inc., a Delaware corporation, which is wholly-owned by Raven Parent, Inc., a Delaware corporation, which in turn is controlled by Aurora Equity Partners VI L.P., a Delaware limited partnership, Aurora Equity Partners VI-A L.P., a Delaware limited partnership, and Aurora Associates VI L.P., a Delaware limited partnership (Aurora Equity Partners VI L.P., Aurora Equity Partners VI-A L.P. and Aurora Associates VI L.P. are collectively referred to as the “Aurora Funds” and, together with Purchaser and Parent, the “Filing Persons”), which are managed by Aurora Capital Partners VI L.P., as general partner, which in turn is managed by Aurora Capital Partners UGP LLC, as general partner, to purchase all outstanding shares of common stock, par value $0.01 per share (individually, a “Share” and collectively, the “Shares”), of Sharps Compliance Corp. (“Sharps”), a Delaware corporation, for $8.75 per Share, net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated July 25, 2022 (together with any amendments and supplements thereto, the “Offer to Purchase”), and the related Letter of Transmittal (together with any amendments and supplements thereto, the “Letter of Transmittal” and, together with the Offer to Purchase, the “Offer”), copies of which are attached as Exhibits (a)(1)(A) and (a)(1)(B), respectively, to the Schedule TO.  This Amendment, among other things, adds the Aurora Funds as co-bidders and signatories to the Schedule TO.  Responses to all items in the Schedule TO, as amended by this Amendment, are addressed for all Filing Persons, including the Aurora Funds.

Except as otherwise set forth in this Amendment, all terms of the Offer and all other disclosures set forth in the Schedule TO and the Exhibits thereto remain unchanged and are hereby expressly incorporated into this Amendment by reference.  This Amendment should be read together with the Schedule TO.  Capitalized terms used and not otherwise defined in this Amendment shall have the meanings assigned to such terms in the Schedule TO and the Offer to Purchase.

Items 1 through 11.

The Offer to Purchase and Items 1 through 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:

The information set forth in Item 7(b) of the Schedule TO is hereby amended and restated in its entirety to read as follows:

“(b)          The information set forth in Section 10 — “Source and Amount of Funds” of the Offer to Purchase is incorporated herein by reference.”

The information set forth in each of (1) the third paragraph of the cover page of the Offer to Purchase and (2) the fourth paragraph of the Offer to Purchase under the heading “Introduction” is hereby amended and restated in its entirety to read as follows:

“At a meeting duly called and held on July 11, 2022, after careful consideration, including review of the terms and conditions of the Offer in consultation with certain members of Sharps’s senior management as well as Sharps’s financial and legal advisors, and after considering its fiduciary duties under Delaware law, the board of directors of Sharps unanimously: (i) determined that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement were fair to and in the best interests of Sharps and its stockholders, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, upon the terms and subject to the conditions therein, and determined and resolved that the Merger would be governed by Section 251(h) of the DGCL, and (iii) resolved to recommend on behalf of Sharps that Sharps’s stockholders accept the Offer and tender their Shares pursuant to the Offer.”

The information set forth in the second bullet of the first paragraph of the Offer to Purchase under the heading “Summary Term Sheet—What are the most significant conditions to the Offer?” is hereby amended and restated in its entirety to read as follows:

The information set forth in the first paragraph of the Offer to Purchase under the heading “Summary Term Sheet—What does the board of directors of Sharps recommend regarding the Offer?” is hereby amended and restated in its entirety to read as follows:

“At a meeting duly called and held on July 11, 2022, after careful consideration, including review of the terms and conditions of the Offer in consultation with certain members of Sharps’s senior management as well as Sharps’s financial and legal advisors, and after considering its fiduciary duties under Delaware law, the board of directors of Sharps unanimously: (i) determined that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement were fair to and in the best interests of Sharps and its stockholders, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, upon the terms and subject to the conditions therein, and determined and resolved that the Merger would be governed by Section 251(h) of the DGCL, and (iii) resolved to recommend on behalf of Sharps that Sharps’s stockholders accept the Offer and tender their Shares pursuant to the Offer.”

The information set forth in the first paragraph of the Offer to Purchase under the heading “Introduction” is hereby amended and restated in its entirety to read as follows:

Raven Houston Merger Sub, Inc., a Delaware corporation (“Purchaser” “we,” “our,” or “us”), is a wholly-owned subsidiary of Raven Buyer, Inc., a Delaware corporation (“Parent”), which is controlled by the Aurora Funds (as defined herein), which are managed by Aurora Capital Partners Management VI L.P., as general partner, which in turn is managed by Aurora Capital Partners UGP LLC, as general partner. Purchaser is offering to purchase all outstanding shares of common stock, par value $0.01 per share (individually, a “Share” and collectively, the “Shares”), of Sharps Compliance Corp. (“Sharps”), a Delaware corporation, for $8.75 per Share (the “Offer Price”), net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in this Offer to Purchase (together with any amendments or supplements hereto, this “Offer to Purchase”) and the accompanying Letter of Transmittal (together with any amendments or supplements thereto, the “Letter of Transmittal” and, together with this Offer to Purchase, the “Offer”).  For the avoidance of doubt, references herein to the “Offer” refer to the Offer as it may be extended from time to time, unless indicated otherwise.

The information set forth in the seventh paragraph of the Offer to Purchase under the heading “Introduction” is hereby amended and restated in its entirety to read as follows:

“The Offer is conditioned upon, among other things: (i) prior to the expiration of the Offer, there being validly tendered (not counting as validly tendered any Shares tendered pursuant to guaranteed delivery procedures that have not yet been delivered in settlement or satisfaction of such guarantee) and not validly withdrawn a number of Shares that, together with the Shares, if any, then owned by Parent or any of its subsidiaries, would represent at least one Share more than fifty percent (50%) of the number of Shares that are then issued and outstanding as of the expiration of the Offer on a fully diluted basis (which means, as of any time, the number of Shares outstanding, together with all Shares that Sharps would be required to issue pursuant to the conversion or exercise of all options, rights and securities convertible into or exercisable for Shares or otherwise, including after giving effect to the cancellation Sharps Options (as defined below) in accordance with Section 13 — “The Transaction Documents — The Merger Agreement — Treatment of Sharps Stock Options,” and regardless of the conversion or exercise price, the vesting schedule or other terms and conditions thereof) (the “Minimum Condition”); and (ii) prior to the expiration of the Offer, the applicable waiting period under the Merger Agreement under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), in respect of the transactions contemplated by the Merger Agreement having expired or having been terminated (the “HSR Condition”).  The HSR Condition was satisfied on August 8, 2022 when the waiting period under the HSR Act expired.  See Section 15 — “Conditions of the Offer” and Section 16 — “Certain Legal Matters; Regulatory Approvals — Antitrust Compliance.””

The information set forth in the second paragraph of the Offer to Purchase under the heading the Offer under Section 1 —“Terms of the Offer” is hereby amended and restated in its entirety to read as follows:

“The Offer is subject to the conditions set forth in Section 15 — “Conditions of the Offer,” which include, among other things, satisfaction of the Minimum Condition.  We can waive certain conditions of the Offer without the consent of Sharps.  We cannot, however, amend or waive the Minimum Condition.”

The information set forth in the Offer to Purchase under the heading the Offer under Section 8 — “Certain Information Concerning Sharps” is hereby amended and supplemented to add, before the last paragraph in such section, the following:

“Certain Litigation.  On August 4, 2022, Dan Rodenbach filed a lawsuit concerning the transactions contemplated by the Merger Agreement (the “Transactions”) against Sharps and the directors of Sharps in the U.S. District Court for the Southern District of New York.  The case is captioned Rodenbach v. Sharps Compliance Corp. et al., Case No. 1:22-cv-006647 (S.D.N.Y.).  On August 5, 2022, Jeffrey D. Justice, II and Marc Waterman filed additional similar lawsuits concerning the Transactions against Sharps and the directors of Sharps in the U.S. District Court for the Southern District of New York.  Those cases are captioned Justice v. Sharps Compliance Corp. et al., Case No. 1:22-cv-06689 (S.D.N.Y.), and Waterman v. Sharps Compliance Corp. et al., Case No. 1:22-cv-06697 (S.D.N.Y.). The three lawsuits assert that Sharps misrepresented or omitted material information pertaining to the Transactions in the Schedule 14D-9 filed on July 25, 2022, including but not limited to the alleged omission of material information regarding the engagement of, and the financial analyses conducted by, Raymond James & Associates, Inc. in connection with the Transactions, and with respect to the alleged omission of material information regarding Sharps’s financial projections.  The lawsuits collectively assert claims under Sections 14 and 20 of the Exchange Act and the rules promulgated thereunder.  The complaints seek injunctive relief, damages, declaratory relief, litigation costs, and other unspecified costs and relief.

As of August 8, 2022, Sharps has also received six stockholder demand letters, which generally seek that certain allegedly omitted information in the Schedule 14D-9 be disclosed.

The outcome of these lawsuits and demand letters cannot be predicted with certainty; however, Sharps believes that they are without merit and intends to vigorously defend against them.  Additional lawsuits or demand letters may be filed against or received by Sharps, its directors, or other parties in connection with the Transactions.  If additional similar complaints or demand letters are filed or served, absent new or different allegations that are material, Sharps will not necessarily announce such additional filings.”

The information set forth in the third paragraph of the Offer to Purchase under the heading the Offer under Section 9 — “Certain Information Concerning Purchaser and Parent and the Aurora Funds” is hereby amended and supplemented to add the following:

“Curtis Bay Medical Waste Services (“Curtis Bay”) is a wholly-owned indirect subsidiary of Parent, and is in turn indirectly owned and controlled by the Aurora Funds.  Curtis Bay includes CBE Acquisition Corp., a Delaware corporation indirectly controlled by Parent.  CBE Acquisition Corp. has several subsidiaries, including, but not limited to, Curtis Bay Medical Waste Services, LLC, a Delaware limited liability company.  Curtis Bay provides comprehensive medical waste solutions including collection, transfer, transportation, recycling, waste reduction, sharps management, disposal, and consulting services to hospitals, medical offices, pharmacies and other healthcare providers. The company is dedicated to delivering customized, professional responses to all medical waste disposal challenges.”

The information set forth in the fourth and fifth paragraphs of the Offer to Purchase under the heading the Offer under Section 9 — “Certain Information Concerning Purchaser and Parent and the Aurora Funds” is hereby amended and restated in its entirety to read as follows:

“The name, business address, current principal occupation or employment, five-year employment history and citizenship of each director and executive officer of Parent and Purchaser, and each member of the board of managers and executive officer of Aurora Capital Partners UGP LLC, the general partner of Aurora Capital Partners VI L.P., which manages each of the Aurora Funds, are set forth on Schedule I hereto.

During the last five years, none of Parent, Purchaser or any of the Aurora Funds or, to the best knowledge of Parent, Purchaser or each of the Aurora Funds, any of the persons listed in Schedule I to this Offer to Purchase (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining such person from future violations of, or prohibiting activities subject to, U.S. federal or state securities laws, or a finding of any violation of such laws.”

The information set forth in the Offer to Purchase under the heading the Offer under Section 10 — “Source and Amount of Funds—Debt Financing” is hereby amended and restated in its entirety to read as follows:

“In connection with its entry into the Merger Agreement, Parent entered into a debt commitment letter (the “Debt Commitment Letter”) with certain financial institutions, providing for incremental commitments to Parent’s existing credit facilities, comprised of (i) a senior secured incremental term loan facility in an aggregate principal amount of $95.0 million (the “Incremental Term Loan Credit Facility”) and (ii) an increase to Parent’s existing senior secured revolving credit facility in an aggregate principal amount of $15.0 million (the “Incremental Revolving Credit Facility” and, together with the Incremental Term Loan Credit Facility, the “Incremental Facilities”).

It is anticipated that the proceeds of the Incremental Facilities will be used to partially finance the Merger Amount, refinance existing indebtedness of Sharps and its subsidiaries, to make certain distributions to the Aurora Funds in respect of the Equity Financing, pay related fees and expenses incurred in connection with the Offer, the Merger and the other transactions contemplated by the Merger Agreement and to provide for ongoing working capital and for other general corporate purposes of the Parent and its subsidiaries (including Company and its subsidiaries after giving effect to the Offer and the Merger).

The Incremental Facilities will have the same maturity date of the existing credit facilities of the Parent, which is February 1, 2027.  The Incremental Term Loan Credit Facility will amortize quarterly, starting the first full fiscal quarter after the date of funding, in installments equal to 0.25% of the principal amount of the Incremental Term Loan Facility, with the balance of the Incremental Term Loan Credit Facility being due and payable on February 1, 2027.  The amounts outstanding under the Incremental Facilities will bear interest at a rate per annum equal to, at the Parent’s option, the base rate or the adjusted term SOFR rate, plus, in each case, an applicable margin.  The applicable margin for the first four fiscal quarters after the funding date shall be 5.00% per annum for base rate loans and 6.00% per annum for adjusted term SOFR rate loans, and, thereafter, subject to a leverage-based pricing grid as set forth in the Debt Commitment Letter.  Other than in respect of the mandatory amortization payments as set forth above, there are no current plans to repay the Incremental Term Loan Credit Facility prior to its stated maturity.

The definitive documentation for the Debt Financing as contemplated by the Debt Commitment Letter will contain covenants, events of default and other terms and provisions that have been agreed with the financial institutions and are set forth on the term sheet attached as an exhibit to the Debt Commitment Letter and otherwise consistent with the “Documentation Principles” contemplated by the Debt Commitment Letter.

The availability of the Debt Financing is subject to, among other things:

•	the substantially concurrent consummation of the Merger in accordance with the Merger Agreement in all material respects;

•

the consummation of the Equity Financing (as may be reduced pursuant to the terms of the Equity Commitment Letter) in an amount equal to the Minimum Equity Contribution (as defined in the Debt Commitment Letter) and the substantially concurrent consummation of the Refinancing (as defined in the Debt Commitment Letter);

•	the execution and delivery of definitive documentation as set forth in the Debt Commitment Letter;

•	no Material Adverse Effect (as defined as in the Merger Agreement) has occurred since the date of the Merger Agreement;

•	the receipt by lenders of certain audited and unaudited financial statements of Sharps and its subsidiaries;

•	the payment of all applicable fees and expenses;

•	the receipt by the lenders of documentation and other information required under applicable “know your customer” and anti-money laundering rules and regulations (including the PATRIOT Act and 31 C.F.R. §1010.230) at least ten business days prior the date of funding; and

•	the accuracy of the Specified Acquisition Agreement Representations and the Specified Representations (each as defined in the Debt Commitment Letter).

The foregoing summary description of the Debt Commitment Letter does not purport to be a complete description of the terms and conditions of the Debt Commitment Letter and is qualified in its entirety by reference to the Debt Commitment Letter, a copy of which is attached as an exhibit to the Schedule TO.”

The information set forth in the third paragraph of the Offer to Purchase under the heading the Offer under Section 13 — “The Transaction Documents—The Merger Agreement” is hereby amended and restated in its entirety to read as follows:

“The Offer.  The Merger Agreement provides that Purchaser must commence the Offer as promptly as reasonably practicable, and in any event within thirteen calendar days of the date of the Merger Agreement.  Our obligation to accept for payment and pay for all Shares validly tendered and not validly withdrawn pursuant to the Offer is subject to the satisfaction of the Minimum Condition and the satisfaction or waiver by Parent or Purchaser of the other conditions set forth in Section 15 — “Conditions of the Offer.”  We can waive certain conditions to the Offer without the consent of Sharps.  We cannot, however, amend or waive other conditions, including the Minimum Condition.  The Merger Agreement provides that each Sharps stockholder who tenders Shares in the Offer will receive $8.75 for each Share validly tendered and not validly withdrawn, net to the seller in cash, without interest and less any applicable withholding taxes.  We have agreed that, unless otherwise contemplated in the Merger Agreement, without the consent of Sharps, we will not: […]”

The information set forth in the third paragraph of the Offer to Purchase under the heading the Offer under Section 13 — “The Transaction Documents—The Merger Agreement—Consents and Approvals” is hereby amended and restated in its entirety to read as follows:

“Furthermore, Parent, Purchaser and Sharps have agreed to make (and to cause their respective ultimate parent entities to make) any necessary filings under the HSR Act as soon as practicable and no later than thirteen days after execution of the Merger Agreement.  Each of Parent and Sharps agreed to furnish promptly to the FTC, the Antitrust Division, and any other requesting governmental entity any additional information requested by either of them pursuant to the HSR Act or any other antitrust or related law in connection with such filings, including all documents or information requested under 16 C.F.R. § 803.20 or other rules under the HSR Act.  On July 22, 2022, Aurora Equity Partners VI L.P. submitted the necessary filings under the HSR Act.  On August 8, 2022, the waiting period under the HSR Act expired and the HSR Condition was satisfied.”

The information set forth in the first bullet point of the first paragraph of the Offer to Purchase under the heading the Offer under Section 13 — “The Transaction Documents—The Merger Agreement—Conditions to the Merger” is hereby amended and supplemented to add the following:

“The HSR Condition was satisfied on August 8, 2022 when the waiting period under the HSR Act expired.”

The information set forth in the first two paragraphs of the Offer to Purchase under the heading the Offer under Section 13 — “The Transaction Documents—Tender and Support Agreement” is hereby amended and restated in its entirety to read as follows:

“On July 12, 2022, in connection with the execution and delivery of the Merger Agreement, the following executive officers of Sharps:  W. Patrick Mulloy II, Chief Executive Officer and President of Sharps, and Eric T. Bauer, the Executive Vice President and Chief Financial Officer of Sharps,and all of Sharps’ current directors, consisting of : W. Patrick Mulloy II, Sharon R. Gabrielson, Parris H. Holmes, Susan N. Vogt, and Gary R. Enzor, (collectively, the “Supporting Stockholders”) entered into a Tender and Support Agreement with Parent and Purchaser (the “Tender and Support Agreement”).

Pursuant to the Tender and Support Agreement, the Supporting Stockholders have agreed to tender in the Offer all Shares beneficially owned by such stockholders (which represent approximately 4.0% of the Shares issued and outstanding), and not withdraw any such Shares previously tendered. The Supporting Stockholders have also agreed to vote all Shares beneficially owned by them, among other things, (i) in favor of the Merger, the adoption of the Merger Agreement, and any other matters relating to and/or necessary for consummation of the Merger and the other transactions contemplated in the Merger Agreement; (ii) against any action, proposal, agreement, or transaction made in opposition to or competition with the merger or the Merger Agreement, including, without limitation, any Acquisition Proposal, including any Superior Proposal (or any proposal relating to or intended to facilitate an Acquisition Proposal or a Superior Proposal), and (iii) against any action, agreement or transaction that would or would be reasonably expected to impede, interfere with, delay, postpone, frustrate, prevent or adversely affect the timely consummation of the Offer, the Merger or any of the transactions contemplated by the Merger Agreement.”

The information set forth in the first paragraph of the Offer to Purchase under the heading the Offer under Section 15 — “Conditions of the Offer” is hereby amended and restated in its entirety to read as follows:

“Capitalized terms used in this “The Offer—Section 15—Conditions of the Offer,” but not defined herein have the respective meanings given to them in the Merger Agreement.

Notwithstanding any other term of the Offer or the Merger Agreement, Purchaser shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating to Purchaser’s obligation to pay for or return tendered Shares promptly after the termination or withdrawal of the Offer), to pay for any Shares tendered pursuant to the Offer and, subject to the terms of the Merger Agreement, may delay the acceptance for payment of, or payment for, Shares or may terminate or amend the Offer, if:

(a)          the Minimum Condition is not satisfied;

(b)          prior to the Expiration Date, the applicable waiting period under the HSR Act in respect of the transactions contemplated by the Merger Agreement has not expired or been terminated (such waiting period expired on August 8, 2022);

[…]”

The information set forth in the Offer to Purchase under the heading the Offer under Section 15 — “Conditions of the Offer” is hereby amended and supplemented to add the following:

“The foregoing conditions are for the sole benefit of Purchaser and Parent and may be asserted by Purchaser or Parent, in whole or in part at any applicable time or from time to time in their sole discretion.  The determination as to whether a condition has been satisfied will be in the reasonable judgment of Purchaser and Parent and, subject to applicable law, will be final and binding on all parties.

The foregoing conditions shall be in addition to, and not a limitation of, the right of Purchaser and Parent to extend, terminate or modify the Offer pursuant to the terms and conditions of the Merger Agreement.  See Section 13 — “The Transaction Documents—The Merger Agreement—Amendment and Waiver” for a description of the conditions which the parties to the Merger Agreement have the right to amend or waive.

All conditions to the Offer must be satisfied or waived as of the Expiration Date, unless extended by Purchaser.  If any condition to the Offer is not satisfied or waived by any scheduled Expiration Date, Purchaser will extend the Offer for successive periods of up to ten Business Days per extension until all of the conditions, including the HSR Condition, are satisfied or waived.  In addition, Purchaser will extend the Offer for any period or periods of time required by any applicable law, or applicable rules, regulations, interpretations or positions of the SEC or its staff.  However (i) if, on the scheduled Expiration Date or any extension thereof, all conditions to the Offer other than the Minimum Condition have been satisfied or waived, Purchaser will only be required to extend the Offer beyond such date for one additional period not to exceed an aggregate of ten Business Days to permit the Minimum Condition to be satisfied, and (ii) in no event will Purchaser be required to extend the Offer beyond the Outside Date.”

The information set forth in the fourth paragraph of the Offer to Purchase under the heading the Offer under Section 16 — “Certain Legal Matters; Regulatory Approvals—Antitrust Compliance” is hereby amended and restated in its entirety to read as follows:

“All conditions to the Offer must be satisfied or waived as of the Expiration Date, unless extended by Purchaser.  If any condition to the Offer is not satisfied or waived by any scheduled Expiration Date, we will extend the Offer for successive periods of up to ten Business Days per extension until all of the conditions are satisfied or waived.  In addition, we will extend the Offer for any period or periods of time required by any applicable law, or applicable rules, regulations, interpretations or positions of the SEC or its staff.  However (i) if, on the scheduled Expiration Date or any extension thereof, all conditions to the Offer other than the Minimum Condition have been satisfied or waived, Purchaser will only be required to extend the Offer beyond such date for one additional period not to exceed an aggregate of ten Business Days to permit the Minimum Condition to be satisfied, and (ii) in no event will Purchaser be required to extend the Offer beyond the Outside Date.”

The information set forth in Schedule I to the Offer to Purchase is hereby amended and supplemented to add the following:

“MEMBERS OF THE BOARD OF MANAGERS AND EXECUTIVE OFFICERS OF AURORA CAPITAL PARTNERS UGP LLC

The name, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each member of the board of managers and executive officer of Aurora Capital Partners UGP LLC, the general partner of Aurora Capital Partners VI L.P., which manages each of the Aurora Funds. are set forth below.  Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to employment with the Aurora Funds or any of their affiliates.  All directors and executive officers listed below are United States citizens.

Item 12 of the Schedule TO is hereby amended and supplemented by adding the exhibits being filed herewith.

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SIGNATURES

After due inquiry and to the best knowledge and belief of the undersigned, each of the undersigned certify that the information set forth in this statement is true, complete and correct.

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Exhibit (d)(10)

July 12, 2022

Raven Buyer, Inc.

c/o Aurora Capital Group

11611 San Vincente Boulevard, Suite 800

Los Angeles, CA 90049

Attention: Matthew Laycock, Andrew Wilson, Matt Asperheim

Gentlemen:

Reference is made to that certain Credit Agreement, dated as of February 1, 2021 (as amended by that certain Incremental Joinder and First Amendment Agreement, dated as of October 1, 2021 and as may be further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Credit Agreement”) by and among, Raven Buyer, Inc., a Delaware corporation (the “Borrower” or “you”), Raven Intermediate, Inc., a Delaware corporation (“Holdings”), Antares Capital LP, as administrative agent for the lenders (in such capacity, the “Agent”) and the several financial institutions form time to time party thereto as lenders. Antares Holdings LP (the “Committed Lender”) hereby (A) commits to provide (directly and/or through one or more of its direct or indirect subsidiaries) to the Borrower (i) a $95,000,000 senior secured incremental term loan facility (the “Incremental Term Loan Facility”) and (ii) a $15,000,000 revolving credit facility (the “Incremental Revolving Credit Facility” and, together with the Incremental Term Loan Facility, the “Incremental Facilities”), (B) agrees to execute an amendment to the Existing Credit Agreement reflecting the terms set forth in the Term Sheet and (C) until the earlier of the Closing Date or the termination of this Commitment Letter in accordance with Section 16, agrees that it shall, together with its controlled affiliates, constitute the Required Lenders (as defined in the Existing Credit Agreement). The Incremental Facilities will be used by the Borrower in connection with the acquisition (the “Acquisition”) of all of the issued and outstanding capital stock, directly or indirectly, of Sharps Compliance Corp., the “Acquired Business”) pursuant to that certain Agreement and Plan of Merger, by and among the Acquired Business, the Borrower, and Holdings (the “Acquisition Agreement”  (the transactions described above, together with the Equity Contribution (as defined in the Term Sheet) are collectively referred to as the “Transaction”).  It is understood and agreed that the Closing Date and the date of consummation of the Acquisition shall be the date the Merger (as defined in the Acquisition Agreement) occurs pursuant to Article II of the Acquisition Agreement. Capitalized terms used in the text of this Commitment Letter (as defined below) without definition have the meanings assigned in the Term Sheet or in the Existing Credit Agreement, as applicable.

 

The Committed Lender’s commitment to provide and/or make available the Incremental Facilities and the agreements of the Commitment Parties to perform the services described herein are subject only to the satisfaction or waiver of the conditions set forth in Schedule I to the Summary of Terms attached hereto as Exhibit A (the “Term Sheet”).  The Term Sheet, together with this letter, as amended, restated, supplemented or otherwise modified in accordance with its terms, are referred to herein as the “Commitment Letter”.  Antares Capital (in its capacity as lead arranger, the “Lead Arranger” and, together with the Committed Lender, the “Commitment Parties”, “we” or “us”) is pleased to act, on such conditions and on the terms specified herein, as sole lead arranger and sole bookrunner for the Incremental Facilities.

It is agreed that Antares Capital (or one of its affiliates or subsidiaries) shall serve as administrative agent under the Incremental Facilities, and that Antares Capital shall have “left side” designation and shall have “left” placement in all marketing materials in connection with each of the Incremental Facilities, and shall appear on the top left and shall hold the leading role and responsibility customarily associated with such “top left” placement.

You hereby represent and warrant (but only to your knowledge with respect to any of the information referred to below that is in connection with or related to the Acquired Business or provided by another person that is not your affiliate) that (a) all written information (other than projections (“Projections”), pro formas, estimates, budgets and other forward-looking information and general economic or industry information (all such non-excluded written information, the “Information”)) that has been or will be made available to any of the Commitment Parties and/or the other lenders under the Incremental Facilities (together with the Committed Lender, the “Lenders”) by you, the Acquired Business or any of your or its respective affiliates (which, for purposes of this Commitment Letter, includes Sponsor) or representatives on your behalf in connection with the Transaction, when furnished and considered as a whole, is or will be, complete and correct in all material respects (after giving effect to any supplements thereto) and does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made, when considered as a whole (after giving effect to all supplements and updates thereto through the date furnished) and (b) the Projections that have been or will be made available to the Commitment Parties by you or any of your affiliates or representatives on your behalf have been or will be prepared in good faith based upon assumptions believed to be reasonable at the time made (it being understood and agreed that financial projections are not to be taken as facts, are not a guarantee of financial performance and are subject to significant uncertainties and contingencies, many of which are beyond your control, and actual results may differ from financial projections and such differences may be material).  You agree that if at any time prior to the Closing Date, any of the representations in the preceding sentence would be incorrect in any material respect if the Information or Projections were being furnished, and such representations were being made, at such time, then you will (or, with respect to Information and Projections related to the Acquired Business or its subsidiaries prior to the Closing Date, use commercially reasonable efforts to) promptly supplement the Information or the Projections, as the case may be, so that such representations will be correct in all material respects (to your knowledge with respect to any information provided to you by the Acquired Business or its subsidiaries prior to the Closing Date or another person that is not your affiliate) under those circumstances.

If the Incremental Facilities close, you hereby agree to pay or cause to be paid (upon presentation of a summary statement in reasonable detail and with respect to amounts to be paid on the Closing Date, presented at least three (3) business days prior to the Closing Date) to the Commitment Parties all reasonable and documented out-of-pocket fees and expenses (including, but not limited to, all reasonable and documented out-of-pocket costs and expenses of one (1) legal counsel and, to the extent necessary, one (1) local counsel in each relevant jurisdiction and one (1) regulatory counsel if reasonably required, in each case, for all Commitment Parties) incurred by them in connection with this Commitment Letter, the fee letter of even date herewith between you, the Lead Arranger and the Committed Lender (the “Fee Letter”), the Transaction, and the Incremental Facilities.

 

You agree that you will not disclose to any third party the contents of this Commitment Letter, the Fee Letter or the Commitment Parties’ involvement with the Committed Lender’s commitment to provide the Incremental Facilities without the Commitment Parties’ prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) other than (a) to Sponsor, its limited partners and those individuals who are your and its respective directors, officers, employees, affiliates, members, partners, stock holders, actual and potential co-investors, attorneys, accountants, auditors, agents or advisors on a confidential basis in connection with the Transaction; provided, that this Commitment Letter (but not the Fee Letter, unless redacted in a manner reasonably satisfactory to the Commitment Parties in their sole discretion to eliminate fees and other economic terms (although such fees and terms may be generically disclosed as part of projections and pro forma information, and in any applicable sources and uses, in each case, prepared in connection with the Transaction)) may also be disclosed to the Acquired Business’ equity holders, directors, officers, employees, affiliates, members, partners, stock holders, co-investors, attorneys, accountants, auditors, agents and advisors, (b) in any legal or judicial proceeding where, in your reasonable judgment, disclosure is required by law or regulations, in your reasonable judgment, as otherwise required by law (in each case, in which you agree, to the extent permitted by law, to inform the Committed Lender and the Lead Arranger, in advance, to the extent lawfully permitted to do so), (c) in connection with the exercise of any remedy or enforcement of any right under this Commitment Letter and the Fee Letter, (d) the Term Sheet (but not the Fee Letter or the contents thereof, other than the existence thereof and the contents thereof as part of Projections, pro formas, and generic disclosure of aggregate sources and uses) may be disclosed to potential Lenders (other than Disqualified Institutions), and (e) the aggregate fee amount may be disclosed in financial statements.  The foregoing restrictions shall cease to apply (except with respect to any economics referred to in the Fee Letter) on the earlier of (i) two (2) years from the date hereof or (ii) the initial funding of the Incremental Facilities.  You agree to inform all such persons who receive information concerning the Commitment Parties, this Commitment Letter or the Fee Letter that such information is confidential and may not be used for any purpose other than in connection with the Transaction and may not be disclosed to any other person.  The Commitment Parties reserve the right to review and approve (such approval not to be unreasonably withheld or delayed), in advance, all materials, press releases, advertisements and disclosures that contain the Committed Lender’s or any of its affiliates’ name or describe the Committed Lender’s financing commitment or the Lead Arranger’s role and activities with respect to the Transaction and the other transactions contemplated hereby.

Each Commitment Party shall, until the earlier of (i) two (2) years from the date hereof or (ii) the initial funding of the Incremental Facilities, treat confidentially in accordance with such persons, as applicable, customary procedures for handling confidential information, all non-public information received by it from you or your affiliates and representatives in connection with the Acquisition and the financing transactions contemplated hereby and only use such information for the purposes of providing the financing and the services and transactions contemplated by this Commitment Letter; provided however that upon the execution and delivery of the Credit Documentation (as defined in the Term Sheet), the provisions of the Credit Documentation shall govern the confidentiality matters described in this paragraph.  Nothing herein shall prevent the Commitment Parties from disclosing any such information (i) with your prior written consent, (ii) subject to the provisions set forth in “Information” herein, to any Lenders or participants or prospective Lenders or participants (other than Disqualified Institutions), (iii) in any legal or judicial proceeding where, in their reasonable judgment, disclosure is required by law or regulations (in which case such Commitment Party shall promptly notify you, in advance, of such requirement to disclose to the extent permitted by law), (iv) upon the request or demand of any regulatory authority having jurisdiction over the Commitment Parties or their respective affiliates (in which case, such Commitment Party shall, except with respect to any audit or examination conducted by bank accountants or any governmental bank regulatory authority exercising examination or regulatory authority and to the extent permitted by law, promptly notify you, in advance, to the extent lawfully permitted to do so), (v) in connection with the proposed transactions and on a confidential basis to the shareholders, financing sources, employees, directors, officers, legal counsel, independent auditors, professionals, advisors and other experts or agents of the Commitment Parties or their respective affiliates on a need-to-know basis who are informed of the confidential nature of such information and are or have been advised of their obligation to keep information of this type confidential, (vi) to any of their respective affiliates (provided, that any such affiliate is advised of its obligation to retain such information as confidential), (vii) to industry trade organizations where such information with respect to the Incremental Facilities is customarily included in league table measurements, (viii) to the extent any such information (x) becomes publicly available other than by reason of a breach of the confidentiality obligations set forth in this paragraph, (y) becomes available to the Commitment Parties on a non-confidential basis from a source other than you or on your behalf and not in violation of any confidentiality agreement or obligation owed to you or (z) was available to the Commitment Parties, as applicable, on a non-confidential basis prior to its disclosure to the Commitment Parties by you or (ix) in protecting and enforcing the Commitment Parties’ rights with respect to this Commitment Letter and the Fee Letter.

 

Regardless of whether the Incremental Facilities close, you agree to (a) indemnify, defend and hold each of the Commitment Parties, each Lender, their respective affiliates and the principals, directors, officers, employees, representatives, agents and third party advisors of each of them (collectively, the “Related Persons” and each Commitment Party, each Lender and each of their respective Related Persons, an “Indemnified Person”), harmless from and against all actual losses, disputes, claims, investigations, litigation, proceedings, expenses (including, but not limited to, attorneys’ fees (limited, in the case of attorneys’ fees to any Indemnified Person, to the same extent set forth in clause (b) below)), damages, and liabilities of any kind to which any Indemnified Person may become subject in connection with this Commitment Letter, the Fee Letter, the Incremental Facilities, the use or the proposed use of the proceeds thereof, the Transaction or any other transaction contemplated by this Commitment Letter (each, a “Claim”, and collectively, the “Claims”), regardless of whether such Indemnified Person is a party thereto (and regardless of whether such matter is initiated by a third party, you, the Acquired Business or any of your or its respective affiliates), and (b) reimburse each Indemnified Person within ten (10) days of a written request from such Indemnified Person for all reasonable and documented out-of-pocket legal and other expenses incurred in connection with investigating, preparing to defend or defending, or providing evidence in or preparing to serve or serving as a witness with respect to, any lawsuit, investigation, claim or other proceeding relating to any of the foregoing (each, an “Expense”) (but limited, in the case of any Expenses, to one (1) counsel to such Indemnified Persons, taken as a whole, one (1) local counsel to such Indemnified Persons, taken as a whole, to the extent reasonably necessary, in each relevant jurisdiction and one (1) regulatory counsel to all such Indemnified Persons, taken as a whole, to the extent reasonably necessary, and, solely, in the event of a conflict of interest, one (1) additional counsel (and, if necessary, one (1) additional regulatory counsel and one (1) local additional counsel in each relevant jurisdiction) to each group of similarly situated affected Indemnified Persons); provided, that no Indemnified Person shall be entitled to indemnity hereunder in respect of any Claim or Expense to the extent that the same is found by a final, non-appealable judgment of a court of competent jurisdiction to have resulted directly from (i) the gross negligence, willful misconduct or bad faith of such Indemnified Person (or any of its Related Persons), (ii) a material breach by such Indemnified Person (or any of its Related Indemnified Persons (as defined below)) of its obligations under this Commitment Letter or the Fee Letter at a time when you have not breached your obligations hereunder in any material respect or (iii) a dispute solely among Indemnified Persons (other than a Claim against any Commitment Party solely in its capacity as Lead Arranger, Agent, bookrunner or any other similar role in connection with this Commitment Letter, the Incremental Facilities, the Transaction or any related transactions contemplated hereby or thereby or any use or intended use of the proceeds of the Incremental Facilities) not arising out of any act or omission on the part of you or your affiliates.

“Related Indemnified Person” of an Indemnified Person means (1) any controlling person or any affiliate of such Indemnified Person, (2) the respective directors, officers, or employees of such Indemnified Person or any of its controlling persons or any of its affiliates and (3) the respective agents, advisors and representatives of such Indemnified Person or any of its controlling persons or any of its affiliates, in the case of this clause (3), acting at the instructions of such Indemnified Person, controlling person or such affiliate (it being understood and agreed that any agent, advisor or representative of such Indemnified Person or any of its controlling persons or any of its affiliates engaged to represent or otherwise advise such Indemnified Person, controlling person or affiliate in connection with the Transactions shall be deemed to be acting at the instruction of such person).

No party hereto or any of their respective affiliates shall be liable for any punitive, exemplary, consequential (including loss of profits) or indirect damages alleged in connection with, arising out of, or relating to, any Claims, this Commitment Letter, the Fee Letter, the Incremental Facilities, the use or the proposed use of the proceeds thereof, the Transaction, or any other transaction contemplated by this Commitment Letter; provided, that nothing contained in this paragraph shall limit your indemnity and expense reimbursement obligations to the extent set forth in the previous paragraph.

Furthermore, you hereby acknowledge and agree that the use of electronic transmission is not necessarily secure and that there are risks associated with such use, including risks of interception, disclosure and abuse.  You agree to assume and accept such risks and hereby authorize the use of transmission of electronic transmissions by the Commitment Parties in a manner consistent with their standard business practice, and agree that neither any Commitment Party nor any of its respective affiliates will have any liability for any damages arising from the use of such electronic transmission systems except to the extent the same is found by a final nonappealable judgment of a court of competent jurisdiction to have arisen from the gross negligence, willful misconduct or bad faith of such Commitment Party or its affiliate.

 

You acknowledge that the Commitment Parties and/or their affiliates may be investing in, or providing debt financing, equity capital or other services to, other companies with which you may have conflicting interests.  You further acknowledge and agree that (a) no fiduciary, advisory or agency relationship between you and any of the Commitment Parties and/or their respective affiliates has been or will be created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether the Commitment Parties and/or their respective affiliates have advised or are advising you on other matters and (b) you will not assert any claim against any of the Commitment Parties and/or their respective affiliates for breach or alleged breach of fiduciary duty and agree that none of the Commitment Parties and/or their respective affiliates shall have any direct or indirect liability to you in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim on behalf of or in right of you, including your stockholders, employees or creditors.  Notwithstanding the foregoing, nothing in this section shall excuse non-compliance by the Commitment Parties of their obligations (including their confidentiality obligations) hereunder.

This Commitment Letter shall not be assignable by you without the prior written consent of the Commitment Parties (and any purported assignment without such consent shall be null and void), and is solely for the benefit of the parties hereto and is not intended to confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the Indemnified Persons.  The Committed Lender may assign its commitments hereunder, in whole or in part, to any of its respective affiliates; provided that, notwithstanding any other provision of this Commitment Letter to the contrary and notwithstanding any assignment by the Committed Lender prior to the closing of the Incremental Facilities, (a) the Committed Lender shall not be relieved or novated from its obligations hereunder (including their obligation to fund the Incremental Facilities on the Closing Date, subject to the satisfaction (or waiver) of all conditions to such obligation) in connection with any assignment or participation of the Incremental Facilities prior to the Closing Date, including its commitments in respect thereof, until after the Closing Date and (b) the Committed Lender shall retain exclusive control over all rights and obligations with respect to its commitments in respect of the Incremental Facilities, including all rights with respect to consents, modifications, supplements and amendments, until the Closing Date has occurred, unless, in the case of each of clauses (a) and (b) above, you shall otherwise consent in writing.  This Commitment Letter may not be amended, modified or waived except in a written instrument signed by you and the Committed Lender.

This Commitment Letter may not be amended or waived except in a written instrument signed by you and the Commitment Parties.

This Commitment Letter may be executed in counterparts, each of which shall be deemed an original and all of which counterparts shall constitute one and the same document.  Delivery of an executed signature page of this Commitment Letter by facsimile or electronic (including “PDF”) transmission shall be effective as delivery of a manually executed counterpart hereof.  No posting to any E-System shall be denied legal effect merely because it is made electronically and each party hereto agrees not to contest the validity or enforceability of any posting on any E-System or E-Signature merely because it is made electronically. The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to this Commitment Letter or any document to be signed in connection with this Commitment Letter and the transactions contemplated hereby shall be deemed to include electronic signatures, which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

The law of the State of New York shall govern all matters arising out of, in connection with or relating to this Commitment Letter, including, without limitation, its validity, interpretation, construction, performance and enforcement and any claims sounding in contract law or tort law arising out of the subject matter hereof; provided, however, that (a) the interpretation of the definition of “Material Adverse Effect” (and whether or not a “Material Adverse Effect” has occurred, as defined in the Acquisition Agreement (as defined in the Term Sheet)), (b) the determination of the accuracy of any Specified Acquisition Agreement Representation and whether as a result of any inaccuracy of any Specified Acquisition Agreement Representation there has been a failure of a condition precedent to your obligation to consummate the Acquisition or such failure gives you the right to terminate your obligations (or to refuse to consummate the Acquisition) under the Acquisition Agreement and (c) the determination of whether the Acquisition has been consummated in accordance with the terms of the Acquisition Agreement shall, in each case, be governed by, and construed and interpreted in accordance with, the internal law of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.

 

The parties hereto consent and agree that the state or federal courts located in New York County, State of New York, shall have exclusive jurisdiction to hear and determine any claims or disputes between or among any of the parties hereto pertaining to this Commitment Letter, the Fee Letter, the Incremental Facilities, the Transaction, any other transaction relating hereto or thereto, and any investigation, litigation, or proceeding in connection with, related to or arising out of any such matters; provided, that the parties hereto acknowledge that any appeal from those courts may have to be heard by a court located outside of such jurisdiction.  The parties hereto expressly submit and consent in advance to such jurisdiction in any action or suit commenced in any such court, and hereby waive any objection, which each of the parties may have based upon lack of personal jurisdiction, improper venue or inconvenient forum.

THE PARTIES HERETO, TO THE EXTENT PERMITTED BY LAW, WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF, IN CONNECTION WITH OR RELATING TO, THIS COMMITMENT LETTER, THE FEE LETTER, THE INCREMENTAL FACILITIES, THE TRANSACTION AND ANY OTHER TRANSACTION RELATED HERETO OR THERETO.  THIS WAIVER APPLIES TO ANY ACTION, SUIT OR PROCEEDING WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE.

The provisions of this Commitment Letter set forth under this heading and the headings “Information”, “Expenses”, “Confidentiality”, “Indemnity”, “Sharing Information; Absence of Fiduciary Relationship”, “Assignments and Amendments”, “Counterparts and Governing Law”, “Venue and Submission to Jurisdiction” and “Waiver of Jury Trial” shall survive the termination or expiration of this Commitment Letter and shall remain in full force and effect regardless of whether the Incremental Facilities close or the Credit Documentation shall be executed and delivered; provided, that if the Incremental Facilities close and the Credit Documentation shall be executed and delivered, the provisions under the heading “Expenses”, “Confidentiality”, “Indemnity”, and “Sharing Information; Absence of Fiduciary Relationship” shall be superseded and deemed replaced by the terms of the Credit Documentation governing such matters to the extent covered thereby.

This Commitment Letter and the Fee Letter supersede any and all discussions, negotiations, understandings or agreements, written or oral, express or implied, between or among the parties hereto and their affiliates as to the subject matter hereof.

This Commitment Letter and the Fee Letter each constitutes a legal, valid and binding obligation, enforceable against each of the parties hereto and thereto in accordance with their respective terms, it being acknowledged and agreed that the funding of the Incremental Facilities on the Closing Date is not subject to any condition (express or implied), including compliance with the terms of the Commitment Letter or the Credit Documentation, other than the conditions set forth in Schedule I to the Term Sheet including the execution and delivery of the Credit Documentation by the Borrower and the Guarantors (as defined in the Term Sheet) in a manner consistent with this Commitment Letter (including the Documentation Principles and the “Funds Certain Provisions”) and upon satisfaction or waiver of such conditions, the initial funding under the Incremental Facilities shall occur.

The Commitment Parties hereby notify you that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”) and 31 C.F.R.

§1010.230 (the “Beneficial Ownership Regulation”), each Lender may be required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes the name, address, tax identification number and other information regarding the Borrower and each Guarantor that will allow such Lender to identify the Borrower and each Guarantor in accordance with the PATRIOT Act and the Beneficial Ownership Regulation.  This notice is given in accordance with the requirements of the PATRIOT Act and is effective as to each Lender.

 

Please indicate your acceptance of the terms hereof and of the Fee Letter by signing in the appropriate space below and in the Fee Letter and returning to the Commitment Parties such signature pages by 11:59 p.m., New York time on July 12, 2022.  Unless extended in writing by the Commitment Parties, the commitments and agreements of the Commitment Parties contained herein (subject to the provisions under the heading “Survival”) shall automatically expire on the first to occur of (a) the date and time referred to in the previous sentence unless you shall have executed and delivered a copy of this Commitment Letter and the Fee Letter as provided above, (b) 11:59 p.m. New York time on November 12, 2022 (the “End Date”), (c) execution and delivery of the Credit Documentation and funding of the Incremental Facilities, (d) consummation of the Acquisition without the use of the Incremental Facilities, and (e) after the execution of the Acquisition Agreement and prior to the consummation of the Acquisition, the date, if any, on which the Acquisition Agreement is terminated in accordance with its terms (provided, that the termination of any commitment pursuant to this sentence including in the event that the Acquisition is consummated and any Commitment Party breaches its obligations to provide the portion of the Incremental Facilities committed to be provided by it under this Commitment Letter, does not prejudice your rights and remedies in respect of any breach of this Commitment Letter).

[Remainder of Page Intentionally Left Blank; Signature Pages Follow]

 

Sincerely,

Signature page to Commitment Letter

 

AGREED AND ACCEPTED

AS OF THE DATE FIRST WRITTEN ABOVE:

Signature page to Commitment Letter

 

Summary of Terms

July 12, 2022

Capitalized terms used herein without definition shall have the meanings assigned to such terms in the commitment letter referenced above or, if not defined therein, in the Existing Credit Agreement.

Incremental Term Loan Facility:  A senior secured incremental term loan facility (the “Incremental Term Loan Facility” and the loans thereunder, the “Incremental Term Loan”) of $95,000,000 will be advanced to the Borrower in one drawing on the Closing Date (as defined below). The principal amount of the Incremental Term Loan shall be paid in equal quarterly installments in arrears, commencing on the last day of the first full fiscal quarter ending after the Closing Date.  Each such installment shall be in an amount equal to 0.25% of the initial outstanding amount thereof on the Closing Date with the remaining outstanding amount due on the maturity date of February 1, 2027. The terms of the Incremental Term Loan Facility shall be the same as the terms applicable to the existing Term Loans except as otherwise set forth herein or agreed between the Borrower and the Lead Arranger, and the Incremental Term Loan Facility shall constitute a separate class from the Term Loans made on the Closing Date (in this instance only, as defined in the Existing Credit Agreement).  Amounts repaid on the Incremental Term Loan Facility may not be reborrowed.

Incremental Revolving Credit Facility: A senior secured incremental revolving credit facility of $15,000,000 (the “Incremental Revolving Credit Facility” and the loans thereunder, the “Incremental Revolving Credit Loans”), which shall be in the form of an increase to the existing Revolving Credit Facility, and under which borrowings may be made from time to time during the period from the Closing Date until the maturity date of February 1, 2027 subject to terms and conditions consistent with the existing Revolving Credit Facility.

 

“Adjusted Term SOFR Rate” means for (a) an Interest Period of one month, an interest rate per annum equal to (i) the Term SOFR Rate for such Interest Period, plus (ii) [***]%, (b) an Interest Period of three months, an interest rate per annum equal to (i) the Term SOFR Rate for such Interest Period, plus (ii) [***]% and (c) an Interest Period of six months, an interest rate per annum equal to (i) the Term SOFR Rate for such Interest Period, plus (ii) [***]%; provided that in the case of each of the foregoing clauses (a), (b) and (c), if the Adjusted Term SOFR Rate as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor.

“CME Term SOFR Administrator” means CME Group Benchmark Administration Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator of the Term SOFR Rate selected by the Administrative Agent in its reasonable  discretion).

 

“Floor” means [***] bps per annum.

“Term SOFR Rate” means the forward-looking Secured Overnight Financing Rate term rate for a tenor comparable to the applicable Interest Period published by the CME Term SOFR Administrator at approximately 4:00 p.m., Chicago time, two U.S. government securities business days prior to the commencement of the applicable Interest Period.

The “Applicable Margin” means:

 

Upon any voluntary prepayment of the Incremental Term Loans, any mandatory prepayment of the Incremental Term Loans resulting from the incurrence of non-permitted indebtedness or any mandatory assignment of the Incremental Term Loans pursuant to any “yank-a-bank” provisions pertaining to non-consenting Lenders, Borrower shall pay a premium equal to (i) [***]% of the prepaid or assigned amount of the Incremental Term Loans, if such prepayment or assignment occurs on or prior to the [***] anniversary of the Closing Date and (ii) [***]% of the prepaid or assigned amount of the Incremental Term Loans, if such prepayment or assignment occurs after the [***] anniversary of the Closing Date; provided, that no prepayment premium shall be required in connection with a prepayment of the Incremental Term Loans in connection with a change of control, initial public offering or a Transformative Acquisition or a prepayment of the Incremental Term Loans made from internally generated operating cash flow.

Notwithstanding the foregoing, no such prepayment premium shall be required to be paid to a lender, agent or lead arranger under the Incremental Facilities in connection with a refinancing of the Incremental Facilities where such lender, agent or lead arranger is appointed a similar title under such refinancing.

 

The initial drafts of the Credit Documentation are to be drafted by Latham & Watkins LLP, as counsel to the Agent.

 

The definition of “Consolidated EBITDA” shall be amended to include [***].

 

SCHEDULE I

to

Summary of Terms

The availability of each of the Incremental Facilities set forth in the Commitment Letter shall be subject to the satisfaction or waiver of only the following conditions:

“Permitted Surviving Debt” shall mean collectively, together with any replacements, extensions and renewals of any such indebtedness that matures or will be terminated on or prior to the Closing Date: (i) indebtedness outstanding on the date of, and permitted to be incurred under, the Acquisition Agreement and, in each case, permitted to remain outstanding after the Closing Date under the Existing Credit Agreement, (ii) ordinary course capital leases, purchase money indebtedness, equipment financings and short-term working capital facilities and (iii) certain other indebtedness that Borrower and the Commitment Parties reasonably agree may remain outstanding after the Closing Date.

 

 

Notwithstanding anything in the Term Sheet, the Commitment Letter, the Fee Letter or the Credit Documentation to the contrary,

(i)          the only representations and warranties in the Credit Documentation the accuracy of which will be a condition to the availability and funding of the Incremental Facilities on the Closing Date will be:

(A)          such representations and warranties made by the Acquired Business in the Acquisition Agreement as are material to the interests of the Antares Lender, but only to the extent that you or your affiliates have the right to terminate your or your affiliates’ obligations under the Acquisition Agreement (or the right not to consummate the Acquisition pursuant to the Acquisition Agreement) as a result of a failure of such representations and warranties to be true and correct as of the Closing Date (except to the extent relating to an earlier date, in which case as of such earlier date) (the “Specified Acquisition Agreement Representations”); and

(B)          the Specified Representations (as defined below); and

(ii)          the terms of the Credit Documentation will not impair availability or funding of the Incremental Facilities on the Closing Date if the conditions expressly set forth in this Schedule I are satisfied or waived (it being understood that, to the extent a perfected security interest in any Collateral (the security interest in respect of which cannot be perfected by means of the filing of a UCC financing statement or delivery of possession of capital stock or other certificated security in respect of the Borrower or wholly-owned domestic subsidiary of the Borrower and the Guarantors) is not able to be provided on the Closing Date after Borrower’s use of commercially reasonable efforts to do so, the perfection of such security interest in such Collateral will not constitute a condition precedent to the availability of the Incremental Facilities on the Closing Date, but a security interest in such Collateral will be required to be perfected after the Closing Date pursuant to arrangements to be mutually agreed between Borrower and the Agent); provided that nothing herein shall limit the applicability of the individual conditions to closing expressly set forth herein except to the extent expressly stated to be subject to this paragraph.

For purposes hereof, “Specified Representations” mean the representations and warranties set forth (or incorporated by reference) in the Term Sheet with respect to the Borrower and the Guarantors relating to legal existence, organizational power and authority in each case, related to the entering into, borrowing under, guaranteeing under, performance of, and granting of security interests in the Collateral, pursuant to the applicable Credit Documentation; the authorization, execution and delivery, and legality, validity and enforceability, of the Credit Documentation; the creation, perfection and priority of liens (subject to permitted liens to be set forth in the Credit Documentation and to the limitations on perfection set forth above); Federal Reserve margin regulations; the Investment Company Act; the use of proceeds of the Incremental Facilities not violating the Patriot Act, OFAC, FCPA or any other anti-terrorism, sanctions, anti-money laundering and anti-corruption laws; solvency of Holdings and its subsidiaries on a consolidated basis on the Closing Date in form and substance substantially consistent with the form attached hereto as Annex I; and no conflict with charter documents of the Borrower or the Guarantors as it relates to the Credit Documentation.  For the avoidance of doubt, the foregoing provisions of this paragraph are sometimes referred to as the “Funds Certain Provisions”.

 

[Form of] Solvency Certificate

[●]

This certificate (this “Solvency Certificate”) is being executed and delivered pursuant to Section [●] of that certain [●] (the “Amendment”; the terms defined therein being used herein as therein defined).

I, [●], the [chief financial officer][chief executive officer] of Holdings, in such capacity and not in an individual capacity, hereby certify on the date hereof as follows:

I am familiar with the businesses and assets of Holdings and its Subsidiaries, taken as a whole, and am duly authorized to execute this Solvency Certificate on behalf of Holdings pursuant to Amendment; and

As of the date hereof and immediately after giving effect to the Transaction and the incurrence of the indebtedness and obligations being incurred in connection with the Amendment and the Transaction, that, (i) the sum of the debt (including contingent liabilities) of Holdings and its Subsidiaries, taken as a whole, does not exceed the fair value on a going concern basis of the present assets of Holdings and its Subsidiaries, taken as a whole; (ii) the capital of Holdings and its Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of Holdings and its Subsidiaries, taken as a whole, contemplated as of the date hereof; and (iii) Holdings and its Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to generally pay such debt as they mature in the ordinary course of business.  For the purposes hereof, the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.  For the purposes of making any determination pursuant to this paragraph, the Incremental Facilities shall be deemed to mature on the stated schedule set forth in the Credit Agreement (without giving effect to any acceleration or mandatory prepayment thereof).

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IN WITNESS WHEREOF, I have executed this Solvency Certificate on the date first written above.

 

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Exhibit 107

Calculation of Filing Fee Tables

SC TO-T

(Form Type)

Sharps Compliance Corp.

(Name of Subject Company – Issuer)

Raven Houston Merger Sub, Inc.

(Names of Filing Persons — Offeror)

Raven Buyer, Inc.

(Names of Filing Persons — Parent of Offeror)

Table 1: Transaction Valuation

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