Dynamex Inc. (NASDAQ: DDMX) (the “Company”) announced today that, on December 6, 2010, the party that was previously designated as an “excluded party” (“Takeover Party”), as such term is defined in the Agreement and Plan of Merger, dated as of October 1, 2010, by and among the Company, DashNow Holding Corp., a Delaware corporation and an affiliate of Greenbriar Equity Group LLC (“Parent”), and DashNow Acquisition Corp., a Delaware corporation (“Merger Sub”), as amended by Amendment No. 1 to the Agreement and Plan of Merger, dated November 30, 2010, by and among the Company, Parent and Merger Sub (as amended, the “Current Merger Agreement”), submitted a formal binding offer for the acquisition of the Company in which the Company’s stockholders would receive $25.00 per share in cash (the “Takeover Proposal”). The Takeover Proposal included an Agreement and Plan of Merger, which was executed by the Takeover Party and one of its affiliates (the “Proposed Merger Agreement”). The Takeover Proposal expires upon certain events, including the Company’s failure to accept, execute and deliver the Proposed Merger Agreement to the Takeover Party by 11:59 a.m.., New York City time, on December 14, 2010.
On December 7, 2010, the Company’s board of directors determined, in accordance with the terms of the Current Merger Agreement, that the Takeover Proposal constitutes a “superior proposal” as such term is defined in the Current Merger Agreement and that a failure to enter into the Proposed Merger Agreement would violate the directors’ fiduciary duties to the Company’s stockholders under applicable law (the “Determination”). In making this Determination, the Company’s board of directors consulted with its financial advisor and outside legal counsel.
Also on December 7, 2010, the Company gave written notice (the “Notice”) to Parent of the Determination and the Company’s intention, subject to the terms of the Current Merger Agreement, to enter into the Proposed Merger Agreement. Pursuant to the terms of the Current Merger Agreement, the Company is required to negotiate in good faith with Parent for a period of four business days after the business day that the Notice is received by Parent in accordance with the terms of the Current Merger Agreement to enable Parent to revise the terms of the Current Merger Agreement and related agreements such that the revisions would cause the Takeover Proposal to no longer constitute a “superior proposal” as such term is defined in the Current Merger Agreement. If Parent does not favorably revise the terms of the Current Merger Agreement, the Company expects, promptly after the expiration of the four business day negotiating period, to send a notice of termination to Parent terminating the Current Merger Agreement effective immediately and to enter into the Proposed Merger Agreement with the Takeover Party. In such event, the Company would be required to pay to Parent a break-up fee in the amount of $7,729,106, which payment would be made prior to or concurrently with the termination of the Current Merger Agreement.