relationships that existed during the two years prior to the date of this opinion or that are mutually understood to be contemplated in which any compensation was received or is intended to be received as a result of the relationship between Mirus any party to the Transaction. In 2013, the Company paid Mirus a total of $135,000 on a retainer basis for financial advisory services relating to exploring the possible sale of the Company’s Optics segment. Such engagement was terminated in 2013.
In addition, the Company has agreed to reimburse Mirus for its reasonable and documented out-of-pocket expenses (including attorneys’ fees, expenses and disbursements) incurred in connection with, and to indemnify Mirus and related persons against certain liabilities arising out of, its engagement, including liabilities arising under the Federal securities laws. Mirus may provide financial or other services to the Company in the future and in connection with any such services Mirus may receive compensation.
The preparation of the fairness opinion was a complex process and is not necessarily susceptible to partial analysis or summary description. Nevertheless, the following is a brief summary of the fairness opinion, subject to the assumptions, qualifications, and limitations set forth therein, that the cash consideration to be paid in the Transaction is fair, from a financial point of view, to the Company’s unaffiliated stockholders. The opinion of Mirus addresses only the fairness, from a financial point of view, of the cash consideration to be paid in the Transaction to the Company’s unaffiliated stockholders. Mirus was not requested to opine as to, and its opinion does not address:
•
the underlying business decision of the Board of Directors, the Special Committee, the Company or its stockholders, or any other party to proceed with or effect the Transaction;
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the fairness of any portion or aspect of the Transaction not expressly addressed in its opinion;
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the fairness of any portion or aspect of the Transaction to the holders of any class of securities, creditors or other constituencies of the Company, or any other party other than the Company’s unaffiliated stockholders as set forth in its opinion;
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the relative merits of the Transaction as compared to any alternative business strategies that might exist for the Company or the effect of any other transaction in which the Company might engage;
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the tax or legal consequences of the proposed Transaction to either the Company, its stockholders, or any other party;
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how any stockholder should act or vote, as the case may be, with respect to the Transaction; or
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the solvency, creditworthiness, or fair value of the Company or any other participant in the Transaction under any applicable laws relating to bankruptcy, insolvency, or similar matters.
Furthermore, no opinion, counsel, or interpretation was intended with respect to matters that require legal, regulatory, accounting, insurance, tax, or other similar professional advice.
In connection with its opinion, Mirus made such reviews, analyses, and inquiries as it deemed necessary and appropriate under the circumstances. Among other things, Mirus has:
(1)
Reviewed a draft of this proxy statement provided on April 29, 2019;
(2)
Reviewed and analyzed certain publicly available financial and other data, including the Company’s Annual Reports on Forms 10-K for the three fiscal years ended September 30, 2016 through September 30, 2018 and the Company’s Quarterly Reports on Form 10-Q for the three-month periods ended December 31, 2017, March 31, 2018, June 30, 2018, and December 31, 2018.
(3)
Reviewed and analyzed certain non-public historical financial and operating data relating to the Company, prepared and made available to Mirus by the management of the Company;
(4)
Reviewed and analyzed certain non-public projected financial and operating data relating to the Company, prepared and made available to Mirus by the management of the Company;
(5)
Conducted discussions with members of the senior management of the Company with respect to the business prospects and financial outlook the Company;