On October 3, 2022, VMware, Inc., a Delaware corporation (the “Company” or “VMware”), filed with the Securities and Exchange Commission (the “SEC”) a definitive proxy statement/prospectus (the “Definitive Proxy Statement/Prospectus”) with respect to the special meeting of the VMware stockholders scheduled to be held on November 4, 2022 to, among other things, vote on a proposal to approve the previously announced acquisition of VMware by Broadcom Inc., a Delaware corporation (“Broadcom”), pursuant to that certain Agreement and Plan of Merger, dated as of May 26, 2022 (such agreement, as it may be amended from time to time, the “Merger Agreement”), by and among VMware, Broadcom, Verona Holdco, Inc., a Delaware corporation and a wholly owned subsidiary of the Company (“Holdco”), Verona Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Holdco (“Merger Sub 1”), Barcelona Merger Sub 2, Inc., a Delaware corporation and a wholly owned subsidiary of Broadcom (“Merger Sub 2”), and Barcelona Merger Sub 3, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of Broadcom (“Merger Sub 3”), pursuant to which, upon the terms and subject to the conditions of the Merger Agreement, (i) Merger Sub 1 will be merged with and into the Company (the “First Merger”), with the Company continuing as the surviving corporation in the First Merger (the “Surviving Corporation”) and becoming a wholly owned subsidiary of Holdco; (ii) following the First Merger, the Surviving Corporation will be converted from a Delaware corporation into a Delaware limited liability company (the “Conversion”); (iii) following the Conversion, Merger Sub 2 will be merged with and into Holdco (the “Second Merger”), with Holdco continuing as the surviving company (the “Holdco Surviving Company”) and becoming a wholly owned subsidiary of Broadcom; and (iv) following the Second Merger, the Holdco Surviving Company will be merged with and into Merger Sub 3 (the “Third Merger,” and together with the First Merger, the Conversion and the Second Merger, the “Transactions”), with Merger Sub 3 continuing as the surviving limited liability company and as a wholly owned subsidiary of Broadcom. The registration statement on Form S-4 filed with the SEC by Broadcom on July 14, 2022, which included a proxy statement/prospectus with respect to the special meeting of the VMware stockholders, was declared effective by the SEC on October 3, 2022.
As previously disclosed in the Definitive Proxy Statement/Prospectus, five complaints have been filed as individual actions in the United States District Court for the Southern District of New York and one complaint has been filed as an individual action in the United States District Court for the Northern District of California. The complaints are captioned as follows: (1) Stein v. VMware, Inc., et al., 22-cv-06307 (filed July 25, 2022); (2) O’Dell v. VMware, Inc., et al., 22-cv-06352 (filed July 26, 2022); (3) Whitfield v. VMware, Inc., et al., 22-cv-06527 (filed August 1, 2022); (4) Waterman v. VMware, Inc., et al., 22-cv-06533 (filed August 2, 2022); (5) Laufer v. VMware, Inc., et al., 22-cv-5146 (filed September 9, 2022); and (6) Chapman v. VMware, Inc., et al., 22-cv-7735 (filed September 11, 2022) (collectively, the “Prior Complaints”). Additionally, on October 6, 2022, a lawsuit entitled Garfield v. Nicole Anasenes, et al., 22-CIV-04118, was filed in the Superior Court of the State of California in and for the County of San Mateo (the “Garfield Complaint”), and on October 19, 2022, a lawsuit entitled Scott v. VMware, Inc., et al., 22-cv-01372, was filed in the United States District Court for the District of Delaware (the “Scott Complaint,” and together with the Garfield Complaint and the Prior Complaints, the “Complaints”). The Complaints generally allege that the proxy statement/prospectus misrepresents and/or omits certain purportedly material information. The Complaints assert violations of Sections 14(a) and 20(a) of the Exchange Act and Rule 14a-9 promulgated thereunder, or similar statutory and common law claims under California law, against VMware and the members of the VMware board of directors. The Garfield Complaint also names Broadcom as a defendant. The Complaints seek, among other things: an injunction enjoining the consummation of the transactions; direction that a registration statement is disseminated, including certain additional information, rescission or rescissory damages in the event the transactions are consummated; declaration that defendants violated Section 14(a) and/or 20(a) of the Exchange Act, as well as SEC Rule 14a-9 promulgated thereunder; direction that defendants account for all damages suffered as a result of any misconduct; costs of the action, including plaintiffs’ attorneys’ fees and experts’ fees; and other relief the court may deem just and proper. In addition to the Complaints, beginning on July 20, 2022, certain purported stockholders of VMware sent demand letters (the “Demands”, and together with the Complaints, the “Matters”) alleging similar deficiencies regarding the disclosures made in the Definitive Proxy Statement/Prospectus, and seeking additional disclosures to address those purported deficiencies.
While VMware believes that the disclosures set forth in the Definitive Proxy Statement/Prospectus comply fully with all applicable law and denies the allegations in the Matters described above, in order to moot the plaintiffs’ disclosure claims, avoid nuisance and possible expense and business delays, and provide additional information to its stockholders, VMware has determined voluntarily to supplement certain disclosures in the Definitive Proxy
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