Item 1.02 Termination of a Material Definitive Agreement.
On March 24, 2020, in connection with the transactions contemplated by the
Merger Agreement, Instructure terminated and repaid in full all outstanding
obligations due under that certain Second Amended and Restated Loan and Security
Agreement, dated as of June 22, 2017 (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement"), by and among Instructure,
Silicon Valley Bank and the other parties thereto.
Item 2.01 Completion of Acquisition or Disposition of Assets.
Pursuant to the Merger Agreement, on February 24, 2020, Purchaser commenced a
tender offer (the "Offer") to purchase each issued and outstanding share of
common stock of Instructure, $0.0001 par value per share (collectively, the
"Shares"), at an offer price of $49.00 per Share net to the seller thereof in
cash, without interest and subject to any withholding taxes (the "Offer Price")
upon the terms and subject to the conditions set forth in the Offer to Purchase,
dated as of February 24, 2020 (together with any amendments and supplements
thereto, the "Offer to Purchase"), and in the related Letter of Transmittal, as
amended and supplemented.
The Offer and any withdrawal rights thereunder expired one minute following
11:59 p.m., Eastern Time, on March 20, 2020 (the "Expiration Date") and was not
extended. Computershare Trust Company, N.A., the depositary for the Offer (the
"Depositary"), has advised Parent and Purchaser that, as of the Expiration Date,
an aggregate of 24,828,913 Shares (not including 7,802,215 Shares tendered
pursuant to guaranteed delivery procedures that have not yet been "received" (as
defined by Section 251(h)(6) of the General Corporation Law of the State of
Delaware (the "DGCL")) by the Depositary in the Offer) had been validly tendered
and not validly withdrawn pursuant to the Offer, which tendered Shares represent
approximately 64.4% of the aggregate voting power of the Shares then
outstanding. All Offer conditions having been satisfied or waived as of the
Expiration Date, Purchaser accepted for payment all Shares validly tendered and
not validly withdrawn pursuant to the Offer, and payment for such Shares will be
promptly made to the Depositary, which will transmit such payments to tendering
Instructure stockholders whose Shares have been accepted for payment, in
accordance with the terms of the Offer.
Following consummation of the Offer, the remaining conditions to the Merger were
satisfied and, on March 24, 2020, pursuant to the terms of the Merger Agreement
and in accordance with Section 251(h) of the DGCL, Purchaser merged with and
into Instructure (the "Merger") with Instructure continuing as the surviving
corporation and an indirect wholly owned subsidiary of Parent (the "Surviving
Corporation"). In the Merger, each Share that was issued and outstanding
immediately prior to the effective time of the Merger (the "Effective Time")
(other than Shares owned by Parent, Purchaser, Instructure as treasury stock or
any direct or indirect wholly owned subsidiary of Parent or Instructure, or
Shares as to which the holder thereof has properly and validly exercised their
statutory rights of appraisal in respect of such Shares in accordance with
Section 262 of the DGCL) and not validly tendered and accepted pursuant to the
Offer was automatically converted into the right to receive the Offer Price,
without interest thereon.
In addition, pursuant to the Merger Agreement, at the Effective Time, the equity
awards granted under Instructure's equity incentive plans, including options to
purchase Shares and restricted stock unit awards covering Shares were cancelled
and converted into cash consideration equal to $49.00 multiplied by the number
of vested shares subject to the equity award (less the applicable per share
exercise price of those vested shares, with respect to any options), subject to
any required tax withholdings, payable shortly after the closing of the Merger.
Equity awards that were outstanding and unvested as of immediately before the
. . .
Item 3.01 Notice of Delisting or Failure to Satisfy a Continuing Listing Rule or
Standard; Transfer of Listing.
On March 24, 2020 in contemplation of the consummation of the Merger,
Instructure requested the New York Stock Exchange ("NYSE") suspend trading of
the Shares effective at 9:00 a.m., Eastern Time. Prior to market open on
March 24, 2020, Instructure notified NYSE of the consummation of the Merger and
requested that NYSE file with the SEC a Form 25 Notification of Removal from
Listing and/or Registration to delist and deregister the Shares under
Section 12(b) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Instructure intends to file with the SEC a certification on Form 15 under
the Exchange Act, requesting the termination or suspension, as the case may be,
of Instructure's reporting obligations under Sections 13 and 15(d) of the
Exchange Act with respect to the Shares. The information set forth in Item 2.01
is incorporated herein by reference.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in the Introductory Note and Items 2.01, 3.01, 5.01
and 5.03 is incorporated herein by reference.
Item 5.01. Change in Control of Registrant.
The information set forth in the Introductory Note and Item 2.01 is incorporated
herein by reference.
As a result of the consummation of the Offer and the Merger, there was a change
in control of Instructure, and Thoma Bravo, as the ultimate parent of Parent,
acquired control of Instructure.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
In connection with the Merger, each of the directors of Instructure, Joshua
Coates, Steven A. Collins, William M. Conroy, Ellen Levy, Kevin Thompson and
Lloyd G. Waterhouse, resigned as directors of the board of directors of
Instructure (the "Board") and from all committees of the Board on which such
directors served, effective as of the Effective Time. In addition, Joshua Coates
(effective March 24, 2020) and Steven Kaminsky (effective March 25, 2020)
separated from Instructure. Each of Messrs. Coates and Kaminsky are entitled to
receive payments in accordance with the terms of the previously disclosed
Company Officer Change in Control Severance Benefit Plan.
In accordance with the terms of the Merger Agreement, the directors and
executive officers of Purchaser immediately prior to the Effective Time, which
consisted of Holden Spaht and Brian Jaffee, became the directors and executive
officers of Instructure immediately after the Effective Time. Biographical and
other information with respect to the new directors and executive officers of
Instructure is set forth in Schedule I to the Offer to Purchase, a copy of which
is attached as Exhibit (a)(1)(A) to the Tender Offer Statement on Schedule TO
filed with the SEC by Thoma Bravo, Parent and Purchaser on February 24, 2020
(together with any amendments and supplements thereto), which is incorporated
herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
At the Effective Time, in connection with the consummation of the Merger, the
certificate of incorporation and bylaws attached hereto as Exhibits 3.1 and 3.2,
respectively, became the certificate of incorporation and bylaws of Instructure.
The information set forth in Item 2.01 is incorporated herein by reference.
Item 7.01 Regulation FD Disclosure.
On March 24, 2020, Thoma Bravo and Instructure issued a joint press release
announcing the completion of the Offer and the Merger. A copy of the press
release is attached hereto as Exhibit 99.1 and is incorporated herein by
reference.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit
Number Exhibit Description
2.1* Amended and Resated Agreement and Plan of Merger, dated as of
February 17, 2020, by and among Instructure, Inc., Instructure
Holdings, LLC (formerly known as PIV Purchaser,
LLC) and PIV Merger Sub, Inc. (incorporated by reference to Exhibit
2.1 of the Current Report on Form 8-K filed with the SEC on
February 18, 2020).
3.1 Amended and Restated Certificate of Incorporation of Instructure,
Inc., dated as of March 24, 2020.
3.2 Amended and Restated Bylaws of Instructure, Inc.
99.1 Joint Press Release, dated March 24, 2020.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
* Schedules omitted pursuant to Item 601 of Regulation S-K. The Company agrees
to furnish supplementally a copy of any omitted schedule to the SEC upon
request.
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