Item 1.01. Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
The Merger Agreement provides that, among other things and on the terms and
subject to the conditions of the Merger Agreement, (1) Merger Sub will merge
with and into the Company (the "Merger"), with the Company surviving the Merger
as a wholly owned subsidiary of Parent, and (2) at the effective time of the
Merger (the "Effective Time"), each issued and outstanding share of common stock
of the Company, par value
The Board of Directors of the Company has unanimously approved the Merger Agreement and the transactions contemplated thereby and resolved to recommend that the Company's stockholders adopt the Merger Agreement.
Treatment of Company Equity Awards
At the Effective Time, (1) each stock option of the Company ("Company Option") that is unexercised, vested (or that vests automatically solely as a result of the transaction contemplated by the Merger Agreement) and outstanding as of immediately prior to the Effective Time will be cancelled and converted into the right to receive an amount in cash, without interest and subject to applicable withholding taxes, equal to the excess, if any, of the Merger Consideration over the per share exercise price of such vested Company Option, multiplied by the number of shares of Company Common Stock for which such vested Company Option has not been exercised as of the Effective Time and (2) each Company Option that is unexercised, unvested and outstanding as of immediately prior to the Effective Time will be canceled and replaced with a right to receive an amount in cash, without interest and subject to applicable withholding taxes, equal to the excess, if any, of the Merger Consideration over the per share exercise price of such unvested Company Option, multiplied by the number of shares of Company Common Stock for which such unvested Company Option has not been exercised as of the Effective Time, which cash amount will continue to vest on substantially the same terms and conditions as applied to the replaced Company Option, subject to the holder's continued employment. All Company Options with a per share exercise price equal to or greater than the Merger Consideration will be canceled for no consideration.
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At the Effective Time, (1) each restrictive stock unit of the Company ("Company
RSU") that is vested (or that vests automatically solely as a result of the
Merger) and a portion of each Company RSU that would have vested on or prior to
At the Effective Time, each performance-based restricted stock unit of the
Company ("Company PSU"), whether vested or unvested, that is outstanding as of
immediately prior to the Effective Time will be canceled and converted into the
right to receive a cash payment, without interest and subject to applicable
withholding taxes, equal to the number of shares of Company Common Stock subject
to such Company PSU as of immediately prior to the Effective Time (generally
determined based on the greater of target performance and actual performance,
with actual performance determined pursuant to the terms of the Company PSU),
multiplied by the Merger Consideration. The Company PSUs granted to the
Company's Chief Executive Officer on
Conditions to the Merger
The completion of the Merger is subject to the satisfaction or waiver of certain customary mutual closing conditions, including (1) the adoption of the Merger Agreement by the affirmative vote of holders of a majority of the outstanding shares of Company Common Stock (the "Company Stockholder Approval"), (2) the expiration or termination of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the receipt of certain foreign antitrust clearances and (c) the absence of any antitrust law or order by a court or other governmental entity of competent jurisdiction enjoining or otherwise prohibiting consummation of the Merger. The obligation of each party to consummate the Merger is also conditioned on the other party's representations and warranties being true and correct (subject to certain customary materiality exceptions) and the other party having performed in all material respects its obligations under the Merger Agreement, and the obligation of Parent to consummate the Merger is additionally conditioned on no material adverse effect on the Company having occurred since the execution of the Merger Agreement. The consummation of the Merger is not subject to any financing condition.
Termination
The Merger Agreement contains termination rights for each of the Company and
Parent, including, among others, (1) if the consummation of the Merger does not
occur on or before
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(2) if the Company Stockholder Approval is not obtained following the meeting of the Company's stockholders for purposes of obtaining such Company Stockholder Approval and (3) subject to certain conditions, (a) by Parent if the Board of Directors of the Company changes its recommendation in favor of the Merger or (b) by the Company if the Company wishes to terminate the Merger Agreement to enter into a definitive agreement providing for a Superior Proposal (as defined by the Merger Agreement). The Company and Parent may also terminate the Merger Agreement by mutual written consent.
The Company is required to pay Parent a termination fee of
Financing
Parent has obtained equity and debt financing commitments for the purpose of financing the transactions contemplated by the Merger Agreement.
Thoma Bravo has committed to capitalize Parent at the closing of the Merger with equity financing, on the terms and subject to the conditions set forth in an equity commitment letter. In addition, Thoma Bravo has guaranteed payment of the reverse termination fee payable by Parent under certain circumstances, as well as certain indemnification and reimbursement obligations that may be owed by Parent pursuant to the Merger Agreement, subject to the terms and conditions set forth in the Merger Agreement and limited guarantee provided by Thoma Bravo to the Company.
Parent's debt commitments to finance in part the transactions contemplated by the Merger Agreement include a term loan facility and a revolving credit facility on the terms set forth in a debt commitment letter. The obligations of the lenders to provide debt financing under the debt commitment letter are subject to the satisfaction (or waiver) of customary closing conditions described in the debt commitment letter.
Pursuant to the Merger Agreement, the Company is required to use reasonable best efforts to provide Parent with customary cooperation in connection with the equity financing and the debt financing
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Other Terms of the Merger Agreement
The Merger Agreement contains customary representations and warranties of the Company, Parent and Merger Sub, in each case generally subject to customary materiality qualifiers. Additionally, the Merger Agreement provides for customary pre-closing covenants of the Company, Parent and Merger Sub, including covenants relating to the Company conducting its and its subsidiaries' business in the ordinary course, preserving its business organizations substantially intact, preserving existing relations with key business partners substantially intact and refraining from taking certain actions without Parent's consent, subject to certain exceptions. The Company, Parent and Merger Sub also agreed to use their respective reasonable best efforts to cause the Merger to be consummated.
The Merger Agreement provides that, during the period from the date of the Merger Agreement until the Effective Time, the Company will be subject to certain restrictions on its ability to solicit certain alternative acquisition proposals from third parties, provide non-public information to third parties and engage in discussions or enter into agreements with third parties regarding certain alternative acquisition proposals, subject to customary exceptions.
The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit 2.1 and is incorporated by reference herein.
The Merger Agreement and the above description have been included to provide
investors with information regarding its terms. They are not intended to provide
any other factual information about the Company, Parent, Merger Sub or their
respective affiliates. The representations, warranties and covenants contained
in the Merger Agreement were made only for purposes of the Merger Agreement as
of the specific dates therein, were solely for the benefit of the parties to the
Merger Agreement, may be subject to limitations agreed upon by the contracting
parties, including being qualified by confidential disclosures made for the
purposes of allocating contractual risk between the parties to the Merger
Agreement instead of establishing these matters as facts, and may be subject to
standards of materiality applicable to the contracting parties that differ from
those applicable to investors. Investors should not rely on the representations,
warranties and covenants or any descriptions thereof as characterizations of the
actual state of facts or condition of the parties thereto or any of their
respective subsidiaries or affiliates. Moreover, information concerning the
subject matter of representations and warranties may change after the date of
the Merger Agreement, which subsequent information may or may not be fully
reflected in the Company's public disclosures. Accordingly, the Merger Agreement
should not be read alone, but should instead be read in conjunction with the
other information regarding the Company, Parent and Merger Sub and the
transactions contemplated by the Merger Agreement that will be contained in or
attached as annex to the proxy statement that the Company will file in
connection with the transactions contemplated by the Merger Agreement, as well
as in other filings that the Company will make with the
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Voting Agreement
Also on
Item 9.01 Financial Statements and Exhibits
Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofDecember 11, 2022 , by and amongProject CS Parent, LLC ,Project CS Merger Sub, Inc. andCoupa Software Incorporated * 10.1 Voting Agreement, dated as ofDecember 11, 2022 , by and amongProject CS Parent, LLC ,Coupa Software Incorporated and the stockholders party thereto 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K. Coupa
agrees to furnish supplementally to the
copy of any omitted schedule upon request.
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