TUBEMOGUL,INC. (NASDAQ:TUBE) Files An 8-K Termination of a Material Definitive Agreement
Item 1.02 Termination of a Material Definitive Agreement.
On December19, 2016, immediately prior to and in connection with
the completion of the Offer and the Merger (as defined below),
TubeMogul (i)repaid in full all outstanding amounts due under
that certain Amended and Restated Loan and Security Agreement,
dated as of August21, 2013, by and between TubeMogul and Silicon
Valley Bank, as amended (the Credit Agreement), and
(ii)terminated all commitments outstanding under the Credit
Agreement.
Item 2.01 Completion of Acquisition or Disposition of
Assets.
The Offer and withdrawal rights expired as scheduled at one
minute past 11:59 p.m., Eastern Time, on Friday, December16, 2016
(such date and time, the Expiration Time). American Stock
Transfer Trust Company, LLC, the depositary, has advised that, as
of the Expiration Time, 30,414,093 Shares (excluding Shares
tendered to guaranteed delivery procedures that are not yet
delivered in settlement or satisfaction of such guarantee) had
been validly tendered and not properly withdrawn to the Offer,
representing approximately 75.87% of the aggregate number of then
issued and outstanding Shares (assuming the exercise of all
outstanding options and the issuance of all Shares that TubeMogul
is obligated to issue thereon). Accordingly, the minimum tender
condition to the Offer has been satisfied. As a result of the
satisfaction of the foregoing condition and each of the other
conditions to the Offer, Purchaser has accepted for payment all
Shares that were validly tendered, and not properly withdrawn, to
the Offer. In addition, the depositary has advised that, as of
the Expiration time, 839,519 Shares have been tendered by Notice
of Guaranteed Delivery, representing approximately 2.09% of the
aggregate number of then issued and outstanding Shares (assuming
the exercise of all outstanding options and the issuance of all
Shares that TubeMogul is obligated to issue thereon).
On December19, 2016, to the terms of the Merger Agreement and in
accordance with Section251(h)of the Delaware General Corporation
Law (the DGCL), Purchaser was merged with and into TubeMogul,
with TubeMogul being the surviving corporation (the Merger). Upon
completion of the Merger, TubeMogul became a subsidiary of Adobe.
At the effective time of the Merger (the Effective Time), and as
a result of the Merger, and to the terms and subject to the
conditions of the Merger Agreement, each Share issued and
outstanding immediately prior to the Effective Time was converted
into the right to receive the Offer Price, net to the holder in
cash, without interest thereon and subject to any required tax
withholding, other than (i)Shares held in the treasury of
TubeMogul and Shares owned by Purchaser, Adobe or any
wholly-owned subsidiary of Adobe or of TubeMogul immediately
prior to the Effective Time, or (ii)Shares held by any
stockholder that was entitled to demand and properly demanded
appraisal of such Shares to, and which complied in all respects
with, Section262 of the DGCL and who, as of the Effective Time,
had neither effectively withdrawn nor lost such stockholders
rights to such appraisal and payment under the DGCL with respect
to such Shares.
The Offer was made only for Shares, and not for outstanding stock
options or restricted stock units issued by TubeMogul. Holders of
outstanding vested but unexercised stock options or restricted
stock units issued by TubeMogul could participate in the Offer
only if they first exercised such stock options or became vested
in such restricted stock units and settled them for Shares in
accordance with the terms of the applicable equity incentive plan
and other applicable agreements of TubeMogul and tendered the
Shares, if any, issued upon such exercise or in connection with
such vesting and settlement. Any such exercise or settlement
should have been completed sufficiently in advance of the
Expiration Date to assure the holder of such outstanding stock
options or restricted stock units that the holder had sufficient
time to comply with the procedures for tendering Shares.
In addition, at the Effective Time and by virtue of the Merger
and without any action on the part of any holder of any
outstanding stock option: (i)each stock option that was
outstanding, unexercised, had an exercise price per share that
was less than the Merger Consideration (as defined in the Merger
Agreement) and was not vested (or required to vest as a result of
the Merger) (an Unvested In-the-Money Option) and was held by a
current employee of TubeMogul or any subsidiary of TubeMogul as
of immediately prior to the Effective Time; and (ii)each
restricted stock unit that was outstanding and was not vested (or
required to vest as a result of the Merger) and was held by a
current employee of TubeMogul or any subsidiary of TubeMogul as
of immediately prior to the Effective Time (each, an Unvested
RSU), was, in the case of each of clauses (i) and (ii), assumed
or replaced and became: (A)in the case of each such Unvested
In-the-Money Option, a stock option to purchase shares of the
Common Stock, par value $0.0001 per share, of Adobe (Adobe Common
Stock); and (B)in the case of each Unvested RSU, a restricted
stock unit in respect of shares of Adobe Common Stock.
In addition, from and after the Effective Time: (i)each
Unvested In-the-Money Option assumed or replaced by Adobe may
be exercised solely for shares of Adobe Common Stock; (ii)the
number of shares of Adobe Common Stock underlying each such
Unvested In-the-Money Option shall be determined by multiplying
the number of Shares underlying such Unvested In-the-Money
Option by the Conversion Ratio, and rounding the resulting
number down to the nearest whole number of shares of Adobe
Common Stock; (iii)the per-share exercise price for the Adobe
Common Stock issuable upon exercise of each such Unvested
In-the-Money Option shall be determined by dividing: (A)the
exercise price per share of such Unvested In-the-Money Option,
by (B)the Conversion Ratio, and rounding the resulting exercise
price up to the nearest whole cent; and (iv)subject to the
terms of the stock option agreement by which such Unvested
In-the-Money Option is evidenced, any restriction on the
exercise of such Unvested In-the-Money Option shall continue in
full force and effect and the term, exercisability, vesting
schedule and other provisions of such Unvested In-the-Money
Option shall otherwise remain unchanged; provided, however,
that Adobes board of directors or a committee thereof shall
succeed to the authority and responsibility of TubeMoguls board
of directors or any committee thereof with respect to such
Unvested In-the-Money Option.
Further, from and after the Effective Time: (A)each Unvested
RSU assumed or replaced by Adobe will, upon the vesting
thereof, become a restricted stock unit in respect of shares of
Adobe Common Stock; (B)the number of shares of Adobe Common
Stock underlying such Unvested RSU shall be determined by
multiplying: (1)the number of shares of Company Common Stock
underlying such Unvested RSU; by (2)the Conversion Ratio, and
rounding the resulting number down to the nearest whole number
of shares of Adobe Common Stock; and (C)any restriction on the
vesting or settlement or issuance of shares under such Unvested
RSU shall continue in full force and effect, and the term,
vesting schedule and other provisions of such Unvested RSU
shall otherwise remain unchanged; provided, however, that
Adobes board of directors or a committee thereof shall succeed
to the authority and responsibility of TubeMoguls board of
directors or any committee thereof with respect to such
Unvested RSU.
The Conversion Ratio means a fraction having: (a)a numerator
equal to the Merger Consideration; and (b)a denominator equal
to the average of the closing sale prices of a share of Adobe
Common Stock as reported on the Nasdaq Global Select Market for
the 10 consecutive trading day period ending on the second
business day prior to the date of the closing of the
transactions contemplated by the Merger Agreement (the Closing
Date).
Adobe did not assume any TubeMogul stock options or restricted
stock units, or substitute any TubeMogul stock options or
restricted stock units with an equivalent option, restricted
stock unit or right, held by any individual who, at the
Effective Time, was not a current employee of TubeMogul or any
subsidiary of TubeMogul (each, a Non-Company Employee). Each
unvested stock option held by a Non-Company Employee as of
immediately prior to the Effective Time was accelerated and
treated as a vested stock option in accordance with the Merger
Agreement. Each unvested restricted stock unit held by a
Non-Company Employee as of immediately prior to the Effective
Time was accelerated and treated as a vested restricted stock
unit in accordance with the Merger Agreement.
The aggregate cash consideration paid by Adobe and Purchaser in
the Offer and Merger was approximately $549,000,000, without
giving effect to related transaction fees and expenses. Adobe
and Purchaser funded the consideration paid to stockholders in
the Offer and to the Merger through Adobes cash on hand.
The foregoing summary description of the Merger Agreement does
not purport to be complete and is qualified in its entirety by
reference to the terms of the Merger Agreement, which is
included as Exhibit2.1 to this Current Report on Form8-K and is
incorporated herein by reference.
Item3.01 Notice of Delisting or Failure to Satisfy a
Continued Listing Ruleor Standard; Transfer of
Listing.
In connection with the closing of the Merger, TubeMogul
notified the Nasdaq Global Select Market (NASDAQ) on
December19, 2016 that the Merger was consummated and trading of
the common stock of TubeMogul on NASDAQ has been suspended.
Accordingly, NASDAQ has filed a notification of delisting of
TubeMoguls common stock from NASDAQ and deregistration of
TubeMoguls common stock under Section12(b)of the Securities
Exchange Act of 1934, as amended (the Exchange Act) on Form25
with the SEC. TubeMogul intends to file a certification on
Form15 with the SEC to cause TubeMoguls reporting obligations
under Sections13 and 15(d)of the Exchange Act to be suspended.
Item3.03 Material Modification to Rights of Security
Holders.
To the extent required by Item 3.03 of Form8-K, the information
disclosed under Item 2.01 and Item 5.01 of this Current Report
on Form8-K is incorporated by reference into this Item 3.03.
Item5.01 Changes in Control of Registrant.
As a result of the Purchasers acceptance for payment of all
Shares that were validly tendered and not properly withdrawn in
accordance with the terms of the Offer and the consummation of
the Merger to Section251(h)of the DGCL, on December19, 2016, a
change in control of TubeMogul occurred and TubeMogul now is a
subsidiary of Adobe.
The information disclosed under Item 2.01 and Item 3.01 of this
Current Report on Form8-K is incorporated by reference into
this Item 5.01.
Item5.02 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 Brett Wilson, Ajay
Chopra, Russell Fradin, Ashu Garg, Jack Lazar, Paul Levine and
David Toth resigned from his respective position as a member of
the Board of Directors, and any committee thereof, of
TubeMogul, effective at the Effective Time. Following the
Merger and to the terms of the Merger Agreement, at the
Effective Time, the directors of Purchaser as of immediately
prior to the Effective Time, Tracy Hanson and Keith San Felipe,
became the directors of TubeMogul.
Following the Merger and to the terms of the Merger Agreement,
at the Effective Time, the officers of Purchaser immediately
prior to the Effective Time became the officers of TubeMogul
following the Effective Time, with Donna Morris appointed as
President of TubeMogul, Keith San Felipe appointed as Vice
President and Treasurer of TubeMogul, Mike Dillon appointed as
General Counsel and Secretary of TubeMogul and Justin Judd
appointed as Vice President and Assistant Secretary of
TubeMogul.
Item5.03 Amendments to Articles of Incorporation or
Bylaws; Change in Fiscal Year.
to the terms of the Merger Agreement, at the Effective Time:
(i)the certificate of incorporation of TubeMogul was amended
and restated to read in its entirety in a form as mutually
agreed by Adobe and TubeMogul; and (ii)the bylaws of TubeMogul
were amended and restated to read in their entirety as the
bylaws of Purchaser in effect immediately prior to the
effective time of the Merger. The amended and restated
certificate of incorporation and amended and restated bylaws of
TubeMogul are filed as Exhibits 3.1 and 3.2 hereto,
respectively, and are incorporated by reference herein.
Item9.01 Financial Statements and Exhibits.
(d)Exhibits.
|
Exhibit Number |
|
Title |
|
2.1 |
Agreement and Plan of Merger, dated as of November10, |
|
|
3.1 |
Amended and Restated Certificate of Incorporation of |
|
|
3.2 |
Amended and Restated Bylaws of TubeMogul,Inc. |
About TUBEMOGUL, INC. (NASDAQ:TUBE)
TubeMogul, Inc. provides software for brand advertising. The Company’s software platform is used by advertisers to plan, buy, measure and optimize their global brand advertising. Its self-serve software platform enables advertisers to buy advertisement inventory across various advertising channels, including linear television, video-on-demand, connected television, digital video, digital display and social media. By integrating programmatic technologies and disparate sources of inventory within a single platform, it enables the customers to launch advertising campaigns onto digital devices and televisions. Its customers are primarily brands and the advertising agencies that serve them. Brands refer to companies, or product lines within companies, that control advertising budgets for a single marketing brand or a group of marketing brands. Agency trading desks, advertisement networks and publishers also use its platform. TUBEMOGUL, INC. (NASDAQ:TUBE) Recent Trading Information
TUBEMOGUL, INC. (NASDAQ:TUBE) closed its last trading session at 14.00 with 200,511 shares trading hands.
