Item 1.01. Entry into a Material Definitive Agreement
On April 28, 2016, Textura Corporation, a Delaware corporation (the “Company”), OC Acquisition LLC, a Delaware limited liability company (“Parent”), Tulip Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Subsidiary”), and Oracle Corporation, a Delaware corporation and the ultimate parent entity of Parent and Merger Subsidiary (“Oracle”), entered into an Agreement and Plan of Merger (the “Merger Agreement”).
Pursuant to the Merger Agreement, and upon the terms and subject to the conditions thereof, Parent has agreed that Merger Subsidiary will commence a cash tender offer (the “Offer”) to acquire all of the shares of the Company’s common stock (“Common Stock”) for a purchase price of $26 per share, net to the holders thereof, in cash (the “Offer Price”), without interest, subject to the terms and conditions of the Merger Agreement.
At the Effective Time (as defined below), the unvested portion of each Company stock option and each Company restricted stock unit (the “Equity Awards”), that is outstanding immediately prior to the Effective Time and held by a person who is an employee of the Company or any subsidiary of the Company as of immediately prior to the Effective Time (an “Employee”), will be assumed by Oracle and converted automatically into an option or restricted stock unit, as the case may be, denominated in shares of Oracle common stock based on formulas set forth in the Merger Agreement and subject to terms and conditions substantially identical to those in effect at the Effective Time.
The vested portion of each Equity Award that is outstanding immediately prior to the Effective Time will not be assumed by Oracle but will instead be canceled and extinguished. In exchange for any such canceled Equity Award, the former holder of such Equity Award will receive an amount in cash equal to the product of (x) the aggregate number of shares of Company common stock subject to the Equity Award (or relevant vested portion thereof) immediately prior to the Effective Time and (y) the Offer Price less, in the case of a canceled Company stock option, the aggregate exercise or purchase price of the vested portion of such Equity Award. A vested Company stock option which has a per share exercise or purchase price that exceeds the Offer Price will be canceled without any payment being made to the former holder.
The unvested portion of each outstanding Equity Award held by a person who is not an Employee will not be assumed by Oracle and will be canceled and extinguished for no consideration.
Merger Subsidiary has agreed to commence the Offer as promptly as reasonably practicable from the date of the Merger Agreement. The consummation of the Offer will be conditioned on (i) at least 66 2/3% of the shares of the Common Stock having been validly tendered into and not withdrawn from the Offer, (ii) receipt of certain regulatory approvals, including expiration of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and certain foreign antitrust laws, (iii) the accuracy of the representations and warranties and compliance with the covenants contained in the Merger Agreement, subject to qualifications, and (iv) other customary conditions.
The Merger Agreement provides that, as soon as practicable following the consummation of the Offer, Merger Subsidiary will merge with and into the Company (the “Merger”), with the Company surviving the Merger as a wholly-owned subsidiary of Parent. In the Merger, each outstanding share of the Common Stock (other than treasury shares, shares held by Oracle, Parent or Merger Subsidiary or shares as to which dissenters’ rights have been properly exercised) will be converted into the right to receive the Offer Price (the closing of the Merger is referred to as the “Effective Time”). The consummation of the Merger is subject to certain closing conditions, and will be effected pursuant to Section 251(h) of the Delaware General Corporation Law, without any stockholder vote being required. The consummation of the Merger is subject to certain closing conditions. In connection with the Offer and Merger, certain stockholders of the Company have entered into a Tender and Support Agreement agreeing to tender their shares of Common Stock pursuant to the Offer and to support the Offer and the Merger.
The foregoing description of the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, which is attached as Exhibit 2.1 to this Current Report and incorporated herein by reference.
The Merger Agreement and the foregoing description of the Merger Agreement have been included to provide investors and stockholders with information regarding the terms of the Merger Agreement. It is not intended to provide any other factual information about the Company. The representations, warranties and covenants contained in the Merger Agreement were made only as of specified dates for the purposes of such agreement, were solely for the benefit of the parties to such agreement and may be subject to qualifications and limitations agreed upon by such parties. In particular, in reviewing the representations, warranties and covenants contained in the Merger Agreement and discussed in the foregoing description, it is important to bear in mind that such representations, warranties and covenants were negotiated with the principal purpose of allocating risk between the parties, rather than establishing matters as facts. Such representations, warranties and covenants may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the U.S. Securities and Exchange Commission (the “SEC”). Investors are not third-party beneficiaries
under the Merger Agreement. Accordingly, investors and stockholders should not rely on such representations, warranties and covenants as characterizations of the actual state of facts or circumstances described therein. Information concerning the subject matter of such representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the parties’ public disclosures.