UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14D-9
SOLICITATION/RECOMMENDATION STATEMENT
UNDER SECTION 14(d)(4) OF THE SECURITIES EXCHANGE ACT OF 1934
INSTRUCTURE, INC.
(Name of Subject Company)
INSTRUCTURE, INC.
(Name of Person(s) Filing Statement)
Common Stock, par value $.0001 per share
(Title of Class of Securities)
45781U103
(CUSIP Number of Class of Securities)
Matthew Kaminer
Chief Legal Officer
6330 South 3000 East, Suite 700
Salt Lake City, UT 84121
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of the Person(s) Filing Statement)
With a copy to:
Matthew Hemington, Esq.
Steve Tonsfeldt, Esq.
Cooley LLP
3175 Hanover Street
Palo Alto, CA 94304-1130
(650) 843 5062
| ☒ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
On February 18, 2020, Joshua Coates, Executive Chairman of Instructure, Inc., a Delaware corporation (the “Company”), sent the following e-mail to employees, relating to the to the proposed acquisition of Instructure, Inc., a Delaware corporation (the “Company”) by Instructure Holdings, LLC (f/k/a PIV Purchaser, LLC), a Delaware limited liability company (“Parent”), and PIV Merger Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent (“Merger Sub”), pursuant to the terms of the Amended and Restated Agreement and Plan of Merger, dated as of February 17, 2020:
hi everyone,
it’s me, josh, your executive chairperson.
so dan is out, and that means we don’t have a CEO, so instead the board has created an “office of the CEO” which is what companies normally do when they don’t have a CEO.
the office of the CEO is just the exec team (weber, kaminer, debellis, maylett, loble, benson and knotwell) and charles goodman (a TB guy) will be working with the team as an advisor.
also, just so you know, the board is still very much involved in things - i’ve been on board related calls almost every day, usually many times per day, for the last couple of weeks. the transaction will get done, but it’ll probably take a lot longer than we’d like. just keep swimming. ;-)
sometime in the next week or two there might be an opportunity for me to stop by and do an informal lunch & learn get together just to give an overview of the whole m&a process for those in the company that are interested in that sort of thing. we’ll see.
jeff will followup with more details about upcoming company events, comp, equity etc.
that’s the news,
-josh
PS - also, for some reason the SEC is requiring me to include the following text in this email:
Additional Information and Where to Find It
The tender offer described in this communication has not yet been commenced. This announcement and the description contained herein is neither an offer to purchase nor a solicitation of an offer to sell shares of the Company. At the time the tender offer is commenced, Instructure Holdings, LLC (“Parent”), a limited liability company affiliated with Thoma Bravo, and PIV Merger Sub, Inc., a wholly owned Subsidiary of Parent, intend to file a Tender Offer Statement on Schedule TO containing an offer to purchase, forms of letters of transmittal and other documents relating to the tender offer (collectively, the “Tender Offer Documents”), and the Company intends to file a Solicitation/Recommendation Statement on Schedule 14D-9 (the “Recommendation Statement”) with respect to the tender offer. Parent and the Company intend to mail these documents to the Company’s stockholders. Investors and security holders of the Company are urged to carefully read the Tender Offer Documents and the Recommendation Statement, each as may be amended or supplemented from time to time, and any other filings made in connection therewith when they become available before making any decision with respect to the tender offer because such documents will contain important information about the proposed transactions and the parties thereto.
Investors and security holders of the Company will be able to obtain a free copy of the Tender Offer Documents and the Recommendation Statement and any supplements or amendments thereto, as well as other relevant filings, including materials that are incorporated by reference into those documents, without charge, at the SEC’s website (http://www.sec.gov) or from the Company by contacting the Company’s Investor Relations at (866) 574-3127, by email at Investors@instructure.com, or by going to the Company’s Investor Relations page on its website at https://ir.instructure.com/overview/default.aspx and clicking on the link titled “SEC Filings.”
Notice Regarding Forward-Looking Statements
This communication contains forward-looking information related to the Company and the proposed acquisition of the Company in a tender offer. Forward-looking statements in this release include, among other things, statements about the potential benefits of the proposed transaction, the Company’s plans, objectives, expectations and intentions, the financial condition, results of operations and business of the Company, and the anticipated timing of closing of the proposed transaction. Risks and uncertainties include, among other things, risks related to the ability of the Company to consummate the proposed transaction on a timely basis or at all, including due to complexities resulting from the adoption of new accounting pronouncements and associated system implementations; the satisfaction of the conditions precedent to consummation of the proposed transaction; the Company’s ability to secure regulatory approvals on the terms expected in a timely manner or at all; disruption from the transaction making it more difficult to maintain business and operational relationships; the negative side effects of the announcement or the consummation of the proposed transaction on the market price of the Company’s common stock or on the Company’s operating results; significant transaction costs; unknown liabilities; the risk of litigation and/or regulatory actions related to the proposed transaction; competitive factors, including competitive responses to the transaction and changes in the competitive environment, pricing changes, sales cycle time and increased competition; customer demand for the Company’s products; new application introductions and the Company’s ability to develop and deliver innovative applications and features; the Company’s ability to provide high-quality service and support offerings; the Company’s ability to build and expand its sales efforts; regulatory requirements or developments; changes in capital resource requirements; and other business effects, including the effects of industry, market, economic, political or regulatory conditions; future exchange and interest rates; changes in tax and other laws, regulations, rates and policies; and future business combinations or disposals.
Further information on these and other risk and uncertainties relating to the Company can be found in its reports on Forms 10-K, 10-Q and 8-K and in other filings the Company makes with the SEC from time to time and available at www.sec.gov. These documents are available under the SEC filings heading of the Investors section of the Company’s website at https://ir.instructure.com/overview/default.aspx.
The forward-looking statements included in this communication are made only as of the date hereof. The Company assumes no obligation and does not intend to update these forward-looking statements, except as required by law.