DUCK CREEK TECHNOLOGIES, INC. Item 1.01. Entry into a Material Definitive Agreement.
On
A special committee (the "Special Committee") of independent and disinterested
members of the Company's board of directors (the "Company Board") adopted
resolutions recommending that the Company Board approve and enter into the
Merger Agreement, and subject to the approval by the Company Board of the
At the effective time of the Merger (the "Effective Time"):
(i) each share of common stock, par value $0.01 per share, of the Company
(the "Company Common Stock") outstanding as of immediately prior to the
Effective Time (other than shares of Company Common Stock that are
(A)(1) held by the Company and its Subsidiaries; (2) owned by the Buyer
Parties; or (3) owned by any direct or indirect wholly owned Subsidiary
of the Buyer Parties as of immediately prior to the Effective Time (the
"Owned Company Shares") or (B) issued and outstanding as of immediately
prior to the Effective Time and held by Company Stockholders who have
neither voted in favor of the Merger nor consented thereto in writing and
who have properly and validly exercised their statutory rights of
appraisal in respect of such shares of Company Common Stock in accordance
with Section 262 of the DGCL (the "Dissenting Company Shares")) will be
cancelled and extinguished and automatically converted into the right to
receive cash in an amount equal to $19.00 , without interest thereon (the
"Per Share Price"); and
(ii) each Owned Company Share will be cancelled and extinguished without any
conversion thereof or consideration paid therefor.
The Merger Agreement also provides that, at the Effective Time, by virtue of the Merger:
(i) each Company RSA, whether vested or unvested, that is outstanding as of
immediately prior to the Effective Time shall be fully vested, cancelled
and automatically converted into the right to receive an amount in cash
equal to the product of (A) the aggregate number of shares of Company
Common Stock subject to such Company RSA, multiplied by (B) the Per Share
Price, subject to any required withholding of Taxes;
(ii) each Company RSU, whether vested or unvested, that is outstanding as of
immediately prior to the Effective Time shall be fully vested, cancelled
and automatically converted into the right to receive an amount in cash
equal to the product of (A) the aggregate number of shares of Company
Common Stock subject to such Company RSU, multiplied by (B) the Per Share
Price, subject to any required withholding of Taxes;
(iii) each Company Phantom Stock Award, whether vested or unvested, that is
outstanding as of immediately prior to the Effective Time shall be fully
vested, cancelled and automatically converted into the right to receive
an amount in cash equal to the product of (A) the aggregate number of
shares of Company Common Stock measured by reference to such Company
Phantom Stock Award, multiplied by (B) the Per Share Price, subject to
any required withholding of Taxes;
(iv) each Company Option, whether vested or unvested, that is unexpired,
unexercised, and outstanding as of immediately prior to the Effective
Time shall be fully vested, cancelled and automatically converted into
the right to receive an amount in cash equal to the product of (A) the
aggregate number of shares of Company Common Stock subject to such
Company Option, multiplied by (B) the excess, if any, of the Per Share
Price over the applicable per share exercise price under such Company
Option, subject to any required withholding of Taxes (provided that any
Company Option that is not in-the-money shall be cancelled immediately
upon the Effective Time without payment or consideration); and
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(v) each Company SAR, whether vested or unvested, that is unexpired,
unexercised, and outstanding as of immediately prior to the Effective
Time shall be fully vested, cancelled and automatically converted into
the right to receive an amount in cash equal to the product of (A) the
aggregate number of shares of Company Common Stock subject to such
Company SAR, multiplied by (B) the excess, if any, of the Per Share Price
over the applicable per share exercise price under such Company SAR,
subject to any required withholding of Taxes (provided that any Company
SAR that is not in-the-money shall be cancelled immediately upon the
Effective Time without payment or consideration).
Holders of Dissenting Company Shares will be entitled to receive payment of the appraised value of such Dissenting Company Shares in accordance with the provisions of Section 262 of the DGCL.
If the Merger is consummated, the Company Common Stock will be de-listed from The Nasdaq Global Select Market and de-registered under the Securities Exchange Act of 1934, as amended, as soon as practicable following the Effective Time.
Conditions to the Merger
Consummation of the Merger is subject to certain conditions set forth in the Merger Agreement, including, but not limited to, the: (i) affirmative vote of the holders of a majority of all of the outstanding shares of Company Common Stock to adopt the Merger Agreement; (ii) expiration or termination of any waiting periods applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"); (iii) absence of any law or order restraining, enjoining or otherwise prohibiting the Merger; and (iv) the absence of a Company Material Adverse Effect.
Go-Shop Period and No-Shop Period
From the execution of the Merger Agreement until
(i) solicit, initiate, propose or induce the making, submission or
announcement of an Acquisition Proposal;
(ii) furnish to any Person any non-public information relating to the Company
Group with the intent to induce the making, submission or announcement of
an Acquisition Proposal; and
(iii) participate or engage in discussions or negotiations with any such
Person with respect to an Acquisition Proposal.
From the No-Shop Period Start Date (or, with respect to an
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Regulatory Efforts
The parties to the Merger Agreement have agreed to use their respective
reasonable best efforts to consummate and make effective, in the most
expeditious manner possible, the Merger, including by using reasonable best
efforts to cause the conditions to the Merger to be satisfied. If necessary to
receive clearance of the Merger pursuant to the HSR Act and other antitrust and
foreign investment laws, the Buyer Parties (and their respective controlled
Affiliates, if applicable) will (i) offer, negotiate, commit to and effect
(A) the sale, divestiture, license or other disposition of any and all of the
capital stock or other equity or voting interest, assets, rights, products or
businesses of the Buyer Parties (and their respective controlled Affiliates, if
applicable), on the one hand, and the
Termination and Fees
The Merger Agreement contains certain termination rights for the Company, on the
one hand, and the Buyer Parties, on the other hand. Upon termination of the
Merger Agreement under specified circumstances, including the Company
terminating the Merger Agreement to enter into an Alternative Acquisition
Agreement with respect to a Superior Proposal or Parent terminating the Merger
Agreement due to the Company Board's withdrawal of its recommendation to
stockholders in favor of the Merger, in each case pursuant to and in accordance
with the "fiduciary out" provisions of the Merger Agreement, the Company will be
required to pay Parent a termination fee of
Other Terms of the Merger Agreement
The Company also made customary representations and warranties in the Merger
Agreement and agreed to customary covenants regarding the operation of the
business of the Company and its Subsidiaries prior to the consummation of the
Merger. The Merger Agreement also provides that the Company, on the one hand, or
the Buyer Parties, on the other hand, may specifically enforce the obligations
under the Merger Agreement, including the obligation to consummate the Merger if
the conditions set forth in the Merger Agreement are satisfied. The Buyer
Parties' liability for monetary damages for breaches of the Merger Agreement are
capped at
The foregoing description of the Merger Agreement and the transactions contemplated thereby does not purport to be complete, and is subject to, and qualified in its entirety by reference to, the full text of the Merger Agreement, which is attached as Exhibit 2.1 and is incorporated by reference herein. The Merger Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about the Company, Parent, Merger Sub or their respective Subsidiaries or 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 among 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 . . .
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofJanuary 8, 2023 , by and amongDisco Parent, LLC ,Disco Merger Sub, Inc. andDuck Creek Technologies, Inc. * 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* The schedules and exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K.
schedules and exhibits, or any section thereof, to the
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