Item 1.01 Entry into a Material Definitive Agreement.
On
Under the terms of the Purchase Agreement, ICE has agreed to pay to the Seller
aggregate consideration of (a)
Completion of the Acquisition will be subject to the satisfaction or waiver of
customary closing conditions, including the continued accuracy of
representations and warranties made by the parties to the Purchase Agreement,
the performance in all material respects of obligations required to be performed
under the Purchase Agreement, the absence of any court or governmental order
preventing or prohibiting completion of the Acquisition and the expiration of
the waiting period, or receipt of required approvals, under the
Hart-Scott-Rodino Improvements Act of 1976 (the "HSR Act"). The completion of
the Acquisition is not subject to a financing condition. Unless the parties
agree, the Closing will not occur prior to
The Purchase Agreement contains customary representations and warranties of Ellie Mae relating to its business, generally subject to a material adverse effect qualifier, as well as customary representations and warranties of ICE and of the Seller. Each party's representations and warranties, as well as its liability for breaches of those representations and warranties, will expire and terminate upon the Closing. Additionally, the Purchase Agreement provides for customary pre-Closing operating covenants of Ellie Mae, including the obligation to conduct its business in the ordinary course consistent with past practice and to refrain from taking certain actions without ICE's consent, subject to certain exceptions. ICE is also subject to certain limitations on its pre-Closing conduct, including with respect to certain acquisitions or dispositions of, or changes to, its stock, and is obligated to take any and all steps necessary to obtain all clearances, consents, approvals and waivers applicable to the Acquisition under the HSR Act.
The Purchase Agreement may be terminated at any time prior to the Closing by
mutual written consent of the Seller and ICE, and under certain other
conditions, including in the event that the Acquisition is not consummated by
Pursuant to the terms and subject to the conditions of the Purchase Agreement, the shares of ICE common stock to be issued as consideration in connection with the Acquisition will be issued without registration under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on the private offering exemption provided by Section 4(a)(2) thereof. ICE and the Seller have agreed to enter into a Registration Rights Agreement contemporaneously with the Closing that will obligate ICE, on the terms and subject to the conditions set forth therein, to register the shares of ICE common stock to be issued to the Seller under the Securities Act.
Financing the Acquisition
ICE expects to fund the cash portion of the consideration for the Acquisition with the proceeds from (i) the issuance of commercial paper under its commercial paper program and/or borrowings under its existing revolving credit agreement (as amended and restated from time to time), (ii) the issuance of one or more series of unsecured notes or other debt securities and (iii) borrowings under a new senior unsecured term loan facility. However, there can be no assurance that the debt financing will be completed on a timely manner, on favorable conditions or at all.
On
The foregoing description of the Acquisition and the Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Purchase Agreement. A copy of the Purchase Agreement is filed as Exhibit 2.1 to this Current Report and incorporated herein by reference.
The Purchase Agreement and the above description have been included to provide
investors and securityholders with information regarding the terms of the
Purchase Agreement. They are not intended to provide any other factual
information about Ellie Mae, the Seller, ICE or their respective subsidiaries,
affiliates, securityholders or stockholders. The representations, warranties and
covenants contained in the Purchase Agreement were made only for purposes of
those agreements and as of specific dates; were solely for the benefit of the
parties to the Purchase Agreement; and may be subject to limitations agreed upon
by the parties, including being qualified by confidential disclosures made by
each contracting party to the other for the purposes of allocating contractual
risk between them that differ from those applicable to investors or
securityholders. Investors and securityholders should be aware that the
representations, warranties and covenants or any description thereof may not
reflect the actual state of facts or condition of Ellie Mae, the Seller, ICE or
any of their respective subsidiaries, affiliates, businesses, securityholders or
stockholders. Moreover, information concerning the subject matter of the
representations, warranties and covenants may change after the date of the
Purchase Agreement. Accordingly, investors and securityholders should read the
representations and warranties in the Purchase Agreement not in isolation but
only in conjunction with the other information about ICE and its subsidiaries
that ICE includes in reports, statements and other filings it makes with the
Item 3.02 Unregistered Sales of
As described above, pursuant to the terms and subject to the conditions of the
Purchase Agreement, at the Closing, the Seller will receive shares of ICE common
stock as consideration for the Acquisition. Those shares of ICE common stock
will be issued without registration under the Securities Act in reliance on the
private offering exemption provided by Section 4(a)(2) thereof. In relying on
the exemption from registration provided by Section 4(a)(2), ICE will rely on
representations from the Seller that it is an accredited investor as defined
under Regulation D promulgated by the
The disclosure in Item 1.01 of this Current Report is incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description
2.1 Stock Purchase Agreement, dated as ofAugust 6, 2020 , by and amongIntercontinental Exchange, Inc. ,Ellie Mae Intermediate Holdings I, Inc. andEllie Mae Parent, LP .* 104 The cover page fromIntercontinental Exchange, Inc.'s Current Report on Form 8-K, formatted in Inline XBRL.
* Certain exhibits and similar attachments to this agreement have been omitted in
accordance with Item 601(b)(2) of Regulation S-K. A copy of any omitted exhibit
or other attachment will be furnished supplementally to the
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K may contain "forward-looking statements" made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. In some cases, you can identify forward-looking statements by words such as "may," "hope," "will," "should," "expect," "plan," "anticipate," "intend," "believe," "estimate," "predict," "potential," "continue," "could," "future" or the negative of those terms or other words of similar meaning. You should carefully read forward-looking statements, including statements that contain these words, because they discuss our future expectations or state other "forward-looking" information. Forward-looking statements are subject to numerous assumptions, risks and uncertainties which change over time. ICE cautions readers that any forward-looking statement is not a guarantee of future performance and that actual results could differ materially from those contained in the forward-looking statement.
Forward-looking statements include, but are not limited to, statements about the
benefits of the Acquisition, including future financial results, ICE's plans,
objectives, expectations and intentions, the expected timing of completion of
the transaction, the expected form and timing of debt financing to fund the
Acquisition and other statements that are not historical facts. Important
factors that could cause actual results to differ materially from those
indicated by such forward-looking statements are set forth in ICE's filings with
the
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