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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No.  )
Filed by the Registrant ☒
Filed by a Party other than the Registrant
Check the appropriate box:

Preliminary Proxy Statement

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

Definitive Proxy Statement

Definitive Additional Materials

Soliciting Material Pursuant to §240.14a-12
MobileIron, Inc.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check the appropriate box):
No fee required.
Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
 
(1)
Title of each class of securities to which transaction applies:
 
 
 
 
(2)
Aggregate number of securities to which transaction applies:
 
 
 
 
(3)
Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
 
 
 
 
(4)
Proposed maximum aggregate value of transaction:
 
 
 
 
(5)
Total fee paid:
 
 
 
Fee paid previously with preliminary materials.
Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
 
(1)
Amount Previously Paid:
 
 
 
 
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Form, Schedule or Registration Statement No.:
 
 
 
 
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Date Filed:
 
 
 

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October 26, 2020
Dear Stockholders,
You are cordially invited to attend a special meeting of stockholders (the “special meeting”) of MobileIron, Inc. (“MobileIron” or the “Company”). The special meeting will be held on November 24, 2020 at 10:00 a.m., Pacific Time. You may attend the special meeting via a live interactive webcast on the Internet at www.virtualshareholdermeeting.com/MOBL2020SM. You will be able to listen to the special meeting live, submit questions during the special meeting and vote online. We believe a virtual meeting provides expanded access, improves communication, enables increased stockholder attendance and participation and provides cost savings for our stockholders and the Company. The special meeting will begin promptly at 10:00 a.m., Pacific Time. We encourage you to access the meeting prior to the start time. Online check-in will begin at 9:45 a.m., Pacific Time, and you should allow reasonable time for the check-in procedures. You will need the control number found on your proxy card or voting instruction form in order to participate in the special meeting (including asking a question or voting your shares).
At the special meeting, you will be asked to consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated September 26, 2020 (as it may be amended from time to time in accordance with its terms, the “merger agreement”), by and among MobileIron, Ivanti, Inc. (“Ivanti”) and Oahu Merger Sub, Inc. (“Merger Sub”). Ivanti and Merger Sub are privately held companies. The merger agreement provides for, among other things, the merger of Merger Sub (a wholly owned subsidiary of Ivanti) with and into MobileIron (the “merger”), with MobileIron continuing as the surviving corporation following the merger. At the special meeting, you will also be asked to consider and vote on (1) a proposal to approve, on a non-binding, advisory basis, the compensation that will or may become payable by MobileIron to its named executive officers in connection with the merger; and (2) a proposal for the adjournment of the special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the merger agreement at the time of the special meeting.
If the merger is completed, MobileIron stockholders will be entitled to receive $7.05 in cash, without interest and less any taxes required to be withheld in respect thereof, for each share of MobileIron common stock that you own immediately prior to the effective time of the merger (unless you have properly exercised your appraisal rights). The merger consideration represents a premium of approximately (1) 22.7% to the closing price of our common stock of $5.75 on August 17, 2020, (2) 26.4% to the trailing 30 day trading day average closing price of our common stock for the period ended August 17, 2020 and (3) a 41.2% premium to the trailing 90 day trading day average closing price of our common stock for the period ended August 17, 2020. The Company views August 17, 2020 as the last trading day on which the trading price of its common stock was unaffected by rumors with respect to the potential acquisition of the Company in light of the fact that the Company received the initial written non-binding proposal from Ivanti and its principal financial backers on that date and the fact that on August 20, 2020 Bloomberg News published an article about acquisition rumors involving the Company.
MobileIrons’s board of directors, after carefully considering the factors more fully described in the enclosed proxy statement, unanimously: (1) determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to and in the best interests of MobileIron and its stockholders; and (2) approved and declared advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement.
After careful consideration, MobileIron’s board of directors unanimously recommends that you vote: (1) “FOR” the adoption of the merger agreement; (2) “FOR” the compensation that will or may become payable by MobileIron to its named executive officers in connection with the merger; and (3) “FOR” the adjournment of the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the merger agreement at the time of the special meeting.

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The enclosed proxy statement provides detailed information about MobileIron, the special meeting, the merger agreement and the merger, and the other proposals to be considered at the special meeting. A copy of the merger agreement is attached as Annex A to the proxy statement.
The proxy statement also describes the actions and determinations of MobileIron’s board of directors in connection with its evaluation of the merger agreement and the merger. We urge you to read the proxy statement and its annexes, including the merger agreement, carefully and in their entirety, as they contain important information.
Even if you plan to attend the special meeting, please sign, date and return, as promptly as possible, the enclosed proxy card (a prepaid reply envelope is provided for your convenience) or grant your proxy electronically over the Internet or by telephone (using the instructions found on the proxy card). Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to vote at the meeting, you must obtain a proxy issued in your name from that record holder. If you attend the special meeting and vote at the special meeting, your vote will revoke any proxy that you have previously submitted. If you fail to return your proxy or to attend the special meeting, your shares will not be counted for purposes of determining whether a quorum is present at the special meeting and will have the same effect as a vote against the adoption of the merger agreement.
If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares held in “street name.” If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form provided by your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals to be considered at the special meeting without your instructions. Without your instructions, your shares will not be counted for purposes of a quorum or be voted at the special meeting, and that will have the same effect as voting against the adoption of the merger agreement.
Your vote is very important, regardless of the number of shares that you own.
If you have any questions or need assistance voting your shares, please contact our proxy solicitor:
D.F. King & Co., Inc.
48 Wall Street - 22nd Floor
New York, New York 10005
Stockholders call toll-free: (877) 732-3621
Banks and brokers call collect: (212) 269-5550
Email: mobl@dfking.com
I want to thank our customers, employees, partners and shareholders for their continued support.
Sincerely,

/s/ Simon Biddiscombe
Simon Biddiscombe
President and Chief Executive Officer, MobileIron
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of the merger, passed upon the merits or fairness of the merger agreement or the transactions contemplated thereby, including the proposed merger, or passed upon the adequacy or accuracy of the information contained in the accompanying proxy statement. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated October 26, 2020, and, together with the enclosed form of proxy card, is first being mailed to MobileIron stockholders on or about October 26, 2020.

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490 East Middlefield Road
Mountain View, CA 94043
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

To Be Held On November 24, 2020
Dear Stockholder:
Notice is given that a special meeting of stockholders, which we refer to as the “special meeting,” of MobileIron, Inc., a Delaware corporation (“MobileIron” or the “Company”), will be held on November 24, 2020, at 10:00 a.m., Pacific Time, for the following purposes:
1.
To consider and vote on the proposal to adopt the Agreement and Plan of Merger (as it may be amended from time to time), dated September 26, 2020, by and among MobileIron, Ivanti, Inc. and Oahu Merger Sub, Inc. (as it may be amended from time to time in accordance with its terms, the “merger agreement”);
2.
To consider and vote on the proposal to approve, on a non-binding, advisory basis, the compensation that will or may become payable by MobileIron to its named executive officers in connection with the merger of Oahu Merger Sub, Inc., a wholly owned subsidiary of Ivanti, Inc., with and into MobileIron pursuant to the merger agreement (the “merger”); and
3.
To consider and vote on any proposal to adjourn the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the merger agreement at the time of the special meeting.
These items of business are more fully described in the proxy statement accompanying this notice.
The special meeting will be held by means of a live interactive webcast on the Internet at www.virtualshareholdermeeting.com/MOBL2020SM. You will be able to listen to the special meeting live, submit questions during the meeting and vote online. The special meeting will begin promptly at 10:00 a.m., Pacific Time. We encourage you to access the meeting prior to the start time. Online check-in will begin at 9:45 a.m., Pacific Time, and you should allow reasonable time for the check-in procedures. You will need the control number found on your proxy card or voting instruction form in order to participate in the special meeting (including asking a question or voting your shares).
Only stockholders as of the close of business on October 23, 2020, are entitled to notice of, and to vote at, the special meeting.
MobileIron’s board of directors unanimously recommends that you vote: (1) “FOR” the adoption of the merger agreement; (2) “FOR” the compensation that will or may become payable by MobileIron to its named executive officers in connection with the merger; and (3) “FOR” the adjournment of the special meeting to a later date or time, if necessary or appropriate, to solicit additional proxies if there are insufficient votes to adopt the merger agreement at the time of the special meeting.
MobileIron stockholders who do not vote in favor of the proposal to adopt the merger agreement, or consent thereto in writing, will have the right to seek appraisal of the “fair value” of their shares of MobileIron common stock (exclusive of any elements of value arising from the accomplishment or expectation of the merger and together with interest (as described in the accompanying proxy statement) to be paid on the amount determined to be “fair value”) in lieu of receiving the merger consideration if the merger is completed, as determined in accordance with Section 262 of the Delaware General Corporation Law (which is referred to as the “DGCL”). To do so, a MobileIron stockholder must properly demand appraisal before the vote is taken on the merger agreement and comply with all other requirements of the DGCL, including Section 262 of the DGCL, which are

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summarized in the accompanying proxy statement, and must meet certain other conditions. Section 262 of the DGCL is reproduced in its entirety in Annex B to the accompanying proxy statement and is incorporated in this notice by reference.
Even if you plan to attend the special meeting online, please sign, date and return, as promptly as possible, the enclosed proxy card (a prepaid reply envelope is provided for your convenience) or grant your proxy electronically over the Internet or by telephone (using the instructions found on the proxy card). If you attend the special meeting and vote at the special meeting, your vote will revoke any proxy that you have previously submitted. If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank. If you fail to return your proxy or to attend the special meeting, your shares will not be counted for purposes of determining whether a quorum is present at the special meeting and will have the same effect as a vote against the adoption of the merger agreement.
If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares held in “street name.” If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form provided by your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals to be considered at the special meeting without your instructions. Without your instructions, your shares will not be counted for purposes of a quorum or be voted at the special meeting, and that will have the same effect as voting against the adoption of the merger agreement.
 
By Order of the Board of Directors
 
 
 
/s/ Simon Biddiscombe
 
Simon Biddiscombe
 
President and Chief Executive Officer
 
 
Mountain View, California
October 26, 2020
 

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IMPORTANT INFORMATION
Even if you plan to attend the special meeting online, we encourage you to submit your proxy as promptly as possible: (1) over the Internet; (2) by telephone; or (3) by signing and dating the enclosed proxy card (a prepaid reply envelope is provided for your convenience). You may revoke your proxy or change your vote at any time before your proxy is voted at the special meeting.
If your shares are held through a bank, broker or other nominee, you are considered the “beneficial owner” of shares held in “street name.” If you hold your shares in “street name,” you should instruct your bank, broker or other nominee how to vote your shares in accordance with the voting instruction form provided by your bank, broker or other nominee. Your bank, broker or other nominee cannot vote on any of the proposals to be considered at the special meeting without your instructions. Without your instructions, your shares will not be counted for purposes of a quorum or be voted at the special meeting, and that will have the same effect as voting against the adoption of the merger agreement.
If you are a stockholder of record, voting at the special meeting will revoke any proxy that you previously submitted. If you hold your shares through a bank, broker or other nominee, you must obtain a “legal proxy” from the bank, broker or other nominee that holds your shares in order to vote at the special meeting.
We urge you to read the accompanying proxy statement and its annexes, including all documents incorporated by reference into the accompanying proxy statement, carefully and in their entirety. If you have any questions concerning the merger, the special meeting or the accompanying proxy statement, would like additional copies of the accompanying proxy statement, or need help voting your shares of MobileIron common stock, please contact our proxy solicitor:
D.F. King & Co., Inc.
48 Wall Street - 22nd Floor
New York, New York 10005
Stockholders call toll-free: (877) 732-3621
Banks and brokers call collect: (212) 269-5550
Email: mobl@dfking.com

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SUMMARY
This summary highlights information contained elsewhere in this proxy statement and may not contain all the information that is important to you with respect to the merger and the other matters being considered at the special meeting of MobileIron’s stockholders to be held on November 24, 2020 (the “special meeting”). We urge you to read carefully the remainder of this proxy statement, including the attached annexes, and the other documents to which we have referred you. For additional information on MobileIron included in documents incorporated by reference into this proxy statement, see the section entitled “Where You Can Find More Information” beginning on page 95. We have included page references in this summary to direct you to a more detailed description of the topics presented below. This proxy statement is dated October 26, 2020 and is first being mailed to stockholders of record on or about October 26, 2020.
As used in this proxy statement, all references to “we,” “us,” “our,” “MobileIron” and the “Company” refer to MobileIron, Inc. and its subsidiaries; all references to “Ivanti” refer to Ivanti, Inc.; all references to “Merger Sub” refer to Oahu Merger Sub, Inc., a wholly owned subsidiary of Ivanti formed solely for the purposes of entering into the merger agreement and engaging in the transactions contemplated by the merger agreement; all references to the “merger” refer to the merger of Merger Sub with and into MobileIron, with MobileIron surviving as a wholly owned subsidiary of Ivanti; unless otherwise indicated or as the context otherwise requires, all references to the “merger agreement” refer to the Agreement and Plan of Merger, dated as of September 26, 2020, by and among MobileIron, Ivanti and Merger Sub, a copy of which is included as Annex A to this proxy statement and incorporated by reference herein. MobileIron, following the completion of the merger, is sometimes referred to in this proxy statement as the “surviving corporation.”
Parties to the Merger (page 24)
MobileIron, Inc.
MobileIron is an established player in the zero trust security solutions market, and a leader in mobile-centric, zero trust solutions that go beyond traditional approaches to security by utilizing a more comprehensive set of attributes to grant secure access. MobileIron products and services validate the device, establish user context, check application authorization, verify the network, and detect and mitigate threats before granting secure access to a device or user. We were incorporated in Delaware in July 2007 and are headquartered in Mountain View, California, with additional sales and support presence in North America, Europe, the Middle East, Asia and Australia and employees in India primarily focused on research and development. Our principal executive offices are located at 490 East Middlefield Road, Mountain View, CA 94043, and our telephone number is (650) 919-8100. Our website is www.mobileiron.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this proxy statement or any other report or document we file with or furnish to the Securities and Exchange Commission (the “SEC”). Shares of our common stock are listed on The Nasdaq Global Select Market under the symbol “MOBL”. For additional information about us and our business, please refer to “Where You Can Find More Information” on page 95 of this proxy statement.
Ivanti, Inc.
Ivanti automates IT and Security Operations to discover, manage, secure and service from cloud to edge. From PCs to mobile devices, VDI, and the data center, Ivanti discovers IT assets on-premises, in cloud, and at the edge, improves IT service delivery, and reduces risk with insights and automation. Ivanti also helps organizations leverage modern technology in the warehouse and across the supply chain to improve delivery without modifying backend systems. Ivanti is a privately held company headquartered in Salt Lake City, Utah and has offices in multiple locations throughout the world.
Oahu Merger Sub, Inc.
Merger Sub is a Delaware corporation and wholly owned subsidiary of Ivanti formed solely for the purposes of entering into the merger agreement and engaging in the transactions contemplated by the merger agreement. Merger Sub has not engaged in any business to date except for activities incidental to its incorporation and activities undertaken in furtherance of the merger. Upon completion of the merger, Merger Sub will merge with and into MobileIron and will cease to exist.
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The Special Meeting (page 25)
The special meeting of our stockholders will be held on November 24, 2020 at 10:00 a.m., Pacific Time. The special meeting will be a virtual meeting of stockholders, which will be conducted online via a live audio webcast. Holders of record of MobileIron common stock at the close of business on October 23, 2020, the record date for the special meeting, will be able to attend the special meeting, submit questions and vote online during the meeting by visiting www.virtualshareholdermeeting.com/MOBL2020SM.
The Proposals (page 25)
At the special meeting, you will be asked to consider and vote on:
a proposal to adopt the merger agreement (the “merger proposal”);
a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger (the “merger-related compensation proposal”); and
a proposal to approve any adjournment of the special meeting to a later date or time, if necessary or appropriate, including for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to adopt the merger agreement (the “adjournment proposal”).
We do not expect that any matters other than the proposals set forth above will be brought before the special meeting, and only matters specified in the notice of the meeting may be acted upon at the special meeting.
Recommendations of Our Board (page 25)
After careful consideration, our board of directors (the “Board”) has unanimously determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to and in the best interests of MobileIron and its stockholders and approved and declared advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement. Accordingly, our Board recommends that you vote “FOR” the merger proposal. In addition, our Board recommends that you vote “FOR” the merger-related compensation proposal and that you vote “FOR” the adjournment proposal.
For more information concerning the recommendation of our Board with respect to the merger and the merger agreement, see “Proposal 1: Proposal to Adopt the Merger Agreement—Recommendations of Our Board and Reasons for the Merger” beginning on page 28.
Record Date, Notice and Quorum (page 25)
All holders of record of our common stock as of the close of business on October 23, 2020, the record date for the special meeting, are entitled to receive notice of and attend the special meeting or any postponement or adjournment of the special meeting. Each common stockholder will be entitled to cast one vote on each matter presented at the special meeting for each share of common stock that such holder owned as of the close of business on the record date. As of the close of business on the record date, there were 118,584,315 shares of MobileIron common stock outstanding and entitled to vote at the special meeting.
A quorum will be present if stockholders holding at least a majority of the outstanding shares of MobileIron common stock entitled to vote are present online at the meeting, by remote communication, if applicable, or represented by proxy. A quorum is necessary to transact business at the special meeting. Your shares of MobileIron common stock will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee), if you vote online at the meeting or you attend the special meeting but abstain from voting. Broker non-votes will not be counted toward the quorum requirement.
Required Vote (page 25)
Completion of the merger requires approval of the merger proposal by the affirmative vote of stockholders holding at least a majority of the outstanding shares of MobileIron common stock entitled to vote on the proposal as of the close of business on the record date for the special meeting. Because the required vote for this
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proposal is based on the number of votes our common stockholders are entitled to cast rather than on the number of votes actually cast, if you fail to authorize a proxy or vote online at the meeting (including by abstaining), or fail to instruct your broker on how to vote, such failure will have the same effect as votes cast “AGAINST” the merger proposal.
In addition, the approval of the merger-related compensation proposal and the approval of the adjournment proposal each requires the affirmative vote of a majority of the votes cast on the proposal. In addition, our bylaws permit the chairman of the special meeting, acting in his or her own discretion and without any action by our stockholders, to adjourn the special meeting to a later date and time and at a place announced at the special meeting. Approvals of the merger-related compensation proposal and the adjournment proposal are not conditions to completion of the merger.
Abstentions and Broker Non-Votes (page 26)
Abstentions will be treated as present at the special meeting for purposes of determining the presence or absence of a quorum. Abstentions will have the same effect as votes cast “AGAINST” the merger proposal but will have no effect on the other proposals. Broker non-votes will not be treated as present at the special meeting for purposes of determining the presence or absence of a quorum, so failure to provide instructions to your broker or other nominee on how to vote will result in your shares not being counted as present at the meeting. A broker non-vote occurs when a nominee, such as a broker or bank, holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary authority to vote with respect to that proposal and has not received instructions with respect to that proposal from the beneficial owner. In the event that a broker, bank, custodian, nominee or other record holder of our common stock indicates on a proxy that it does not have discretionary authority to vote certain shares on a particular proposal, then those shares will be treated as broker non-votes with respect to that proposal. The proposals to be considered and voted upon at the special meeting are regarded as non-routine matters, and your broker or other nominee may not vote on these proposals without instructions from you.
Votes by our Directors and Executive Officers (page 26)
As of the close of business on the record date, our directors and executive officers owned and are entitled to vote an aggregate of approximately 1,613,046 shares of our common stock, entitling them to exercise approximately 1.4% of the voting power of our common stock entitled to vote at the special meeting. Our directors and executive officers have informed us that they intend to vote the shares of our common stock that they own in favor of the merger proposal, the merger-related compensation proposal and the adjournment proposal.
Proxies; Revocation (page 26)
Any of our common stockholders of record entitled to vote may authorize a proxy by returning the enclosed proxy card, authorizing their proxy or voting instructions by telephone or through the Internet, or by voting online during the special meeting. If the shares of our common stock that you own are held in “street name” by your broker, you should instruct your broker on how to vote your shares using the instructions provided by your broker.
Any proxy given by our common stockholders may be revoked at any time prior to its exercise by your delivery of a properly executed, later-dated proxy card relating to the same shares of our common stock, by authorizing your proxy by telephone or through the Internet at a later date than your previously authorized proxy by telephone or through the Internet in accordance with the instructions on the proxy card at any time before your proxy is exercised at the special meeting stating that the proxy is revoked, provided such written notice is received before your proxy is exercised at the special meeting, by your filing a written revocation of your proxy bearing a date later than the date of the proxy with our Secretary or by voting online during the special meeting (your attendance at the special meeting virtually will not, by itself, revoke your proxy, you must vote virtually at the special meeting to revoke your proxy). If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank. If you are a MobileIron stockholder of record, your proxy must be received by telephone or the Internet by 11:59 p.m., Eastern Time, on November 23, 2020 in order for your shares to be voted at the special meeting.
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The Merger (page 28)
Pursuant to the terms of the merger agreement, subject to the satisfaction or waiver of certain conditions set forth in the merger agreement and the applicable provisions of the Delaware General Corporation Law (the “DGCL” ), at the effective time of the merger (i) Merger Sub will be merged with and into the Company, (ii) the separate existence of Merger Sub will cease and (iii) MobileIron will continue as the surviving corporation in the merger and as a wholly owned subsidiary of Ivanti. Under the terms of the merger agreement, at the effective time of the merger, each share of our common stock that is outstanding immediately prior to the effective time of the merger (other than shares of common stock (i) held by the Company as treasury stock, (ii) owned by Ivanti or Merger Sub, (iii) owned by any direct or indirect wholly owned subsidiary of Ivanti or Merger Sub or (iv) held by stockholders who have neither voted in favor of the merger proposal nor consented thereto in writing and who have properly and validly exercised their statutory rights of appraisal in respect of such shares of common stock in accordance with Section 262 of the DGCL as described further under “Proposal 1: Proposal to Adopt the Merger Agreement—Appraisal Rights” beginning on page 58 of this proxy statement) will be canceled and extinguished and automatically converted into the right to receive cash in the amount equal to $7.05 per share, without interest and less any withholding taxes required to be withheld in respect thereof (the “merger consideration”).
Opinion of MobileIron’s Financial Advisor (page 39)
On September 26, 2020, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Board, to the effect that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the merger consideration to be offered to the holders of common stock of the Company in the merger is fair, from a financial point of view, to such stockholders.
The full text of Barclays’ written opinion, dated as of September 26, 2020, is attached as Annex C to this proxy statement. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are urged to read the opinion carefully in its entirety.
For a further discussion of Barclays' opinion, see the section entitled “Proposal 1: Proposal to Adopt the Merger Agreement—Opinion of MobileIron’s Financial Advisor”
Treatment of Equity Awards in the Merger (page 51)
Company Options
At the effective time of the merger, each unexpired, unexercised and outstanding option to purchase shares of our common stock granted by the Company under any of the Company equity plans (each, a “Company Option”) that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such vested Company Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such vested Company Option.
At the effective time of the merger, each unvested Company Option that is subject to an Acceleration Provision (as defined below) (each, an “Accelerating Option”) will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such Accelerating Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such Accelerating Option. Such amount will be payable at the same time(s) that the applicable Accelerating Option would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with us, our successors or any of their affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company Option that is not an Accelerating Option and that is unvested immediately prior to the effective time of the merger and each vested Company Option that has an exercise price that is equal to or greater than
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$7.05 will be canceled at the effective time of the merger without payment or consideration (in each case, subject to consummation of the merger).
Treatment of Company RSUs
At the effective time of the merger, each unexpired, unexercised and outstanding restricted stock unit granted by the Company under any of the Company equity plans (each, a “Company RSU”) that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof).will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such vested Company RSU award multiplied by (ii) $7.05.
At the effective time of the merger, each unvested Company RSU that is subject to an Acceleration Provision (each, an “Accelerating RSU”) that is outstanding immediately prior to the effective time of the merger will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such Accelerating RSU award multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating RSU would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with us, our successors or any of their affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company RSU that is not an Accelerating RSU and that is unvested immediately prior to the effective time of the merger will be cancelled at the effective time of the merger without consideration (subject to consummation of the merger).
Treatment of Company PSUs
At the effective time of the merger, each unexpired, unexercised and outstanding performance-based restricted stock unit granted by the Company under any of the Company equity plans (each, a “Company PSU”) that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such vested Company PSU award multiplied by (ii) $7.05.
At the effective time of the merger, each unvested Company PSU that is subject to an Acceleration Provision (an “Accelerating PSU”) that is outstanding immediately prior to the effective time of the merger will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the maximum number of target shares of our common stock subject to such Accelerating PSU award multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating PSU would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with us, our successors or any of their affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company PSU that is not an Accelerating PSU and that is unvested immediately prior to the effective time of the merger will be cancelled at the effective time of the merger without consideration (subject to consummation of the merger).
“Acceleration Provision” means an individual’s right to receive accelerated vesting of any outstanding Company RSUs, Company PSUs or Company Options as set forth in an individual employment agreement with us or pursuant to the MobileIron, Inc. Severance Benefit Plan (the “Severance Plan”).
For a more detailed description of the treatment of Company equity awards, see the section of this proxy statement captioned “The Merger Agreement — Interests of our Named Executive Officers and Directors in the Merger” beginning on page 51.
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Treatment of Company Stock Settled Bonuses
In connection with the closing of the merger, Ivanti will assume the Company’s Nine-Month Bonus Plans and Three-Month Bonus Plans.
Under the Nine-Month Plans, the Company’s employees who participate are eligible to receive a cash bonus equal to the product obtained by multiplying (x) each Company employee’s full bonus entitlement under the Company stock-settled bonus plans for the 2020 calendar year, based on the greater of (A) performance at target levels and (B) actual performance from January 1, 2020 through September 30, 2020, with such level of achievement determined by the Company by (y) 75%.
Under the Three-Month Plans, the Company’s employees who participate are eligible to receive a cash bonus equal to the product obtained by multiplying (x) each Company employee’s full bonus entitlement under the Company stock-settled bonus plans for the 2020 calendar year, based on the greater of (A) performance at target levels and (B) actual performance from October 1, 2020 through the earlier of December 31, 2020 and the effective time for the merger, with such level of achievement determined by the Company by (y) 25%.
In the case of the Three-Month Plans and the Nine-Month Plans, the level of achievement will be determined by the Company based on the application of the metrics and terms previously adopted by the Company. The Three-Month Plans and the Nine-Month Plans will be paid no later than the first payroll date following February 28, 2021; provided that, such bonuses will only be paid to a Company employee participating in such bonus plans who is employed by the Company on the applicable date of payment of such bonus and any employee who is terminated by the Company or one of its subsidiaries, as applicable, without cause or who resigns due to a constructive termination prior to February 28, 2021 will remain entitled to payment of such any such bonus. The terms of the Three-Month Plans and the Nine-Month Plans are binding on the Company as well as any successor.
Ivanti was not involved in the Company's consideration of the treatment of the stock settled bonuses.
Financing (page 48)
The total amount of funds required to complete the merger and pay related fees and expenses will be financed through a combination of financing sources, including the following:
Morgan Stanley Senior Funding, Inc. (“MSSF”), Bank of America, N.A. (“Bank of America”), UBS AG Stamford Branch (“UBS AG”) and Bank of Montreal (“BMO” and, together with MSSF, Bank of America, UBS AG and BMO, collectively, the “Lenders”), have committed, severally and not jointly, to provide debt financing in the aggregate principal amount of up to $1.995 billion to consummate (i) the merger and (ii) the acquisition (the “Private Company Acquisition”) of another privately-owned target company (the “Private Company Target”), consisting of a (a) revolving credit facility in the principal amount of up to (x) $175 million if both the merger and the Private Company Acquisition are consummated or (y) $125 million if only the merger or the Private Company Acquisition is consummated) and (b) term loan facility in the principal amount of up to $1.82 billion, of which a portion equal to (x) $840 million will be used to repay Ivanti’s existing indebtedness, (y) $575 million will be used to complete the merger and pay related fees and expenses (the “MobileIron Term Loan Tranche”) and (z) $405 million will be used to pay the purchase price with respect to the Private Company Acquisition (the “Private Company Term Loan Tranche”), on the terms and subject to the conditions set forth in a debt commitment letter, dated as of September 26, 2020 (the “debt commitment letter”), which was delivered to Ivanti in advance of the execution of the merger agreement;
Ivanti will (a) issue “Rule 144A-for-life” senior unsecured notes generating up to $560 million in gross proceeds (the “Notes”) in a private placement, or to the extent the Notes are not, or cannot be, issued on or prior to the Closing Date or the gross proceeds of the Notes are less than $560 million, the Lenders have committed, severally and not jointly, to provide debt financing in the form of a senior unsecured bridge facility, in the aggregate principal amount of up to $560 million (the “Bridge Facility”) to consummate the (i) merger and (ii) the Private Company Acquisition, of which a portion equal to (x) $260 million will be used to repay Ivanti’s existing indebtedness, (y) $175 million will be used to complete the merger and pay related fees and expenses (the “MobileIron Bridge Loan Tranche) and (z) $125 million will be used to pay the purchase price with respect to the Private Company
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Acquisition (the “Private Company Bridge Loan Tranche”), on the terms and subject to the conditions set forth in the debt commitment letter, which was delivered to Ivanti in advance of the execution of the merger agreement or (b) exercise its right, on or prior to 20 business days after the date of the debt commitment letter, to arrange lenders to commit to provide second lien financing to replace the entire aggregate principal amount of the Bridge Facility and such lenders will fund a second lien facility in lieu of the issuance of the Notes or the Bridge Facility; and
Icon Software Partners, L.P., Icon Software Partners B, L.P., TA XIII-A, L.P., TA XIII-B, L.P. and TA Investors XIII, L.P., (each a “guarantor” and collectively, the “guarantors”) have, severally and not jointly, committed to provide equity financing in an aggregate amount of up to $100 million, on the terms and subject to the conditions set forth in an equity commitment letter, dated as of September 26, 2020 (the “equity commitment letter”), which was delivered to Ivanti concurrently with the execution of the merger agreement.
Limited Guaranty (page 50)
Concurrently with the execution of the merger agreement, the guarantors have executed a limited guaranty in favor of the Company pursuant to which, subject to the terms and conditions contained therein, the guarantors agreed to guarantee, on a several basis, if applicable, Ivanti's obligations to pay any parent termination fee to the Company under the merger agreement and, if applicable, all damages for any willful breach by Ivanti or Merger Sub of the merger agreement. The guaranteed obligations are subject to an aggregate cap in the amount of $65.25 million and an individual cap applicable to each guarantor equal to such guarantor’s specified percentage share of the guaranteed obligations.
Interests of Our Named Executive Officers and Directors in the Merger (page 51)
When considering the recommendation of our Board that you vote to approve the merger proposal, you should be aware that our Board and executive officers have interests in the merger that are different from, or in addition to, your interests as a stockholder. Our Board was aware of these interests and considered them, among other matters, during its deliberations on the merits of the merger, in evaluating and overseeing the negotiation of the merger agreement, in reaching its decision to approve and adopt the merger agreement, and in deciding to recommend, and recommending that our stockholders vote in favor of the merger agreement. Interests of our named executive officers that may be different from or in addition to the interests of our stockholders generally include, among others:
in the case of our non-employee directors, their Company RSUs will fully accelerate in exchange for a cash payment;
in the case of our current named executive officers, their Accelerating RSUs, Accelerating PSUs and Accelerating Options will be converted to a cash payment payable the same time(s) that the underlying equity awards would have vested in accordance with their terms and will remain subject to our named executive officers remaining in continuous service with us or our successors though the applicable vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of their employment in connection with or following the merger will continue to apply);
in the case of our current named executive officers, the performance-based vesting conditions of their Company PSUs will be deemed satisfied at target level of performance and 50% of their total target number of Company PSUs will single-trigger vest upon the consummation of a change of control transaction occurs prior to the later of December 31, 2020 or the termination of the merger agreement;
in the case of our current named executive officers, in the event of a qualifying termination of employment within the period of three months prior to or one year following the effective time of the merger, they will be eligible to receive certain contractual cash severance payments, full acceleration of Company equity awards, and continued health and life insurance benefits for a specified period of time following such termination of employment; and
in the case of our current named executive officers, if their employment is terminated by the Company without cause or if they resign due to a constructive termination, in each case, prior to February 28, 2021, they will remain entitled to payment of any bonus under our Nine-Month Plans and Three-Month Plans (as discussed below).
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For a more detailed description of the treatment of Company equity awards, see the section of this proxy statement captioned “The Merger — Interests of our Named Executive Officers and Directors in the Merger” beginning on page 51.
No Solicitation or Negotiation of Acquisition Proposals (page 73)
Except as permitted by the merger agreement, from and after the date of the merger agreement until the earlier to occur of the termination of merger agreement and the effective time of the merger, MobileIron and its subsidiaries will not, and will not instruct, authorize or knowingly permit any of its representatives to, directly or indirectly:
solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an acquisition proposal (as defined under “The Merger Agreement—Solicitation of Acquisition Proposals; Board Recommendation Change.”);
furnish to any person (other than to Ivanti, Merger Sub or any designees of Ivanti or Merger Sub or any of their representatives) any non-public information relating to MobileIron or any of its subsidiaries or afford to any person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of MobileIron or any of its subsidiaries (other than Ivanti, Merger Sub or any designees of Ivanti or Merger Sub or any of their representatives), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an acquisition proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an acquisition proposal;
participate or engage in discussions or negotiations with any person with respect to an acquisition proposal (subject to certain limited exceptions);
approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an acquisition proposal (subject to certain limited exceptions); or
enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an acquisition transaction (as defined under “The Merger Agreement—Solicitation of Acquisition Proposals; Board Recommendation Change.”), other than an acceptable confidentiality agreement (as defined under “The Merger Agreement—Solicitation of Acquisition Proposals; Board Recommendation Change.”) (we refer to any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an acquisition transaction, other than an acceptable confidentiality agreement an “alternative acquisition agreement”).
From the date of the merger agreement until the earlier to occur of the termination of the merger agreement and the effective time of the merger, MobileIron will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement solely to the extent that such provision prohibits or purports to prohibit a confidential proposal being made to our board of directors (or any committee thereof).
Except as permitted by the merger agreement, from and after the date of the merger agreement until the earlier to occur of the termination of the merger agreement and the effective time of the merger, MobileIron will cease and cause to be terminated any discussions or negotiations with any person and its representatives that would be prohibited by the non-solicitation provisions of the merger agreement, request the prompt return or destruction of all non-public information concerning MobileIron or its subsidiaries furnished to any person with whom a confidentiality agreement in contemplation of an acquisition transaction was entered into at any time within the six month period immediately preceding the date of the merger agreement and will cease providing any further information with respect to MobileIron or any acquisition proposal to any such person or its representatives, other than through public disclosures that MobileIron makes in the ordinary course of business (for the avoidance of doubt, none of which shall be intended to facilitate an acquisition proposal); and MobileIron will terminate all access granted to any such person and its representatives to any physical or electronic data room.
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Conditions to the Merger (page 81)
The respective obligations of MobileIron, Ivanti and Merger Sub to consummate the merger are subject to the satisfaction or waiver (to the extent permitted by applicable law) prior to the effective time of the merger of the following conditions:
receipt by MobileIron of the requisite stockholder approval at the special meeting;
any waiting periods (and any extensions thereof), applicable to the Merger pursuant to the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), will have expired or otherwise been terminated, or all requisite consents pursuant thereto, and pursuant to any other antitrust laws or investment screening laws, will have been obtained; and
no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the merger will be in effect, and no statute, rule, regulation or order will have been enacted, entered, enforced or deemed applicable to the merger, that in each case prohibits, makes illegal, or enjoins the consummation of the merger.
The obligations of Ivanti and Merger Sub to consummate the merger are subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the effective time of the merger of each of the following further conditions, any of which may be waived exclusively by Ivanti:
the representations and warranties of MobileIron regarding organization and good standing, corporate power and enforceability, the inapplicability of certain takeover statutes, certain aspects of MobileIron’s capitalization, the absence of a company material adverse effect since July 1, 2020, and brokers’ fees that (i) are not qualified by company material adverse effect or other materiality qualifications must be true and correct in all material respects as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), and (ii) that are qualified by company material adverse effect or other materiality qualifications must be true and correct in all respects (without disregarding such company material adverse effect or other materiality qualifications) as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time);
the representations and warranties of MobileIron relating to certain aspects of MobileIron’s capitalization must true and correct in all respects as of the closing date (in each case (i) without giving effect to any company material adverse effect or other materiality qualification and (ii) other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), except where the failure to be so true and correct in all respects would not reasonably be expected to result in additional cost, expense or liability to MobileIron or Ivanti, individually or in the aggregate, that is more than $435,000;
the other representations and warranties of MobileIron set forth in the merger agreement must be true and correct (without giving effect to any materiality or company material adverse effect qualifications set forth therein) as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), except for such failures to be true and correct that would not have a company material adverse effect;
MobileIron must have performed and complied in all material respects with the covenants of the merger agreement required to be performed and complied with by it at or prior to the closing;
the receipt by Ivanti and Merger Sub of a certificate of MobileIron, validly executed for and on behalf of MobileIron and in its name by a duly authorized executive officer thereof, certifying as to the satisfaction of all of the above conditions; and
no company material adverse effect will have occurred after the date of the merger agreement that is continuing.
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MobileIron’s obligations to consummate the merger are subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the effective time of the merger of each of the following further conditions, any of which may be waived exclusively by MobileIron:
the representations and warranties of Ivanti and Merger Sub set forth in the merger agreement must be true and correct on and as of the closing date with the same force and effect as if made on and as of such date, except for (i) any failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the merger or the ability of Ivanti and Merger Sub to fully perform their respective covenants and obligations pursuant to merger agreement; and (ii) those representations and warranties that address matters only as of a particular date, which representations will have been true and correct as of such particular date, except for any failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the merger or the ability of Ivanti and Merger Sub to fully perform their respective covenants and obligations pursuant to the merger agreement;
Ivanti and Merger Sub must have performed and complied in all material respects with the covenants of the merger agreement required to be performed and complied with by them at or prior to the closing; and
the receipt by MobileIron of a certificate of Ivanti and Merger Sub, validly executed for and on behalf of Ivanti and Merger Sub and in their respective names by a duly authorized executive officer thereof, certifying as to the satisfaction of all of the above conditions.
Termination of the Merger Agreement (page 82)
MobileIron and Ivanti may, by mutual written agreement by determination of their respective boards of directors, terminate the merger agreement (whether prior to or after requisite stockholder approval) at any time prior to the effective time of the merger.
The merger agreement may also be terminated at any time prior to the effective time of the merger, as follows:
by either Ivanti or MobileIron if:
(i) any final, non-appealable permanent injunction or other permanent judgment or order issued by any court of competent jurisdiction or other legal regulatory restraint or prohibition preventing the consummation of the merger is in effect; or (ii) any statute, rule, regulation or order has been enacted, entered, enforced or becomes applicable to the merger that prohibits, makes illegal or enjoins the consummation of the merger, except that neither party has the right to terminate if such party has breached in any material respect certain covenants with respect to using reasonable best efforts, taking necessary actions and making antitrust filings in connection with the consummation of the merger and certain covenants with respect to transaction litigation under the merger agreement before asserting its right to terminate pursuant to this termination right;
the merger has not been consummated by 11:59 p.m., Pacific time, on the later of March 26, 2021 or, if the marketing period for the debt financing has started and is in effect at such date, then the second business day following the end of the marketing period for the debt financing (but in no event shall such date be later than the 17th business day following March 26, 2021) (which we refer to as the “termination date”), provided, that if the condition set forth in the second bullet under the first paragraph of “—Conditions to the Merger” has not been satisfied or waived but all other conditions in the merger agreement have been satisfied or waived (including that those conditions that by their terms are to be satisfied at closing would be satisfied if closing were to occur on such date), the termination date may be extended by either Ivanti or MobileIron by written notice to the other party to a date not beyond June 26, 2021, and provided further, that the right to terminate the merger agreement pursuant to this termination right will not be available to (i) (1) Ivanti if MobileIron has the valid right to terminate the merger agreement pursuant to the sixth bullet of this paragraph; or (2) MobileIron if Ivanti has the valid right to terminate the merger agreement pursuant to the fourth bullet of this paragraph; and (ii) either party whose action or failure to act (which action or failure to act constitutes a breach by such party of the merger agreement) has been the primary cause of, or primarily resulted in, either (a) the failure to satisfy
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the conditions to the obligations of the terminating party to consummate the merger pursuant to the merger agreement prior to the termination date; or (b) the failure of the effective time of the merger to have occurred prior to the termination date;
MobileIron fails to obtain the requisite stockholder approval at the special meeting (subject to certain limited exceptions) (we refer to such termination right as the “stockholder vote failure termination right”);
by Ivanti, if:
MobileIron has breached or failed to perform in any material respect any of its representations, warranties, covenants or other agreements contained in the merger agreement, which breach or failure to perform would result in a failure of the conditions in the first and second paragraph of “—Conditions to the Merger,” except that if such breach is capable of being cured by the termination date, Ivanti will not be entitled to terminate the merger agreement pursuant to this termination right prior to the delivery by Ivanti to MobileIron of written notice of such breach, delivered at least thirty days prior to such termination (or such shorter period of time as remains prior to the termination date, the shorter of such periods we refer to here as the “MobileIron breach notice period”), which states Ivanti’s intention to terminate the merger agreement pursuant to this termination right and the basis for such termination, it being understood that Ivanti will not be entitled to terminate if the breach has been cured within the MobileIron breach notice period (to the extent capable of being cured), and further provided, that Ivanti will not be entitled to terminate the merger agreement if Ivanti or Merger Sub is then in material breach of any of their representations, warranties, covenants or agreements set forth in the merger agreement, which breach would result in a failure of a condition set forth in the first or second bullet under the third paragraph of “—Conditions to the Merger” (we refer to such termination right as the “MobileIron breach termination right”);
at any time after the date of the merger agreement, MobileIron’s Board (or a committee thereof) has effected a Board recommendation change, except that Ivanti will only have the right to terminate the merger agreement pursuant to this provision if it exercises such right no later than 5:00 pm California time on the earlier of (i) the date that is one business day immediately preceding the initial convening of MobileIron’s stockholder meeting, and (ii) the twentieth day following the date on which MobileIron has notified Ivanti that the Board has effected a Board recommendation change (we refer to such termination right as the “Board recommendation change termination right”);
by MobileIron if:
Ivanti or Merger Sub has breached or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained in the merger agreement, which would result in a failure of a condition set forth under the first or third paragraph of “—Conditions to the Merger,” except that if such breach is capable of being cured by the termination date, MobileIron will not be entitled to terminate the merger agreement pursuant to this termination right prior to the delivery by MobileIron to Ivanti of written notice of such breach, delivered at least thirty days prior to such termination (or such shorter period of time as remains prior to the termination date, we refer to the shorter of such periods as the “Ivanti breach notice period”), stating MobileIron’s intention to terminate the merger agreement and the basis for such termination, provided MobileIron will not be entitled to terminate the merger agreement if such breach has been cured within the Ivanti breach notice period (to the extent capable of being cured) and provided, further, however, that MobileIron shall not be entitled to terminate the merger agreement if MobileIron is then in material breach of any of its representations, warranties, covenants or agreements set forth in the merger agreement, which breach would result in a failure of a condition set forth in the first or second bullet under the second paragraph of “—Conditions to the Merger”;
at any time prior to receiving the requisite stockholder approval if (i) MobileIron has received a superior proposal (as defined under “The Merger Agreement—Solicitation of Acquisition Proposals; Board Recommendation Change.”); (ii) MobileIron’s Board (or a committee thereof)
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has authorized MobileIron to enter into a definitive alternative acquisition agreement to consummate the acquisition transaction contemplated by that superior proposal; (iii) MobileIron has complied in all material respects with the applicable provisions of the merger agreement related to such superior proposal; and (iv) concurrently with such termination MobileIron pays the MobileIron termination fee due to Ivanti in accordance with the merger agreement (we refer to such termination right as the “superior proposal termination right”); provided, however, that such termination will not be effective unless MobileIron has paid, or has caused to be paid, to Ivanti the MobileIron termination fee; or
at any time prior to the effective time of the merger if (i) all of the mutual closing conditions and the conditions precedent to Ivanti’s and Merger Sub’s obligations have been and continue to be satisfied or waived (other than conditions that by their terms are to be satisfied at the closing, each of which is capable of being satisfied at the closing or has been previously irrevocably waived by Ivanti), (ii) MobileIron has irrevocably notified Ivanti at least two business days prior to such termination in writing (a) that it is ready, willing and able to consummate the closing throughout such two business day period, and (b) that all conditions precedent to MobileIron’s obligations have been satisfied or waived (other than those conditions that by their terms are to be satisfied at closing, each of which is capable of being satisfied closing), and (iii) Ivanti and Merger Sub fail to consummate the closing in accordance with the merger agreement by the end of such two business day period (we refer to such termination right as the “financing failure termination right”).
If the merger agreement is validly terminated pursuant to the termination rights above, the merger agreement will be of no force or effect without liability of any party to the other parties, except that certain specified provisions of the merger agreement will survive such termination in accordance with their terms, and nothing shall relieve any party from any liability for damages for any willful breach.
Termination Fees (page 84)
MobileIron Termination Fee
Ivanti will be entitled to receive $30.45 million in cash (which we refer to as the “MobileIron termination fee”) if:
the merger agreement is validly terminated pursuant to the stockholder vote failure termination right or the MobileIron breach termination right;
following the execution and delivery of the merger agreement and prior to (i) in the case of the stockholder vote failure termination right, the special meeting (or any adjournment or postponement thereof) or (ii) in the case of the MobileIron breach termination right, the termination of the merger agreement pursuant to the MobileIron breach termination right, an acquisition proposal for an acquisition transaction has been publicly announced or disclosed and not withdrawn or otherwise abandoned; and
within one year following the termination of the merger agreement pursuant to the stockholder vote failure termination right or the MobileIron breach termination right, as applicable, either an acquisition transaction is consummated or MobileIron enters into a definitive agreement providing for the consummation of an acquisition transaction (which acquisition transaction is subsequently consummated),
in which case MobileIron will concurrently with the consummation of such acquisition transaction, pay to Ivanti an amount equal to $30.45 million.
For purposes of the MobileIron termination fee, all references to “20%” in the definition of “acquisition transaction” will be deemed to be references to “50%.”
In addition, if the merger agreement is validly terminated pursuant to the Board recommendation change termination right or the superior proposal termination right, then MobileIron must pay to Ivanti the MobileIron termination fee either (i) if terminated pursuant to the Board recommendation change termination right, promptly (and in any event within two business days) following such termination or (ii) if terminated pursuant to the superior proposal termination right, substantially concurrently with such termination.
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Ivanti Termination Fee
MobileIron will be entitled to receive $65.25 million in cash (which we refer to as the “Ivanti termination fee”) from Ivanti if the merger agreement is terminated by MobileIron pursuant to the financing failure termination right, in which case Ivanti must pay MobileIron the Ivanti termination fee within two business days after such termination.
Remedies (page 86)
Subject to the terms of the merger agreement (and the limitations set forth therein), Ivanti’s payment of the Ivanti termination fee to the extent owed in accordance with the merger agreement will be the only monetary damages payable by Ivanti, Merger Sub or any of their affiliates for breaches under the merger agreement, the limited guaranty, the equity commitment letter, any other agreement executed in connection with the merger agreement and the transactions contemplated in each such agreement, the termination of the merger agreement, the failure to consummate the merger or any claims or actions under applicable law arising out of any such breach, termination or failure, subject to the limitations described under “The Merger Agreement—Sole and Exclusive Remedy.”
MobileIron’s payment of the MobileIron termination fee, to the extent owed, will be the only monetary damages that Ivanti and Merger Sub and each of their respective affiliates may recover from (a) MobileIron and any of its affiliates; and (b) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, general or limited partners, stockholders and assignees of each of MobileIron and its affiliates (the persons in clauses (a) and (b) we refer to collectively as the “MobileIron related parties”) in respect of the merger agreement, any agreement executed in connection with the merger agreement and the transactions contemplated therein, the termination of the merger agreement, the failure to consummate the merger or any claims or actions under applicable law arising out of any such breach, termination or failure.
MobileIron and Ivanti have agreed that irreparable damage, for which monetary damages would not be an adequate remedy, would occur in the event that any of the provisions of the merger agreement were not performed in accordance with their specific terms or were otherwise breached. The parties have agreed that, subject to certain specified limitations in the merger agreement, they will be entitled to injunctions or other specific performance or equitable relief to prevent breaches and enforce the terms of the merger agreement, the equity commitment letter or the limited guaranty, in addition to any other remedy to which such party is entitled.
Regulatory Matters (page 55)
Under the merger agreement, the merger cannot be completed until the waiting periods (and any extensions thereof, if any) applicable to the merger under the HSR Act, the German Act Against Restraints of Competition of 1958, as amended (after the merger is notified to the German Federal Cartel Office (Bundeskartellamt, the “FCO”)), and the Austrian Competition Act (after the merger is notified to the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde, the “FCA”)) have expired or otherwise been terminated, or all requisite consents pursuant to those laws have been obtained.
Material U.S. Federal Income Tax Consequences (page 56)
The receipt of cash in exchange for shares of MobileIron common stock pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. Accordingly, a “U.S. Holder” (as defined in “— Material U.S. Federal Income Tax Consequences”) will recognize taxable gain or loss in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. Holder’s adjusted tax basis in its shares of MobileIron common stock. The exchange of shares of MobileIron common stock for the merger consideration pursuant to the merger generally will not result in U.S. income tax to a “Non-U.S. Holder” (as defined in “— Material U.S. Federal Income Tax Consequences”) unless such Non-U.S. Holder has certain connections with the United States.
You should consult your own tax advisor regarding the particular tax consequences to you of the exchange of shares of MobileIron common stock for cash pursuant to the merger in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws). For more information, see the section of this proxy statement entitled “— Material U.S. Federal Income Tax Consequences” beginning on page 56.
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Delisting and Deregistration of Our Common Stock (page 63)
If the merger is completed, our common stock will no longer be traded on the Nasdaq Global Select Market and will be deregistered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”).
Litigation Relating to the Merger (page 79)
Since the announcement of the merger, two complaints have been filed by and purportedly on behalf of alleged MobileIron stockholders: one in the United States District Court for the District of Delaware, captioned Oliver Watson v. MobileIron, Inc., Tae Hea Nahm, Jessica Denecour, Kenneth Klein, James Tolonen, Simon Biddiscombe, Anjali Joshi and Rishi Bajaj, Case No. 1:20-cv-01418-UNA, filed October 22, 2020, and one in the United States District Court for the Southern District of New York, captioned Quentin S. Nash v. MobileIron, Inc., Simon Biddiscombe, Tae Hea Nahm, Jessica Denecour, Kenneth Klein, James Tolonen, Anjali Joshi and Rishi Bajaj, Case No. 1:20-cv-08767, filed October 21, 2020 (together, the “Actions”). The Actions each name as defendants MobileIron and each of the members of our Board. The Actions allege, among other things, that all defendants violated provisions of the Exchange Act insofar as this proxy statement preliminarily filed by MobileIron on October 14, 2020 allegedly omits material information with respect to the transactions contemplated therein that purportedly renders the preliminary proxy statement false and misleading. The complaints seek, among other things, injunctive relief, rescissory damages, declaratory judgment and an award of plaintiffs’ fees and expenses. The defendants believe the claims asserted in these complaints are without merit and intend to vigorously defend them.
Appraisal Rights (page 58)
Under the DGCL, our stockholders who do not vote for the merger proposal, or consent thereto in writing, will have the right to seek appraisal of the fair value of their shares as determined by the Delaware Court of Chancery, but only if they fully comply with all of the applicable requirements of the DGCL, including by properly and validly exercising their statutory rights of appraisal, which requirements are summarized in this proxy statement under “Proposal 1: Proposal to Adopt the Merger Agreement—Appraisal Rights” beginning on page 58 of this proxy statement. Any appraisal amount determined by the court could be more than, the same as, or less than the value of the merger consideration. Any stockholder intending to exercise appraisal rights must, among other things, submit a written demand for appraisal to the Company before the vote on the merger proposal and must not vote or otherwise submit a proxy in favor of the merger proposal. Failure to follow the procedures specified under the DGCL exactly will result in the loss of appraisal rights. Because of the complexity of the DGCL relating to appraisal rights, if you are considering exercising your appraisal rights, we encourage you to seek the advice of your own legal counsel. The discussion of appraisal rights contained in this proxy statement is not a full summary of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 of the DGCL that is attached as Annex B to this proxy statement.
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER
The following questions and answers address briefly some questions that you as a stockholder of MobileIron may have regarding the proposals being considered at the special meeting, the merger agreement and the merger. These questions and answers may not address all questions that may be important to you as a stockholder of the Company and therefore we urge you to carefully read the remainder of this proxy statement. Please refer to the more detailed information contained elsewhere in this proxy statement, including the annexes and the documents we refer to in this proxy statement.
Why am I receiving this proxy statement?
You are receiving this proxy statement because you have been identified as a stockholder of the Company as of the close of business on the record date for the determination of stockholders entitled to notice of the special meeting. This proxy statement contains important information about the merger and the special meeting of stockholders, and you should read this proxy statement carefully.
What is the proposed transaction for which I am being asked to vote?
The proposed transaction is the acquisition of MobileIron and its subsidiaries by Ivanti pursuant to the merger agreement. Once the adoption of the merger agreement has been approved by our stockholders and the other closing conditions under the merger agreement have been satisfied or waived, Merger Sub, a wholly owned subsidiary of Ivanti, will be merged with and into the Company, with the Company continuing as the surviving corporation and as a wholly owned subsidiary of Ivanti. Following the completion of the merger, you will no longer have any rights as a stockholder of MobileIron other than your right to receive the merger consideration. Following completion of the merger, shares of our common stock will no longer be listed on the Nasdaq Global Select Market and the registration of such shares under the Exchange Act is expected to be terminated. For additional information about the merger, please review the merger agreement attached to this proxy statement as Annex A and incorporated by reference into this proxy statement. We urge you to read the merger agreement carefully and in its entirety, as it is the principal document governing the merger.
As a common stockholder, what will I receive in the merger?
Each outstanding share of our common stock that you own immediately prior to the effective time of the merger will be converted into the right to receive the merger consideration, which is an amount equal to $7.05 in cash, without interest and less any applicable withholding taxes payable in respect thereof.
How does the merger consideration compare to the market price of the Company’s common stock?
The merger consideration represents a premium of approximately (1) 22.7% to the closing price of our common stock of $5.75 on August 17, 2020, (2) 26.4% to the trailing 30 day trading day average closing price of our common stock for the period ended August 17, 2020 and (3) a 41.2% premium to the trailing 90 day trading day average closing price of our common stock for the period ended August 17, 2020. We view August 17, 2020 as the last trading day on which the trading price of our common stock was unaffected by rumors with respect to the potential acquisition of the Company in light of the fact we received Ivanti’s initial written non-binding proposal on that date and the fact that on August 20, 2020 Bloomberg News published an article about acquisition rumors involving the Company. See “Proposal 1: Proposal to Adopt the Merger Agreement—Background of the Merger” beginning on page 28.
When do you expect the merger to be completed?
In order to complete the merger, MobileIron must obtain the stockholder approval described in this proxy statement, and the other closing conditions under the merger agreement must be satisfied or waived. We are working toward completing the merger as quickly as possible. If our stockholders vote to approve the adoption of the merger agreement, and assuming the other conditions to the merger are satisfied or waived, and Ivanti completes its financing for the merger, it is anticipated that the merger could be effective in the fourth quarter of 2020 or the first quarter of 2021, although MobileIron cannot assure completion by any particular date, if at all. Since the merger is subject to a number of conditions, the exact timing of the merger cannot be determined at this time.
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What happens if the merger is not completed?
If the adoption of the merger agreement is not approved by our stockholders, or if the merger is not completed for any other reason, our stockholders will not receive any payment for their shares of our common stock pursuant to the merger agreement. Instead, we will remain a public company and our common stock will continue to be registered under the Exchange Act and listed on the Nasdaq Global Select Market, and in some circumstances we may be required to pay to Ivanti a termination fee of $30.45 million in cash. See the section entitled “The Merger Agreement—Termination Fees—MobileIron Termination Fee” for a discussion of the circumstances under which such a termination fee may be required to be paid.
If the merger is completed, when can I expect to receive the merger consideration for my shares of MobileIron common stock?
It is expected that you will receive the merger consideration to which you are entitled promptly after the completion of the merger once you have provided the payment agent with any documentation required by the payment agent. For more information, see “Proposal 1: Proposal to Adopt the Merger Agreement—The Merger Agreement—Exchange and Payment Procedures” beginning on page 66.
What will happen to shares of MobileIron common stock that I currently own after the completion of the merger?
Following the completion of the merger, your shares of our common stock will be canceled and will represent only the right to receive your portion of the merger consideration. Trading in shares of our common stock on the Nasdaq Global Select Market will cease, price quotations for shares of our common stock will no longer be available and we will cease filing periodic and other reports with the SEC.
What will happen to the Company’s Employee Stock Purchase Plan?
Pursuant to the merger agreement, the Company has acted to provide, among other things, that (1) each individual participating in an offering period under the Company’s 2014 Employee Stock Purchase Plan (the “ESPP”) in progress on the date of the merger agreement will not be permitted to (A) increase his or her payroll contribution rate pursuant to the ESPP or (B) make separate non-payroll contributions to the ESPP on or following the date of the merger agreement, except as may be required by applicable law; (2) no individual who is not participating in the ESPP will be allowed to commence participation in the ESPP; and (3) any offering period that would otherwise be outstanding at the effective time of the merger will terminate no later than five days prior to the date on which the effective time of the merger occurs. The Company will make any pro rata adjustments as may be necessary to reflect the shortened offering period and will cause the exercise of each outstanding purchase right pursuant to the ESPP no later than one business day prior to the effective time of the merger.
Do any of the Company’s executive officers or directors have any interest in the merger that is different from mine?
Our executive officers and directors have interests in the merger that are different from, or in addition to, yours, pursuant to certain agreements between such executive officers and directors and the Company. These interests may be different from, or in conflict with, your interests as our stockholder. The members of our Board were aware of these additional interests and considered them, among other matters, during its deliberations on the merits of the merger, in evaluating and overseeing the negotiation of the merger agreement, in reaching its decision to approve and adopt the merger agreement, and in deciding to recommend, and recommending to our stockholders that they vote “FOR” the merger proposal. For a description of the interests of our executive officers in the merger, see “Proposal 1: Proposal to Adopt the Merger Agreement— Interests of Our Named Executive Officers and Directors in the Merger” beginning on page 51.
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What are stockholders voting on at the special meeting?
There are three matters scheduled for a vote at the special meeting:
a proposal to adopt the merger agreement (Proposal 1—Proposal to Adopt the Merger Agreement);
a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger (Proposal 2: Proposal to Approve on an Advisory Basis, the Merger-Related Compensation); and
a proposal to approve any adjournment of the special meeting to a later date or time, if necessary or appropriate, including for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to adopt the merger agreement (Proposal 3: Proposal to Approve the Adjournment of the Special Meeting).
Who is entitled to vote at the special meeting?
All of our common stockholders of record as of the close of business on October 23, 2020, the record date for the special meeting, are entitled to receive notice of and attend the special meeting or any postponement or adjournment of the special meeting. Common stockholders as of the close of business on the record date are entitled to vote at the special meeting or any postponement or adjournment of the special meeting. Each share of MobileIron common stock entitles you to one vote on each matter properly brought before the special meeting. As of the close of business on October 23, 2020, the record date for the special meeting, there were 118,584,315 shares of MobileIron common stock outstanding and entitled to vote.
What vote is required to approve the merger proposal?
Approval of the merger proposal requires the affirmative vote of stockholders holding at least a majority of the outstanding shares entitled to vote on the proposal as of the close of business on the record date for the special meeting. Because the required vote for this proposal is based on the number of votes our common stockholders are entitled to cast rather than on the number of votes actually cast, if you fail to authorize a proxy or vote online at the meeting (including by abstaining), or fail to instruct your broker on how to vote, such failure will have the same effect as votes cast “AGAINST” the merger proposal.
If you abstain from voting, fail to cast your vote in person or by proxy or if you hold your shares in “street name” and fail to give voting instructions to the record holder of your shares, it will have the same effect as a vote “AGAINST” Proposal 1.
What vote is requires to approve the merger-related compensation proposal and the adjournment proposal?
Approval, on a non-binding, advisory basis, of the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger (i.e., Proposal 2: the merger-related compensation proposal) and approval of any adjournments of the special meeting to a later date or time, if necessary or appropriate, including for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to approve the merger proposal (i.e., Proposal 3: the adjournment proposal) each require the affirmative vote of a majority of the votes cast on each such proposal at the special meeting. If you fail to vote by proxy or in person, or fail to instruct your broker on how to vote, such failure will have no effect on the outcome of such proposals assuming a quorum is present. For the purposes of these proposals, abstentions will not be counted as votes cast and will have no effect on the result of the votes. In addition, our bylaws permit the chairman of the special meeting, acting in his or her own discretion and without any action by our stockholders, to adjourn the special meeting to a later date and time and at a place announced at the special meeting.
Although the Board intends to consider the results from the vote on the merger-related compensation proposal, the vote is advisory only and, therefore, is not a condition to the closing of the merger, is not binding on us or Ivanti or any of our or its respective affiliates, and, if the merger proposal is approved by our stockholders and the merger is completed, the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger will be payable to our named executive officers even if this proposal is not approved.
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With respect to Proposals 2 and 3, if you abstain from voting or fail to vote, it will have no effect on the outcome of such proposals.
How does the MobileIron Board recommend I vote on the proposals?
Upon careful consideration, our Board unanimously recommends that you vote:
Proposal 1—“FOR” the merger proposal.
Proposal 2—“FOR” the merger-related compensation proposal.
Proposal 3—“FOR” for the adjournment proposal
Why am I being asked to consider and cast a non-binding, advisory vote to approve the compensation that may be paid or become payable to the Company’s named executive officers that is based on or otherwise relates to the merger?
In July 2010, the SEC adopted rules that require companies to seek a non-binding, advisory vote to approve certain compensation that may be paid or become payable to their named executive officers that is based on or otherwise relates to corporate transactions such as the merger. In accordance with the rules promulgated under the Exchange Act, we are providing our stockholders with the opportunity to cast a non-binding, advisory vote on compensation that may be paid or become payable to our named executive officers in connection with the merger. For additional information, see the section entitled “Proposal 2: Proposal to Approve, on an Advisory Basis, the Merger-Related Compensation” beginning on page 89.
How do I attend the Special Meeting?
The special meeting will be held via live interactive webcast on the Internet to allow greater participation. You may attend, vote and ask questions at the special meeting by following the instructions provided on the Notice to log in to www.virtualshareholdermeeting.com/MOBL2020SM. If you are a stockholder of record, you will be asked to provide the control number included in your proxy materials. If you are a beneficial owner of shares registered in the name of your broker, bank or other agent, follow the instructions from your broker or bank. The webcast of the special meeting will begin promptly at 10:00 a.m., Pacific Time. We encourage you to access the meeting prior to the start time. Online check-in will begin at 9:45 a.m., Pacific Time, and you should allow reasonable time for the check-in procedures.
How do I vote?
Vote by Proxy
Whether or not you plan to attend the special meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend and vote at the special meeting even if you have already voted by proxy.
If you are a stockholder of record, you may vote by proxy over the telephone, vote by proxy through the Internet or vote by proxy using a proxy card that you may request or that we may elect to deliver at a later time:
To vote over the telephone, dial toll-free 1-800-690-6903 using a touch-tone phone and follow the recorded instructions. You will be asked to provide the control number from the Notice. Your vote must be received by 11:59 p.m. Eastern Time on November 23, 2020 to be counted.
To vote through the Internet, go to www.proxyvote.com to complete an electronic proxy card. You will be asked to provide the control number from your Notice. Your vote must be received by 11:59 p.m. Eastern Time on November 23, 2020 to be counted.
To vote using the printed proxy card that may be delivered to you, simply complete, sign and date the proxy card and return it promptly in the envelope provided. If you return your signed proxy card to us before the special meeting, we will vote your shares as you instruct. If you are a beneficial owner of shares registered in the name of your broker, bank or other agent, you should have received a Notice containing voting instructions from that organization rather than from us. Simply follow the voting instructions in the Notice to ensure that your vote is counted.
To determine how you may revoke or change your vote submitted by the telephone, Internet or mail method described above, see the section entitled “Can I change my vote after submitting my proxy?
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We are holding the special meeting online and providing Internet voting to provide expanded access and to allow you to vote your shares online, with procedures designed to ensure the authenticity and correctness of your voting instructions. However, please be aware that you must bear any costs associated with your Internet access, such as usage charges from Internet access providers and telephone companies.
Stockholder of Record: Shares Registered in Your Name
If, as of the close of business on October 23, 2020, the record date for the special meeting, your shares were registered directly in your name with MobileIron’s transfer agent, American Stock Transfer & Trust Company, LLC, then you are a stockholder of record. As a stockholder of record, you may vote at the meeting or vote by proxy. Whether or not you plan to attend the meeting, we urge you to fill out and return the enclosed proxy card or vote through one of the other methods described above to ensure your vote is counted.
Beneficial Owner: Shares Registered in the Name of a Broker or Bank
If, as of the close of business on October 23, 2020, the record date for the special meeting, your shares were held, not in your name, but rather in an account at a brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in “street name” and the proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record for purposes of voting at the special meeting. As a beneficial owner, you have the right to direct your broker or other agent regarding how to vote the shares in your account. You are also invited to attend the special meeting. However, since you are not the stockholder of record, you may not vote your shares at the meeting unless you request and obtain a valid proxy from your broker or other agent.
What if I return a proxy card or otherwise vote but do not make specific choices?
If you return a signed and dated proxy card or otherwise vote without marking voting selections, your shares will be voted, as applicable, “FOR” the merger proposal (Proposal 1), “FOR” the merger-related compensation proposal (Proposal 2) and “FOR” the adjournment proposal (Proposal 3). If any other matter is properly presented at the meeting, your proxyholder (one of the individuals named on your proxy card) will vote your shares using his or her best judgment.
If you are a beneficial owner of our common stock and you do not provide instructions to your broker on how to vote your shares (i.e. a “broker non-vote”), your broker may not vote your shares with respect to any of the three proposals. If you fail to instruct your broker how to vote on merger proposal, it will have the effect of a vote “AGAINST” merger proposal.
Can I change my vote after submitting my proxy?
Stockholder of Record: Shares Registered in Your Name
Yes. You can revoke your proxy at any time before the final vote at the meeting. If you are the record holder of your shares, you may revoke your proxy in any one of the following ways:
You may submit another properly completed proxy card with a later date.
You may grant a subsequent proxy by telephone or through the Internet.
You may send a timely written notice that you are revoking your proxy to MobileIron’s Secretary at 490 East Middlefield Road, Mountain View, CA 94043.
You may attend the special meeting and vote online. Simply attending the meeting will not, by itself, revoke your proxy.
Your most current proxy card or telephone or Internet proxy is the one that is counted.
Beneficial Owner: Shares Registered in the Name of Broker or Bank
If your shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank.
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What are “broker non-votes”?
As discussed above, when a beneficial owner of shares held in “street name” does not give instructions to the broker or nominee holding the shares as to how to vote on matters deemed to be “non-routine,” the broker or nominee cannot vote the shares with respect to such matters. These unvoted shares are considered “broker non-votes” with respect to such matters. The proposals to be considered and voted upon at the special meeting are regarded as non-routine matters, and your broker or other nominee may not vote on these proposals without instructions from you.
What is the quorum requirement?
A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if stockholders holding at least a majority of the outstanding shares entitled to vote are present online at the meeting, by remote communication, if applicable, or represented by proxy. As of the close of business on the record date, there were 118,584,315 shares outstanding and entitled to vote. Thus, the holders of 59,292,158 shares must be present online during the meeting or represented by proxy at the meeting to have a quorum.
Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee), if you vote online at the meeting or you attend the special meeting but abstain from voting. Broker non-votes will not be counted toward the quorum requirement. If there is no quorum, the meeting’s chairperson or holders of a majority of shares represented at the meeting may adjourn the meeting to another date.
Why is my vote important?
If you do not submit a proxy or voting instructions or vote in person at the special meeting, it will be more difficult for us to obtain the necessary quorum to hold the special meeting. In addition, because Proposal 1 must be approved by the affirmative vote of stockholders holding at least a majority of the outstanding shares entitled to vote on the proposal as of the close of business on the record date for the special meeting, your failure to submit a proxy or voting instructions or to vote in person at the special meeting will have the same effect as a vote “AGAINST” Proposal 1: Proposal to Adopt the Merger Agreement.
What happens if I sell my shares before the special meeting?
If you held your shares as of the close of business on the record date but transfer them prior to the effective time of the merger, you will retain your right to vote at the special meeting, but not the right to receive the merger consideration for your shares of MobileIron common stock. The right to receive such consideration will pass to the person who owns the shares you previously owned when the merger becomes effective.
What does it mean if I receive more than one set of proxy materials?
If you received more than one set of proxy materials, it likely means that you hold shares of MobileIron common stock in more than one account. For example, you may own your shares of MobileIron common stock in various forms, including jointly with your spouse, as trustee of a trust or as custodian for a minor. To ensure that all of your shares of MobileIron common stock are voted, please provide a proxy or voting instructions for each account for which you received proxy materials.
Is the merger expected to be taxable to me?
The receipt of cash in exchange for shares of MobileIron common stock pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. Accordingly, a “U.S. Holder” (as defined in “— Material U.S. Federal Income Tax Consequences”) will recognize taxable gain or loss in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. Holder’s adjusted tax basis in its shares of common stock. The exchange of shares of common stock for the merger consideration pursuant to the merger generally will not result in tax to a Non-U.S. Holder (as defined in “— Material U.S. Federal Income Tax Consequences”) unless such Non-U.S. Holder has certain connections with the United States.
You should consult your own tax advisor regarding the particular tax consequences to you of the exchange of shares of MobileIron common stock for cash pursuant to the merger in light of your particular circumstances (including the application and effect of any state, local or foreign income and other tax laws). For more information, see the section of this proxy statement entitled “— Material U.S. Federal Income Tax Consequences” beginning on page 56.
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Am I entitled to exercise dissenters’ or appraisal rights instead of receiving the merger consideration for my shares of MobileIron common stock?
Yes. Under the General Corporation Law of the State of Delaware (the “DGCL”), our stockholders who do not vote for the merger proposal, or consent thereto in writing, will have the right to seek appraisal of the fair value of their shares as determined by the Delaware Court of Chancery, but only if they fully comply with all of the applicable requirements of the DGCL, which are summarized in this proxy statement. Any appraisal amount determined by the court could be more than, the same as, or less than the value of the merger consideration. Any stockholder intending to exercise appraisal rights must, among other things, submit a written demand for appraisal to the Company before the vote on the merger proposal and must not vote or otherwise submit a proxy in favor of the merger proposal. Failure to follow the procedures specified under the DGCL exactly will result in the loss of appraisal rights. Because of the complexity of the DGCL relating to appraisal rights, if you are considering exercising your appraisal rights, we encourage you to seek the advice of your own legal counsel. The discussion of appraisal rights contained in this proxy statement is not a full summary of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262 of the DGCL that is attached as Annex B to this proxy statement. For additional information, see “Proposal 1: Proposal to Adopt the Merger Agreement—Appraisal Rights” beginning on page 58.
How can I find out the results of the voting at the Special Meeting?
Preliminary voting results will be announced at the special meeting. In addition, final voting results will be published in a Current Report on Form 8-K that we expect to file within four business days after the special meeting. If final voting results are not available to us in time to file a Current Report on Form 8-K within four business days after the meeting, we intend to file a Current Report on Form 8-K to publish preliminary results and, within four business days after the final results are known to us, file an additional Current Report on Form 8-K to publish the final results.
Where can I find more information about the Company?
We file certain information with the SEC. You may read this information at the website the SEC maintains at www.sec.gov and on our website at www.mobileiron.com. Information contained on, or accessible from, our website is not part of, or incorporated in, this proxy statement. You can also request copies of these documents from us. See “Where You Can Find More Information” beginning on page 95.
Who will solicit and pay the cost of soliciting proxies?
We will bear the cost of soliciting proxies for the special meeting. Our Board is soliciting your proxy on our behalf. Our officers, directors and employees may solicit proxies by telephone and facsimile, by mail, on the Internet or in person. They will not be paid any additional amounts for soliciting proxies. In addition, we have retained D.F. King & Co., Inc. to assist us in the solicitation of proxies and will pay approximately $15,000.00 as the base fee, plus reimbursement of out-of-pocket expenses, to D.F. King & Co., Inc. for its services. We will also request that banking institutions, brokerage firms, custodians, trustees, nominees, fiduciaries and other like parties forward the solicitation materials to the beneficial owners of shares of our common stock held of record by such person, and we will, upon request of such record holders, reimburse forwarding charges and out-of-pocket expenses.
What do I need to do now?
We urge you to read carefully this proxy statement, including its annexes and the documents we refer to in this proxy statement, and then mail your completed, dated and signed proxy card or voting instruction form in the enclosed prepaid return envelope as soon as possible, or submit your proxy or voting instruction via the Internet or by phone in accordance with the instructions included with this proxy statement and the enclosed proxy card or voting instruction form, so that your shares can be voted at the special meeting.
Who can help answer my other questions?
If you have more questions about the special meeting or the merger, you should contact our proxy solicitation agent, D.F. King & Co., Inc., by calling toll-free at (877) 732-3621 (stockholders) or (212) 269-5550 (banks and brokers). If your broker holds your shares, you should also call your broker for additional information.
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FORWARD-LOOKING STATEMENTS
This proxy statement, the documents to which we refer you in this proxy statement, including all documents incorporated by reference in this proxy statement, and information included in oral statements or other written statements made or to be made by us or on our behalf contain “forward-looking statements” that do not directly or exclusively relate to historical facts, including, without limitation, statements relating to the completion of the merger. You can typically identify forward-looking statements by the use of forward-looking words, such as “may,” “should,” “could,” “project,” “believe,” “anticipate,” “expect,” “estimate,” “continue,” “potential,” “plan,” “forecast” and other words of similar import. MobileIron stockholders are cautioned that any forward-looking statements are not guarantees of future performance and may involve significant risks and uncertainties, and that actual results may vary materially from those in the forward-looking statements. These risks and uncertainties include, but are not limited to, the risks detailed in our filings with the SEC, including in our most recent filings on Forms 10-K and 10-Q, factors and matters described or incorporated by reference in this proxy statement, and the following factors:
the inability to complete the merger due to the failure of MobileIron stockholders to adopt the merger agreement or the failure to satisfy the other conditions to the completion of the merger, including that a governmental entity may prohibit, delay or refuse to grant a necessary regulatory approval;
the risk that the merger agreement may be terminated in circumstances that require us to pay a termination fee;
the outcome of any legal proceedings that may be instituted against us and others related to the merger agreement;
the fact that receipt of the all-cash merger consideration will be taxable to MobileIron stockholders that are treated as U.S. Holders (as defined under the section of this proxy statement captioned “The Merger—Material U.S. Federal Income Tax Consequences”) for U.S. federal income tax purposes;
the fact that, if the merger is completed, MobileIron stockholders will forgo the opportunity to realize the potential long-term value of the successful execution of MobileIron’s current strategy as an independent company;
though no such transaction existed, the possibility that, if MobileIron did not enter into the merger agreement, it potentially could have, at a later date, attempted to engage in other, unspecified transactions, including restructuring efforts, special dividends or the sale of some or all of MobileIron’s assets that may have produced a higher aggregate value than that available to MobileIron stockholders in the merger;
the fact that under the terms of the merger agreement, MobileIron is restrained at certain times from soliciting other acquisition proposals during the pendency of the merger;
the effect of the merger or the announcement or pendency of the merger on retaining or recruiting employees, or business relationships, customers, operating results and business generally, including risks related to the diversion of the attention of MobileIron management or employees during the pendency of the merger;
the amount of the costs, fees, expenses and charges related to the merger agreement or the merger;
the risk that the proposed merger will not be consummated in a timely manner, exceeding the expected costs of the merger; and
the risk that our stock price may decline significantly if the merger is not completed.
Consequently, all of the forward-looking statements that we make in this proxy statement are qualified by the information contained or incorporated by reference in this proxy statement, including: (1) the information contained under this caption; and (2) information in our most recent filings on Forms 10-K and 10-Q, including the information contained under the caption “Risk Factors,” and information in our consolidated financial statements and notes thereto. No assurance can be given that these are all of the factors that could cause actual results to vary materially from the forward-looking statements. All subsequent written and oral forward-looking
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statements concerning the merger or other matters attributable to MobileIron or any other person acting on its behalf are expressly qualified in their entirety by the cautionary statements referenced above. The forward-looking statements contained in this proxy statement speak only as of the date of this proxy statement.
Except as required by applicable law, we undertake no obligation to publicly update forward-looking statements, whether as a result of new information, future events or otherwise. MobileIron stockholders are advised to consult any future disclosures that we make on related subjects as may be detailed in our other filings made from time to time with the SEC.
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THE PARTIES TO THE MERGER
MobileIron, Inc.
MobileIron, Inc.
490 East Middlefield Road
Mountain View, California 94043
MobileIron is an established player in the zero trust security solutions market, and a leader in mobile-centric, zero trust solutions that go beyond traditional approaches to security by utilizing a more comprehensive set of attributes to grant secure access. MobileIron products and services validate the device, establish user context, check application authorization, verify the network, and detect and mitigate threats before granting secure access to a device or user. We were incorporated in Delaware in July 2007 and are headquartered in Mountain View, California, with additional sales and support presence in North America, Europe, the Middle East, Asia and Australia and employees in India primarily focused on research and development. Our principal executive offices are located at 490 East Middlefield Road, Mountain View, CA 94043, and our telephone number is (650) 919-8100. Our website is www.mobileiron.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this proxy statement or any other report or document we file with or furnish to the SEC. Shares of our common stock are listed on The Nasdaq Global Select Market under the symbol “MOBL”. For additional information about us and our business, please refer to “Where You Can Find More Information” on page 95 of this proxy statement.
Ivanti, Inc.
Ivanti, Inc.
10377 South Jordan Gateway
Suite 110
South Jordan, Utah 84095
Ivanti automates IT and Security Operations to discover, manage, secure and service from cloud to edge. From PCs to mobile devices, VDI, and the data center, Ivanti discovers IT assets on-premises, in cloud, and at the edge, improves IT service delivery, and reduces risk with insights and automation. Ivanti also helps organizations leverage modern technology in the warehouse and across the supply chain to improve delivery without modifying backend systems. Ivanti is a privately held company headquartered in Salt Lake City, Utah and has offices in multiple locations throughout the world.
Oahu Merger Sub, Inc.
Oahu Merger Sub, Inc.
10377 South Jordan Gateway
Suite 110
South Jordan, Utah 84095
Merger Sub is a Delaware corporation and wholly owned subsidiary of Ivanti formed solely for the purposes of entering into the merger agreement and engaging in the transactions contemplated by the merger agreement. Merger sub has not engaged in any business to date except for activities incidental to its incorporation and activities undertaken in furtherance of the merger. Upon completion of the merger, Merger Sub will merge with and into MobileIron and will cease to exist.
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THE SPECIAL MEETING
Date, Time and Place
We will hold the special meeting by means of a live interactive webcast on the Internet at on November 24, 2020, at 10:00 a.m., Pacific Time, at www.virtualshareholdermeeting.com/MOBL2020SM.
The Proposals
At the special meeting, you will be asked to consider and vote on:
a proposal to adopt the merger agreement (the “merger proposal”);
a proposal to approve, on a non-binding, advisory basis, the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger (the “merger-related compensation proposal”); and
a proposal to approve any adjournment of the special meeting to a later date or time, if necessary or appropriate, including for the purpose of soliciting additional proxies if there are not sufficient votes at the time of the special meeting to adopt the merger agreement (the “adjournment proposal”).
We do not expect that any matters other than the proposals set forth above will be brought before the special meeting, and only matters specified in the notice of the meeting may be acted upon at the special meeting.
Recommendations of Our Board
After careful consideration, our Board has unanimously determined that the merger agreement, the merger and the other transactions contemplated by the merger agreement are fair to and in the best interests of MobileIron and its stockholders and approved and declared advisable the merger agreement, the merger and the other transactions contemplated by the merger agreement. Accordingly, our Board recommends that you vote “FOR” the merger proposal. In addition, our Board recommends that you vote “FOR” the merger-related compensation proposal and that you vote “FOR” the adjournment proposal.
For more information concerning the recommendation of our Board with respect to the merger and the merger agreement, see “Proposal 1: Proposal to Adopt the Merger Agreement—Recommendations of Our Board and Reasons for the Merger” beginning on page 37.
Record Date, Notice and Quorum
All holders of record of our common stock as of the close of business on October 23, 2020, the record date for the special meeting, are entitled to receive notice of and attend the special meeting or any postponement or adjournment of the special meeting. Each common stockholder will be entitled to cast one vote on each matter presented at the special meeting for each share of common stock that such holder owned as of the close of business on the record date. As of the close of business on the record date, there were 118,584,315 shares of common stock outstanding and entitled to vote at the special meeting.
A quorum will be present if stockholders holding at least a majority of the outstanding shares entitled to vote are present online at the meeting, by remote communication, if applicable, or represented by proxy. A quorum is necessary to transact business at the special meeting. Your shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee), if you vote online at the meeting or you attend the special meeting but abstain from voting. Broker non-votes will not be counted toward the quorum requirement.
Required Vote
Completion of the merger requires approval of the merger proposal by the affirmative vote of stockholders holding at least a majority of the outstanding shares of our common stock entitled to vote on the proposal as of the close of business on the record date for the special meeting. Because the required vote for this proposal is based on the number of votes our common stockholders are entitled to cast rather than on the number of votes actually cast, if you fail to authorize a proxy or vote online at the meeting (including by abstaining), or fail to instruct your broker on how to vote, such failure will have the same effect as votes cast “AGAINST” the merger proposal.
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In addition, the approval of the merger-related compensation proposal and the approval of the adjournment proposal each requires the affirmative vote of a majority of the votes cast on the proposal. In addition, our bylaws permit the chairman of the special meeting, acting in his or her own discretion and without any action by our stockholders, to adjourn the special meeting to a later date and time and at a place announced at the special meeting. Approvals of the merger-related compensation proposal and the adjournment proposal are not conditions to completion of the merger.
Abstentions and Broker Non-Votes
Abstentions will be treated as present at the special meeting for purposes of determining the presence or absence of a quorum. Abstentions will have the same effect as votes cast “AGAINST” the merger proposal but will have no effect on the other proposals. Broker non-votes will not be treated as present at the special meeting for purposes of determining the presence or absence of a quorum, so failure to provide instructions to your broker or other nominee on how to vote will result in your shares not being counted as present at the meeting. A broker non-vote occurs when a nominee, such as a broker or bank, holding shares for a beneficial owner does not vote on a particular proposal because the nominee does not have discretionary authority to vote with respect to that proposal and has not received instructions with respect to that proposal from the beneficial owner. In the event that a broker, bank, custodian, nominee or other record holder of our common stock indicates on a proxy that it does not have discretionary authority to vote certain shares on a particular proposal, then those shares will be treated as broker non-votes with respect to that proposal. The proposals to be considered and voted upon at the special meeting are regarded as non-routine matters, and your broker or other nominee may not vote on these proposals without instructions from you.
Votes by our Directors and Executive Officers
As of the close of business on the record date, our directors and executive officers owned and are entitled to vote an aggregate of approximately 1,613,046 shares of our common stock, entitling them to exercise approximately 1.4% of the voting power of our common stock entitled to vote at the special meeting. Our directors and executive officers have informed us that they intend to vote the shares of our common stock that they own in favor of the merger proposal, the merger-related compensation proposal and the adjournment proposal.
Proxies; Revocation
Any of our common stockholders of record entitled to vote may authorize a proxy by returning the enclosed proxy card, authorizing your proxy or voting instructions by telephone or through the Internet, or by voting online during the special meeting. Please note, however, that if your shares are held of record by a broker, bank or other nominee and you wish to vote at the meeting, you must obtain a proxy issued in your name from that record holder. If the shares of our common stock that you own are held in “street name” by your broker, you should instruct your broker on how to vote your shares using the instructions provided by your broker.
Any proxy given by our common stockholders may be revoked at any time prior to its exercise by your delivery of a properly executed, later-dated proxy card relating to the same shares of our common stock, by authorizing your proxy by telephone or through the Internet at a later date than your previously authorized proxy, by telephone or through the Internet in accordance with the instructions on the proxy card at any time before your proxy is exercised at the special meeting stating that the proxy is revoked, provided such written notice is received before your proxy is exercised at the special meeting, by your filing a written revocation of your proxy bearing a date later than the date of the proxy with our Secretary or by voting online during the special meeting (your attendance at the special meeting virtually will not, by itself, revoke your proxy, you must vote virtually at the special meeting to revoke your proxy). If you are a stockholder of record, your proxy must be received by telephone or the Internet by 11:59 p.m., Eastern Time, on November 23, 2020 in order for your shares to be voted at the special meeting.
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Questions and Additional Information
If you have any questions concerning the merger, the special meeting or this proxy statement, would like additional copies of this proxy statement or need help submitting your proxy or voting your shares of MobileIron common stock, please contact our proxy solicitor at:
D.F. King & Co., Inc.
48 Wall Street - 22nd Floor
New York, New York 10005
Stockholders call toll-free: (877) 732-3621
Banks and brokers call collect: (212) 269-5550
Email: mobl@dfking.com
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PROPOSAL 1: PROPOSAL TO ADOPT THE MERGER AGREEMENT
We are asking the holders of shares of MobileIron common stock to adopt the merger agreement. For detailed information regarding this proposal, see the information about the merger agreement and the merger throughout this proxy statement, including the information set forth in this section and the section entitled “The Merger Agreement” A copy of the merger agreement is attached as Annex A to this proxy statement.
The adoption of the merger agreement must be approved by the affirmative vote of stockholders holding at least a majority of the outstanding shares entitled to vote on the proposal as of the close of business on the record date for the special meeting. Your abstention or the failure to vote your shares will have the same effect as a vote against the proposal to approve the merger.
THE MOBILEIRON BOARD RECOMMENDS A VOTE “FOR” PROPOSAL 1
The following is a description of certain material aspects of the merger, including the merger agreement. While we believe that the following description covers the material terms of the merger, the description may not contain all of the information that may be important to you. We urge you to read carefully this entire proxy statement, including the merger agreement attached to this proxy statement as Annex A, for a more complete understanding of the merger.
Overview
Under the terms of the merger agreement, among other things, MobileIron will be acquired by Ivanti through Ivanti’s ownership of Merger Sub. To accomplish this, pursuant to the merger agreement, at the effective time of the merger (i) Merger Sub will merge with and into the Company, (ii) the separate existence of Merger Sub will cease and (iii) MobileIron will continue as the surviving corporation in the merger and as a wholly owned subsidiary of Ivanti.
Background of the Merger
The following chronology summarizes the key meetings and events that led to the signing of the merger agreement. The following chronology does not purport to catalogue every conversation among our Board, members of our management, our advisors and other parties.
Our Board, together with members of our management, regularly assesses the Company’s performance and competitive position and assesses opportunities to enhance stockholder value. As part of that process, our Board, together with Company management and with the assistance of its advisors, has regularly reviewed strategic opportunities that might be available to the Company, including, among other strategic alternatives, possible business combinations involving the Company, strategic commercial relationships, acquisitions by the Company and acquisitions of the Company. The Company also engages regularly in discussions with other parties regarding potential commercial and other business arrangements.
Prior Strategic Initiatives and Business Arrangements
In June 2016, our Board commenced a review of the Company’s strategic alternatives. As part of that review, our Board conducted a process to evaluate market interest in acquiring the Company (the “2016 Review Process”). Our Board engaged a financial advisor to assist it in that process. During the 2016 Review Process, our Board, through its financial advisor, contacted approximately 36 potential acquirors, of which 25 were strategic bidders (including Ivanti) and 11 were private equity sponsors. Over the course of the 2016 Review Process, the Company’s management team and financial advisor met with 14 potential acquirors, four of whom in November 2016 submitted non-binding proposals to acquire the Company. From November 2016 until March 2017, our Board and Company management, with the assistance of the financial advisor and outside legal counsel, engaged in discussions with the four respective bidders regarding their non-binding proposals and ongoing due diligence. The process concluded in late March 2017. No firm offers were received during the 2016 Review Process, and no price proposed in the 2016 Review Process exceeded $5.00 per share.
During 2018 and the first and second quarters of 2019, the Company from time-to-time had discussions regarding a potential acquisition of the Company with several potential buyers, many of whom had participated in the 2016 Review Process. These discussions ended in mid-2019, based on the lack of any actionable proposals from the potential buyers.
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As part of the Company’s regular discussions of potential business arrangements with third parties, Mr. Biddiscombe, on January 31, 2020, e-mailed Jim Schaper, the CEO of Ivanti, to congratulate him on his recent appointment as CEO of Ivanti. On February 23, 2020, Ivanti and the Company entered into a mutual nondisclosure agreement to facilitate discussions of potential commercial and product transactions. Subsequently, Mr. Biddiscombe and Mr. Schaper met on February 25, 2020 and from time to time thereafter continued to discuss potential business development opportunities between the companies.
In April 2020, the Company acquired incapptic Connect, a recognized leader in mobile app release automation software, which added a series of products to the Company’s portfolio enabling the Company’s customers to efficiently develop and distribute customized mobile apps at scale rapidly.
Management Changes
Following the 2016 Review Process, and through the 2018-2019 period discussed above, our Board replaced a significant portion of the Company’s management team with new executives, including the appointment of Mr. Biddiscombe as CEO of the Company and a member of our Board, in October 2017.
Stockholder Engagement and Acquisition Interest
The Company regularly communicates with its stockholders. These communications have included communications with Altai Capital Management, L.P. (“Altai”), who, in a November 12, 2019 letter to our Board stated that it urged our Board to conduct a review of strategic alternatives through a committee led by new directors, and that it could take other actions to increase shareholder value, including nominating directors at the Company’s 2020 annual stockholder meeting. Members of the Company’s management discussed with Altai the positions reflected in its letter and discussed with our Board Altai’s positions and their communications with Altai. On December 17, 2019, the Company signed a non-disclosure agreement with Altai to facilitate further discussions with Altai. The non-disclosure agreement included a customary standstill agreement expiring no later than the end of February 28, 2020.
On November 18, 2019, another stockholder of the Company sent a letter to the Company suggesting various strategic and operational steps. Members of the Company’s management discussed the letter and potential steps with our Board, and, in consultation with our Board, had several discussions with the stockholder. On March 13, 2020, the stockholder submitted to the Company a notice of nominees for election to our Board at the Company’s 2020 annual stockholder meeting, and subsequently discussed that notice with Company management, although the stockholder ultimately did not make any nominations at the Company’s 2020 annual stockholder meeting.
From December 17, 2019, through February 24, 2020, members of Company management met from time to time with representatives of a private equity sponsor (referred to as “Company A”) that had participated in discussions with the Company during 2018 and 2019, as described above, to discuss the potential interest of Company A in a transaction with the Company. However, no actionable proposal was received.
On December 19, 2019, our Board met, with Company management and a representative of Morrison & Foerster LLP, the Company’s outside legal counsel (“M&F”), also attending. Mr. Biddiscombe reviewed and discussed with the Board, among other things, potential corporate development initiatives and strategic options, including the recent discussions with Company A, and the possible retention of a new financial advisor.
In late January, 2020, Mr. Biddiscombe and Mr. Hill met with representatives of Barclays and, separately, another potential financial advisor to discuss engaging a new financial advisor.
At a meeting of our Board on January 30, 2020, which Company management and a representative of M&F attended, Mr. Biddiscombe reviewed and discussed with our Board the preliminary conversations between the Company and Barclays and, separately, between the Company and the other potential financial advisor regarding potentially engaging one of the two financial advisors in connection with a review of strategic alternatives, including a potential sale of, or business combination of, the Company, or a potential acquisition by the Company, and potential stockholder activism. Our Board authorized management to continue conversations with Barclays and the other potential financial advisor regarding a potential engagement. Our Board also determined to form an informal committee of our Board (the “Strategy Committee”) to assist it in discussing and reviewing potential strategic alternatives, subject to the decision-making authority of our Board. The initial members of the Strategy Committee were Tae Hea Nahm, Anjali Joshi and James Tolonen. The Strategy Committee generally invited other members of our Board to attend its meetings.
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On February 10, 2020, each potential financial advisor met separately with our Board to discuss its credentials and our Board reviewed and discussed the qualifications of the respective potential financial advisors. On March 9, 2020, the Company signed an engagement letter with Barclays to engage Barclays as the Company’s financial advisor in connection with a potential sale of the Company, the potential acquisition by the Company of a specified target and potential shareholder activism.
On April 14, 2020, the Company entered into a Cooperation Agreement with Altai, pursuant to which, among other things, Mr. Bajaj, the President and Chief Investment Officer of Altai, joined our Board and was appointed to the Strategy Committee. The Company issued a press release announcing the Cooperation Agreement on April 15, 2020.
On April 21, 2020, our Board met, with Company management and a representative of M&F also attending. Representatives of Barclays also attended a portion of the meeting. Our Board discussed the Company’s recent performance and potential scenario planning, including in light of the COVID-19 pandemic. Our Board reviewed, with the assistance of representatives from its legal and financial advisors, the status of the M&A market, including the leveraged finance market, certain strategic parties and financial sponsors that potentially could be interested in acquiring the Company, and potential steps that could be taken with respect to exploring potential strategic opportunities.
On May 12, 2020, the Strategy Committee met, with Company management and representatives of Barclays and M&F also attending. The Strategy Committee discussed, with the assistance of representatives from its legal and financial advisors, the then current status of the M&A market and certain strategic parties and financial sponsors that the Company might approach to assess their interest in acquiring the Company.
On June 23, 2020, Mr. Schaper contacted Mr. Biddiscombe to introduce him to a board representative of Ivanti and to discuss a possible strategic transaction between Ivanti and the Company. Mr. Biddiscombe told Mr. Schaper that he would discuss Ivanti’s interest with members of our Board and respond, and that a non-disclosure agreement would be needed in connection with further discussions.
On July 6, 2020, the Company entered into a confidential disclosure agreement with Clearlake Capital Group, L.P., Ivanti’s principal stakeholder, in connection with discussions regarding a potential strategic transaction between the Company and Ivanti (the “Non-disclosure agreement”). Subsequently, certain of the discussions by the Company with Ivanti regarding a potential strategic transaction as described in this Background included representatives of Ivanti’s principal stakeholder. The Non-disclosure agreement, and the non-disclosure agreements with all other potential bidders entered into thereafter that contained a standstill provision (a provision prohibiting the bidder from, among other things, acquiring or offering to acquire shares of the Company or soliciting proxies from stockholders of the Company), included customary terms for the standstill and provisions automatically terminating the standstill upon the entry by the Company into a definitive agreement for a transaction involving the acquisition by a third party of, or the commencement (as defined in Rule 14d-2 under the Exchange Act) by a third party of a tender offer to acquire, more than 50% of the Company’s outstanding shares.
On July 7, 2020, the Strategy Committee met, with Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe reviewed the discussions to date with Ivanti. Mr. Biddiscombe and the members of the Strategic Committee discussed contacting other potential M&A partners. Mr. Biddiscombe also discussed potential next steps and other potential bidders with representatives of Barclays.
On July 8, 2020, Mr. Biddiscombe, Mr. Hill and Brian Foster, the Company’s senior vice president of product management, together with representatives of Barclays, had a video conference with Mr. Schaper and Prashant Mehrotra and Dilshat Erkin, members of the board of directors of Ivanti’s parent entity as well as representatives of Ivanti’s principal stakeholder. At the meeting, the attendees discussed, with the assistance of representatives from their financial advisors, the status and operations of the Company and the potential for an acquisition of the Company by Ivanti.
Also on July 8, our Board met, with Company management and a representative of M&F in attendance. Mr. Biddiscombe discussed with our Board the discussions to date with Ivanti and steps being taken in connection with the review of other potential acquirors.
On July 16, 2020, the Strategy Committee met, with the other members of our Board, Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe reviewed the status of discussions
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with Ivanti. The Strategy Committee discussed, with the assistance of representatives of Barclays, certain other potential strategic and financial buyers, a potential timeline for an M&A process and an overview of the M&A, equity and debt markets. The Strategy Committee and other Board members directed representatives of Barclays to contact certain other potential buyers they had discussed during the meeting regarding a potential transaction with the Company.
At the direction of the Board, over the next several weeks, representatives of Barclays or members of Company management contacted an additional 10 potential strategic buyers and 8 potential financial buyers to see if they would be interested in a transaction with the Company, many of whom had participated in the 2016 Review Process and the strategic initiatives that the Company undertook during the 2018-2019 period as described above.
On July 23, 2020, the Strategy Committee met, with the other members of our Board, Company management and representatives of Barclays and of M&F also attending. The Board discussed, with the assistance of its financial and legal advisors, the status of the discussions with Ivanti and the status of its contacts with other potential buyers. Representatives of Barclays also reviewed other potential strategic and financial buyers. The Strategy Committee and other Board members directed representatives of Barclays to continue contacting certain potential strategic and financial buyers they had discussed during the meeting to assess their interest in a potential transaction with the Company.
Following the July 23, 2020 Strategy Committee meeting, representatives of Barclays held calls with other potential strategic buyers regarding their interest in a potential transaction with the Company.
Beginning on July 27, 2020, the Company provided Ivanti with access to virtual data room that the Company had prepared in response to a due diligence request.
On July 30, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of M&F reviewed with our Board its fiduciary duties in connection with its consideration of a potential transaction. Our Board, among other things, instructed Company management that they should not engage in separate conversations with potential bidders without prior Board approval, and that Company management should not discuss compensation and individual arrangements for Company management until after all material terms of a transaction had been determined. Company management also confirmed to our Board that they had not discussed individual compensation or arrangements with potential bidders. Representatives of Barclays updated our Board regarding recent discussions with certain potential strategic and financial buyers regarding their interest in acquiring the Company.
On August 1, 2020, Mr. Biddiscombe received a call from the CEO of a privately owned company (“Company B”) with whom the Company had previously engaged in discussions regarding various potential business development opportunities. Company B’s CEO suggested that Mr. Biddiscombe speak with one of Company B’s directors who was also a director at the private equity firm whose affiliate owned Company B. On August 3, 2020, Mr. Biddiscombe spoke with the Company B director, who indicated that there was some potential for a transaction involving the acquisition by another private equity firm of both Company B and the Company.
On August 6, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe and the representatives of Barclays reported the status of discussions with Ivanti, and the Board, with assistance from representatives of Barclays, reviewed the status of discussions with certain other potential strategic and financial buyers, including Company B, and discussed certain other potential strategic and financial buyers.
On August 11, 2020, the Company entered into an amendment to a prior confidentiality agreement with Company B to facilitate further discussions with respect to an acquisition of the Company.
On August 13, 2020, Mr. Biddiscombe from the Company had a phone call with representatives of a private equity firm (referred to as “Company C”), Company B and the private equity firm whose affiliate owned Company B to discuss a potential transaction. The representatives of Company C informed the Company that Company C was contemplating a potential acquisition of each of Company B and the Company. On August 16, 2020, the Company entered into a non-disclosure agreement with Company C to facilitate discussions regarding a potential acquisition. The non-disclosure agreement with Company C allowed Company C to disclose confidential information regarding the Company to Company B, with the disclosure and use of such information subject to the non-disclosure agreement that Company B had signed with the Company.
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Also on August 13, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of Barclays discussed with our Board the contacts with certain potential buyers, including the status of management meetings and diligence. Our Board also discussed certain other potential buyers and ongoing communications with such other potential buyers.
On August 15, 2020, the Company entered into a joinder (the “Joinder”) to the Non-disclosure agreement to include another private equity sponsor that is a financial backer of Invanti as party thereto.
On August 17, 2020, Ivanti submitted a non-binding proposal for an all-cash acquisition of the Company by Ivanti with a proposed purchase price of $6.15 per share, as well as a draft of a merger agreement. The Ivanti proposal submitted on August 17, 2020, and all other proposals made by Ivanti as described in this Background, were made by Ivanti with the support of Ivanti’s principal stakeholder and the other party that had entered into the Joinder. The Ivanti proposal was predicated on obtaining sufficient financing commitments, with the intent to finance the acquisition with debt financing as well as with potential equity capital from the guarantors, and was subject to the satisfactory completion of confirmatory legal and accounting diligence.
Also on August 17, 2020, our Board met, with Company management and a representative of M&F also attending. Our Board discussed and approved certain financial projections for the Company. The projections were prepared by management of the Company and reflected, among other things, management’s view of the expected impact of the Company’s recent elimination of the perpetual licensing model and of the potential impact of the COVID-19 pandemic.
On August 18, 2020, Company management, together with representatives of Barclays, met with representatives of Company C to discuss a potential acquisition of the Company.
On August 19, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Our Board, with the assistance of representatives of Barclays and M&F, discussed the proposal received from Ivanti on August 17, 2020.Representatives of Barclays reviewed an update on the potential sale process, preliminary financial analysis related to the potential sale transaction and additional potential bidders. Following discussion, our Board determined that the proposal of $6.15 per share was inadequate. Company management and representatives of Barclays also gave updates with respect to the recent discussions with representatives of Company C and Company B and other potential bidders. The Board also discussed, with the assistance of representatives of Barclays, that certain parties had determined not to move forward with a potential transaction and directed Barclays to contact certain additional other parties. Our Board also directed the representatives of Barclays to inform Ivanti that its proposed price was inadequate, to continue discussions with other potential buyers that Barclays had contacted and to contact certain additional potential buyers.
On August 20, 2020, after the close of trading, Bloomberg published an article citing sources who said that the Company was exploring strategic options including a potential sale. On August 21, 2020, the closing price of the Company’s common stock on the Nasdaq Global Select Market rose to $6.72 per share, from $6.00 on August 21, 2020, $5.97 on August 19, 2020, $5.86 on August 18, 2020, and $5.75 on August 17, 2020.
Also on August 20, 2020, Company C informed Mr. Biddiscombe that Company C wished to continue the discussions regarding a potential transaction with the Company.
On August 21, 2020, the Company entered into a non-disclosure agreement with a strategic company (referred to as “Company D”), who had evaluated the Company during the 2016 Review Process, to facilitate discussions regarding a potential acquisition.
On August 22, 2020, the Company entered into a non-disclosure agreement with Company A to facilitate discussions regarding a potential acquisition.
On August 24, 2020, a financial sponsor contacted a representative of Barclays and indicated that it might be interested in an acquisition of the Company. Representatives of Barclays discussed the financial sponsor’s contact with Company management, but the financial sponsor subsequently did not pursue an acquisition of the Company. Also on August 24, 2020, the Company entered into non-disclosure agreements with each of a private equity firm (referred to as “Company E”), who had evaluated the Company during the 2016 Review Process, and a strategic company (referred to as “Company F”) to facilitate discussions with each of them respectively regarding a potential acquisition.
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On August 26, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of Barclays discussed with our Board the status of discussions with potential buyers and reviewed its preliminary financial analysis of the Company. Representatives of Barclays also reviewed information as to the historical relationship of Barclays with the Company, Ivanti (including Ivanti’s principal stakeholder and the other party that had entered into the Joinder) and certain other potential bidders.
On August 27, 2020, Ivanti submitted a revised non-binding proposal for an all-cash acquisition of the Company by Ivanti with a proposed purchase price of $6.25 per share. The proposal was predicated on obtaining sufficient financing commitments and being permitted to commence accounting due diligence.
On August 28, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of Barclays reviewed with our Board the status of discussions with the potential buyers, including the revised proposal from Ivanti and Ivanti’s progress with respect to diligence and obtaining financing for its proposal. Our Board directed the representatives of Barclays to inform Ivanti that its proposed price should be greater than $7.00 and to continue to follow up with specified other potential buyers.
On August 31, 2020, Company management, together with representatives of Barclays, met with Company A, to discuss the status of the Company and the potential for a transaction with the Company.
On September 3, 2020, Company management, together with representatives of Barclays, met with Company E, to discuss the status of the Company and the potential for a transaction with the Company.
On September 3, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of Barclays reviewed with our Board the status of potential buyers, including that Company F had decided not to pursue a transaction with the Company. Our Board also discussed how to obtain proposals from potential buyers that had not yet provided proposals. Also on September 3, 2020, the Company entered into non-disclosure agreements with each of a strategic company (referred to as “Company G”), and a strategic portfolio company of a private equity firm (referred to as “Company H”), to facilitate respective discussions regarding a potential acquisition, and later on that day, at the direction of the Board, Company management, together with representatives of Barclays, met with Company H, to discuss the status of the Company and the potential for a transaction with the Company.
On September 4, 2020, Company management, together with representatives of Barclays, met with Company D, to discuss the status of the Company and the potential for a transaction with the Company.
On September 8, 2020, Company C submitted a non-binding proposal to acquire all of the outstanding equity of the Company for $7.25 per share in cash. Company C noted in such proposal that it believed that a combination of the Company and Company B would be compelling, but that its proposal was not contingent on a completion of any other acquisition by, or combination with, the Company, including a combination with Company B. Company C also noted that it planned to fund the acquisition with a combination of equity and debt financing. Company C’s proposal was subject to the completion of due diligence.
On September 9, 2020, Company management, together with representatives of Barclays, met with representatives of Company G, to discuss the status of the Company and the potential for a transaction with the Company. Also on September 9, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Representatives of Barclays reviewed with our Board Company C’s proposal and the status of other potential buyers, including the recent meeting with Company G and that each of Company D and Company H had informed representatives of Barclays that it had decided not to continue discussions with the Company. Representatives of Barclays also discussed with our Board the potential steps of the remaining potential buyers with respect to obtaining financing. Our Board directed the representatives of Barclays to continue to work with certain potential buyers.
On September 16, 2020, Ivanti submitted a revised non-binding proposal for an all-cash acquisition of the Company with a proposed purchase price of $6.50 per share. The proposal indicated that Ivanti had completed its diligence and expected to have executed financing commitments later in that week. Ivanti furnished drafts of debt financing documents with the revised proposal.
On September 17, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Our Board discussed the revised Ivanti offer. Representatives of Barclays reviewed with our Board the status of the remaining potential buyers, including that Company A had informed representatives of
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Barclays that it had decided not to continue discussions with the Company. Our Board discussed the status of the process with respect to the other potential buyers. Representatives of M&F reviewed with our Board the terms of the merger agreement submitted by Ivanti and a draft merger agreement that had been prepared by M&F at the direction of our Board for provision to bidders. Representatives of M&F discussed with our Board certain potential issues with the Ivanti proposal, including the remedies available to the Company for breach or other failure of Ivanti to consummate the transaction when required, including the triggers for and amount of a reverse termination fee that would be payable by Ivanti under certain circumstances, the treatment of unvested equity awards, limitations on the Company’s right to respond to, and potentially to accept, unsolicited alternative transactions, including the amount of any termination fee that would be payable by the Company in those circumstances, the extent of Ivanti’s regulatory commitments, and the terms of Ivanti’s financing. Our Board determined that the proposed price was inadequate and directed Company management and representatives of Barclays to continue to negotiate with Ivanti. Our Board also directed representatives of M&F to prepare and provide to Ivanti a revised draft of the merger agreement provided on behalf of Ivanti, consistent with the terms of the draft merger agreement prepared for other bidders, and to provide a draft merger agreement to Company C.
Following our Board’s meeting, pursuant to the directions of our Board, representatives of Barclays delivered a draft merger agreement to Company C, and on September 18, 2020, representatives of Barclays delivered to Sidley Austin LLP (“Sidley Austin”), legal counsel to Ivanti, a revised draft of the merger agreement prepared by M&F.
On September 19, 2020, Ivanti submitted a revised non-binding proposal for an all-cash acquisition of the Company at a proposed purchase price of $7.00 per share. Ivanti’s proposal indicated it had completed its due diligence process and was ready to proceed with finalizing the definitive agreements for the transaction as soon as possible. The revised proposal also stated that the proposal would be withdrawn if not accepted by the Company by 5:00 p.m. EDT on September 20, 2020. Also on September 19, 2020, Sidley Austin delivered a markup of the draft merger agreement to M&F, as well as a draft equity commitment letter and limited guaranty, and Ivanti’s financing counsel delivered debt financing materials, including a debt commitment letter, to M&F.
On September 20, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending, to discuss the revised Ivanti proposal. Representatives of Barclays discussed with our Board Ivanti’s proposed financing. Representatives of M&F discussed with our Board open issues in Ivanti’s draft merger agreement, including with respect to the remedies available to the Company, the limitations on the Company’s ability to pursue or accept alternative proposals, including the amount of any termination fee that would be payable by the Company in those circumstances, the extent of Ivanti’s regulatory commitments, and the treatment of unvested equity awards and other employee matters. Our Board determined that the proposed price was inadequate and directed Company management and representatives of Barclays to continue to negotiate with Ivanti. Our Board also discussed the deadline included in the Ivanti proposal, and determined to continue negotiations with Ivanti without regard to the deadline.
Later on September 20, 2020, M&F delivered a markup of the draft merger agreement to Sidley Austin, consistent with the positions discussed with our Board.
On September 21, 2020, Company E submitted a non-binding proposal for an all-cash acquisition of the Company with a proposed purchase price of $6.00 per share. The proposal by Company E was predicated on discussing its proposal with potential lenders and obtaining sufficient financing commitments and subject to the completion of due diligence.
Also on September 21, 2020, Company C provided a letter to our Board re-affirming its non-binding proposal for an all-cash acquisition of the Company with a proposed purchase price of $7.25 per share. Company C indicated that it would agree to fund the acquisition through an equity commitment, though it also would seek to utilize debt financing. Company C’s proposal contemplated additional confirmatory due diligence that it expected to be able to complete in that week. Along with its letter, Company C provided an issues list with respect to the draft merger agreement.
Later on September 21, 2020, our Board met, with Company management and representatives of Barclays and M&F also attending. Our Board discussed the proposal by Company E and the status of discussions with Ivanti and Company C, including that Ivanti continued to urge the Company to make a determination with respect to its proposal. Representatives of Barclays noted that Company G continued to conduct due diligence with respect to
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the Company, but had not made a proposal and despite requests to complete due diligence and provide a proposal did not seem to be proceeding quickly. Our Board determined to continue negotiations, and to request that Ivanti and Company C submit “best and final” proposals by September 23, 2020. On September 21, 2020, M&F delivered a markup of the draft equity commitment letter and limited guaranty to Sidley.
Following our Board meeting on September 21, 2020, at the direction of the Board, representatives of Barclays directed each of Ivanti and Company C to submit a “best and final” bid on September 23, 2020.
On September 22, 2020, in response to a request from Company E, representatives of Barclays provided to Company E a draft merger agreement, as prepared by M&F.
In the morning of September 23, 2020, Company C informed the Company that it was not going to provide a bid for the acquisition of the Company and was withdrawing its previously submitted proposal. Later on September 23, 2020, the Company was informed that Ivanti had agreed with the current owner of Company B to acquire Company B.
Later on September 23, 2020, Ivanti submitted a revised non-binding proposal for an all-cash purchase of the Company at $7.05 per share. Ivanti’s proposal letter indicated that it had completed all of its due diligence and was submitting a final proposal. The revised proposal also required that the Company agree to an exclusivity period through 6:30 p.m. PDT on September 25, 2020, in order to induce Ivanti to expend additional resources necessary to finalize and enter into a definitive agreement and related financial commitments. Sidley Austin delivered a markup of the draft merger agreement, equity commitment letter and limited guaranty, and Ivanti’s financing counsel delivered debt financing materials, including a debt commitment letter, to M&F.
Later that day our Board met, with Company management and representatives of Barclays and M&F also attending. Among other things, the Board discussed Company C's indication that it was no longer proceeding with a proposal for a transaction, including the potential impact of the agreement by Ivanti to acquire Company B on Company C's decision not to move forward since Company C's review of the Company to date had been conducted with Company B, and the additional financing that Ivanti would need in order to fund the acquisitions of both Company B and the Company. Our Board also discussed the status of discussions with Company E and Company G and the likelihood that either of them could present a final proposal in an appropriate timeframe. Representatives of Barclays noted that Ivanti had indicated that it expected the Company to agree that day to a period of exclusive negotiations. Our Board discussed the remaining significant issues in the merger agreement with Ivanti, including financing provisions, regulatory commitments and employee retention issues. Our Board determined to grant Ivanti a limited period of exclusive negotiations.
Early in the morning of September 24, 2020, the Company entered into an exclusivity agreement with Ivanti providing that, until 6:30 p.m. PDT on September 25, 2020, the Company would not negotiate an acquisition of the Company with any party other than Ivanti and the Company commenced performing its obligations under such agreement. M&F delivered a markup of the draft merger agreement, equity commitment letter, limited guaranty and debt financing materials, including a debt commitment letter, to Sidley Austin and Ivanti’s financing counsel. Also on September 24, 2020, after the close of trading, a news organization reported that the Company was nearing a potential sale, and on September 25, 2020, the Company’s shares closed at $6.64 after closing at $5.54 on September 24, 2020.
On September 25, 2020, our Board met in the morning, with Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe described the status of negotiations with Ivanti, including outstanding issues, and representatives of M&F discussed with our Board the status of the merger agreement and outstanding issues with respect to the potential transaction, including the status of Ivanti’s financing, regulatory commitments and employee retention issues. Our Board directed Company management, and representatives of Barclays and M&F to continue negotiations with Ivanti and to report to our Board later in the day.
Our Board reconvened later in the day on September 25, 2020, with Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe and the representatives of M&F described the progress of negotiations with respect to remaining issues, including employee retention issues. Our Board also discussed a request from Ivanti that exclusivity be extended by one additional day and, based on the status of negotiations, our Board determined that exclusivity be extended. In the early morning of September 26, 2020, the parties entered into an agreement to extend the exclusivity period to 6:30 p.m. PDT on September 26, 2020.
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On September 26, 2020, our Board met in the morning, with Company management and representatives of Barclays and M&F also attending. Mr. Biddiscombe described the status of negotiations with Ivanti since the last Board meeting. Representatives of M&F reviewed with our Board their fiduciary duties with respect to the proposed transaction. Representatives of M&F then reviewed with our Board the principal terms of the draft merger agreement. Our Board discussed the remaining open issues in the draft merger agreement, including regulatory commitments and employee retention issues. Representatives of Barclays discussed the financing obtained by Ivanti in connection with the proposed transaction. Representatives of Barclays also discussed its financial analysis of Ivanti’s proposed price of $7.05 per share of Company common stock. Our Board, with the assistance of representatives from its financial and legal advisors, discussed the Company’s review of strategic alternatives, including the outreach made by the Company to potential counterparties, and reviewed the history of the proposals that the Company had received. Representatives of Barclays also reviewed updated information as to the historical relationship of Barclays with the Company and Ivanti (including Ivanti’s principal stakeholder and the other party that had entered into the Joinder). Our Board directed Company management and the representatives of M&F and Barclays to continue to negotiate the open issues in the merger agreement, including regulatory commitments and employee retention issues, and to report to our Board later in the day.
Later on September 26, 2020, Sidley Austin delivered to M&F a revised draft merger agreement and financing counsel to Ivanti delivered to M&F revised financing documents. Company management and representatives of M&F and Sidley Austin and Ivanti’s financing counsel worked to finalize the draft merger agreement and the financing documents.
Later on September 26, 2020, our Board reconvened to consider the final proposed terms of the acquisition of the Company by Ivanti. Representatives of M&F discussed the resolution of the open issues previously discussed with our Board at the meeting earlier that day and reviewed with our Board the final material terms of the merger agreement. Representatives of M&F also reviewed the terms of the equity commitment letter, limited guaranty and debt commitment letter being delivered to Ivanti as part of the transaction, and discussed employee retention and severance plans. Representatives of Barclays reviewed for our Board the process that had been conducted to date by our Board, Company management and representatives of Barclays.
Representatives of Barclays then reviewed with our Board its financial analysis of the price of $7.05 per share of Company common stock to be offered to the holders of shares of Company common stock pursuant to the merger agreement. Following such discussion, upon the request of our Board, Barclays delivered its oral opinion to our Board, which was confirmed by delivery of a written opinion dated September 26, 2020, to the effect that, based upon and subject to the qualifications, limitations and assumptions set forth in Barclays’ written opinion, as of the date of such opinion, the merger consideration to be offered to the holders of shares of Company common stock in the merger was fair, from a financial point of view, to such holders. The full text of the written opinion of Barclays, dated September 26, 2020, which sets forth, among other matters, the assumptions made, procedures followed, matters considered and limitations and qualifications of the review undertaken by Barclays in rendering their opinion, is attached as Annex C to this proxy statement. For a further discussion of Barclays’ opinion, see the section entitled “Proposal 1: Proposal to Adopt the Merger Agreement—Opinion of MobileIon’s Financial Advisor”.
After discussion among the directors, with the assistance of representatives from the Company’s legal and financial advisors, our Board unanimously, among other things, (i) determined that the merger agreement and the transactions contemplated thereby are fair to and in the best interests of the Company and its stockholders, (ii) approved and declared advisable the merger agreement and the transactions contemplated thereby, and (iii) recommended that the stockholders of the Company adopt the merger agreement and approve the merger. The Compensation Committee of our Board also discussed and adopted a resolution authorizing, and recommended that our Board adopt and authorize, certain changes to the Company’s 2020 Executive Bonus Plan, 2020 Non-Executive Bonus Plan and the Company’s PSU Bonus Plan in light of the merger and merger agreement, which our Board, following such recommendation, authorized and approved.
Following our Board’s meeting, Ivanti delivered the equity and debt commitment letters and other financing documents that had been executed in connection with the merger agreement and the parties executed and delivered the merger agreement and the limited guaranty.
On September 28, 2020, prior to the opening of trading in the Company’s stock, the Company issued a press release, and the Company and Ivanti issued a joint press release, announcing the proposed merger.
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Recommendations of our Board and Reasons for the Merger
At a meeting on September 26, 2020, our Board unanimously approved the merger, the merger agreement and the other transactions contemplated by the merger agreement, and declared the merger and the other transactions contemplated by the merger agreement advisable and in the best interests of the Company and our stockholders. Accordingly, our Board has recommended that the stockholders vote “FOR” Proposal 1, the merger proposal.
In evaluating the merger, and in reaching its decision to approve, and to recommend that our stockholders approve the adoption of, the merger agreement, our Board consulted with our management team as well as our outside legal and financial advisors. Our Board considered a number of factors (without assigning weight to any one factor), including but not limited to the following material factors (not necessarily in order of importance) that our Board viewed as supporting its decision to approve the merger and to recommend that our stockholders approve the adoption of the merger agreement:
the current and historical trading prices of our common stock, and the fact that the merger consideration of $7.05 for each share of our common stock represents a premium of (1) 22.7% to the closing price of our common stock of $5.75 on August 17, 2020 (prior to the August 20, 2020 article published by Bloomberg about acquisition rumors involving the Company), (2) 26.4% to the trailing 30 day trading day average closing price of our common stock for the period ended August 17, 2020 and (3) a 41.2% premium to the trailing 90 day trading day average closing price of our common stock for the period ended August 17, 2020;
our Board’s knowledge of the business, operations, financial condition, earnings and prospects of the Company, as well as its knowledge of the current and prospective environment in which the Company operates, including economic and market conditions as well as the potential impact of the COVID-19 pandemic;
our Board's review of strategic alternatives reasonably available to the Company and the fact that the Company, with the assistance of representatives of Barclays, sought offers to acquire the Company, during which Barclays or Company management contacted or communicated with 20 parties, and that media reported publicly on two occasions that the Company was exploring options, including a potential sale, or was in advanced talks regarding a sale;
the facts that (1) Ivanti increased its proposed price for the acquisition of the Company four times, from $6.15 per share to $7.05 per share, during the course of negotiations, (2) prior to the entry into an exclusivity agreement with Ivanti, Company C withdrew its previously submitted proposal and informed the Company that it would not proceed with any further proposal with respect to an acquisition of the Company, (3) Company E’s initial proposal was at $6.00 per share, and (4) no other final offer was made;
the risks, uncertainties and costs of remaining an independent public company, given the Company’s relative size and competitive position in the market;
the fact that the merger consideration is a fixed cash amount, providing our stockholders with certainty of value and immediate liquidity upon the closing of the merger and does not expose them to future risks related to the business or the financial markets generally;
our ability under certain circumstances, pursuant to the merger agreement, to consider and respond to unsolicited acquisition proposals from third parties, and if, after consultation with our outside legal counsel and financial advisor, our Board has determined in good faith that such an acquisition proposal is a superior proposal and failure to take such actions would reasonably be expected to violate its fiduciary obligations pursuant to applicable law and, subject to the merger agreement including Ivanti’s right to negotiate improvements to the merger agreement for a limited period of time, our ability to terminate the merger agreement subject to the payment by the Company of the termination fee in certain circumstances, including entry into an alternative acquisition agreement by the Company to consummate such superior proposal;
the ability of our Board under certain circumstances, pursuant to the merger agreement, to change its recommendation to the Company’s stockholders in connection with any material event or development or material change in circumstances that was not (or the effect of which was not) actually known to our Board as of the date of the merger agreement, subject to Ivanti’s right pursuant to the merger
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agreement to negotiate improvements to the merger agreement for a limited period of time and further subject to the payment by the Company of the termination fee if Ivanti terminates the merger agreement in connection with such change of recommendation;
the probability that the merger would be completed based on, among other things, the lack of a financing condition and the $65.25 million reverse termination fee payable to us by Ivanti if the merger agreement is terminated under certain circumstances;
the terms and conditions of the merger agreement, which were reviewed by our Board with the assistance of our legal advisors, and the fact that such terms and conditions were the result of a competitive solicitation process and arm’s-length negotiations between Ivanti and us;
the oral opinion of Barclays to our Board on September 26, 2020, which was subsequently confirmed by delivery of a written opinion dated such date to the effect that, as of such date, and based upon and subject to the qualifications, limitations and assumptions set forth in Barclays’ written opinion, the merger consideration to be offered to the holders of Company common stock in the merger was fair, from a financial point of view, to such holders, as more fully described in the section entitled “—Opinion of MobileIron’s Financial Advisor” beginning on page 39 which provides a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion and which is qualified in its entirety by reference to the full text of the opinion attached hereto as Annex C;
the fact that the potential for closing the merger in a reasonable timeframe could reduce the amount of time in which our business would be subject to the potential uncertainty of closing and related disruption;
the fact that the merger would be subject to the approval of our stockholders, and our stockholders would be free to reject the merger by voting against the adoption of the merger agreement for any reason (although we may be required to pay a termination fee under certain circumstances if we subsequently were to enter into a definitive agreement relating to an acquisition transaction which is subsequently consummated or otherwise consummate an acquisition transaction); and
the appraisal rights in connection with the merger available to those of our stockholders who timely and properly exercise such appraisal rights under the DGCL if certain other conditions are met, as more fully described under “—Appraisal Rights” beginning on page 58.
Our Board also considered the following potentially negative factors (not necessarily in order of importance) in its deliberations concerning the merger agreement and the merger (without assigning weight to any one factor):
the merger would preclude our stockholders from having the opportunity to participate in the future performance of our assets, future potential earnings growth, future potential appreciation of the value of our common stock or future dividends that could be realized depending on our future performance;
the possibility that the merger might not be consummated, and if it is not consummated, (1) our directors, management and other employees will have expended extensive time and effort and will have experienced significant distractions from their work during the pendency of the transaction; (2) we will have incurred significant transaction costs; (3) our continuing business relationships with customers, business partners and employees may be adversely affected; (4) the trading price of our stock could be adversely affected; (5) the reverse termination fee of $65.25 million payable by Ivanti to us under specified circumstances will not be available in all instances in which the merger agreement is terminated and may not be sufficient to compensate us for the damage suffered by our business as a result of the pendency of the merger or of the strategic initiatives forgone by us during this period; (6) the other contractual and legal remedies available to us in the event of termination of the merger agreement may be insufficient, costly to pursue or both; (7) the potential adverse perception of the market on our prospects; and (8) the termination fee of $30.45 million that may become payable by us to Ivanti upon termination of the merger agreement under specified circumstances;
the costs involved in connection with entering into and completing the merger and the substantial time and effort of our management team required to consummate the merger and the related disruptions in the operation of our business;
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the restrictions on the conduct of our business contained in the merger agreement, which could delay or prevent us from undertaking certain activities and capitalizing on certain business opportunities that may arise prior to the consummation of the merger;
the difficulty in retaining and incentivizing employees given the announcement of the merger as a result of, among other things, the fact that not all unvested equity was subject to acceleration and thus certain unvested equity would be cancelled at the effective time of the merger without any consideration;
pendency of the merger or failure to complete the merger may cause harm to relationships with our customers and other business associates and may divert management and employee attention away from the day-to-day operation of our business;
our inability to solicit competing acquisition proposals and the possibility that the $30.45 million termination fee payable by us upon the termination of the merger agreement in certain circumstances could discourage other potential bidders from making a competing bid to acquire us;
the fact that an all cash merger would be taxable to our stockholders for U.S. federal income tax purposes;
limits on our ability to seek specific performance to require Ivanti to complete the merger, and the limit under certain circumstances of our remedy following termination of the merger agreement to a reverse termination fee payable by Ivanti in the amount of $65.25 million; and
the fact that certain of our executive officers and directors may have interests in the merger that may be different from, or in addition to, our stockholders generally. See “—Interests of Our Named Executive Officers and Directors in the Merger” beginning on page 51.
Merger Consideration
Under the terms of the merger agreement, immediately prior to the effective time of the merger, each share of our common stock that is outstanding immediately prior to the effective time of the merger (other than shares of our common stock (i) held by the Company as treasury stock, (ii) owned by Ivanti or Merger Sub, (iii) owned by any direct or indirect wholly owned subsidiary of Ivanti or Merger Sub or (iv) held by stockholders who have neither voted in favor of the merger proposal nor consented thereto in writing and who have properly and validly exercised their statutory rights of appraisal in respect of such shares of our common stock in accordance with Section 262 of the Delaware General Corporation Law (the “DGCL”) as described further under “Proposal 1: Proposal to Adopt the Merger Agreement—Appraisal Rights” beginning on page 58 of this proxy statement) will be canceled and extinguished and automatically converted into the right to receive cash in the amount equal to $7.05 per share, without interest and less any applicable withholding taxes payable in respect thereof.
Consequences if the Merger is Not Completed
If the adoption of the merger agreement is not approved by our stockholders, or if the merger is not completed for any other reason, our stockholders will not receive any payment for their shares of our common stock pursuant to the merger agreement. Instead, we will remain a public company and our common stock will continue to be registered under the Exchange Act and listed on the Nasdaq Global Select Market.
Opinion of MobileIron’s Financial Advisor
MobileIron engaged Barclays to act as its financial advisor with respect to pursuing strategic alternatives for MobileIron, including a possible sale of MobileIron, pursuant to an engagement letter dated March 9, 2020. On September 26, 2020, Barclays rendered its oral opinion (which was subsequently confirmed in writing) to the Board that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the merger consideration to be offered to the stockholders of MobileIron in the merger is fair, from a financial point of view, to such stockholders.
The full text of Barclays’ written opinion, dated as of September 26, 2020, is attached as Annex C to this proxy statement. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in
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rendering its opinion. You are urged to read the opinion carefully in its entirety. The following is a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion. This summary is qualified in its entirety by reference to the full text of the opinion.
Barclays’ opinion, the issuance of which was approved by Barclays’ Valuation and Fairness Opinion Committee, is addressed to the Board, addresses only the fairness, from a financial point of view, of the merger consideration to be offered to the stockholders of MobileIron in the merger and does not constitute a recommendation to any stockholder of MobileIron as to how such stockholder should vote with respect to the merger or any other matter. The terms of the merger were determined through arm’s-length negotiations between MobileIron and Ivanti and were unanimously approved by the Board. Barclays did not recommend any specific form of consideration to MobileIron or that any specific form of consideration constituted the only appropriate consideration for the merger. Barclays was not requested to address, and its opinion does not in any manner address, MobileIron’s underlying business decision to proceed with or effect the merger, the likelihood of the consummation of the merger, or the relative merits of the merger as compared to any other transaction in which MobileIron may engage. In addition, Barclays expressed no opinion on, and its opinion does not in any manner address, the fairness of the amount or the nature of any compensation to any officers, directors or employees of any parties to the merger, or any class of such persons, relative to the merger consideration to be offered to the stockholders of MobileIron in the merger. No limitations were imposed by the Board upon Barclays with respect to the investigations made or procedures followed by it in rendering its opinion.
In arriving at its opinion, Barclays, among other things:
reviewed and analyzed the merger agreement and the specific terms of the merger;
reviewed and analyzed publicly available information concerning MobileIron that Barclays believed to be relevant to its analysis, including MobileIron’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019 and Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2020 and June 30, 2020;
reviewed and analyzed financial and operating information with respect to the business, operations and prospects of MobileIron furnished to Barclays by MobileIron, including financial projections prepared by MobileIron’s management (the “Projections”) certain of which are included under “—Forward-Looking Financial Information” and including the estimated amounts of net operating losses expected by the management of MobileIron (the “NOLs”);
reviewed and analyzed a trading history of MobileIron common stock from September 25, 2017 through September 25, 2020 and a comparison of such trading history with those of other companies that Barclays deemed relevant;
reviewed and analyzed a comparison of the historical financial results and present financial condition of MobileIron with those of other companies that Barclays deemed relevant;
reviewed and analyzed a comparison of the financial terms of the merger with the financial terms of certain other recent transactions that Barclays deemed relevant;
reviewed and analyzed the results of Barclays’ efforts to solicit indications of interest from third parties with respect to a sale of MobileIron;
reviewed and analyzed published estimates of independent research analysts with respect to the future financial performance and price targets of MobileIron;
had discussions with the management of MobileIron concerning its business, operations, assets, liabilities, financial condition and prospects; and
has undertaken such other studies, analyses and investigations as Barclays deemed appropriate.
In arriving at its opinion, Barclays assumed and relied upon the accuracy and completeness of the financial and other information used by Barclays without any independent verification of such information (and did not assume responsibility or liability for any independent verification of such information). Barclays also relied upon the assurances of management of MobileIron that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the Projections, upon advice of MobileIron, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently
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available estimates and judgments of the management of MobileIron as to MobileIron’s future financial performance and that MobileIron would perform substantially in accordance with such projections. With respect to the NOLs, upon the advice of MobileIron, Barclays assumed that the amounts of the NOLs were reasonable and that the NOLs would be realized in accordance with the estimate of such losses. In arriving at its opinion, Barclays assumed no responsibility for and expressed no view as to any such projections or estimates or the assumptions on which they were based. In arriving at its opinion, Barclays did not conduct a physical inspection of the properties and facilities of MobileIron and did not make or obtain any evaluations or appraisals of the assets or liabilities of MobileIron. Barclays’ opinion was necessarily based upon market, economic and other conditions as they existed on, and could be evaluated as of, September 26, 2020. Barclays assumed no responsibility for updating or revising its opinion based on events or circumstances that may have occurred after, September 26, 2020. In addition, Barclays expressed no opinion or view as to the potential effects of the volatility currently being experienced in the credit, financial and stock markets on MobileIron or the merger.
Barclays assumed that the executed merger agreement would conform in all material respects to the last draft reviewed by Barclays. Additionally, Barclays assumed the accuracy of the representations and warranties contained in the merger agreement and all the agreements related thereto. Barclays also assumed, upon the advice of MobileIron, that all material governmental, regulatory and third party approvals, consents and releases for the merger would be obtained within the constraints contemplated by the merger agreement and that the merger will be consummated in accordance with the terms of the merger agreement without waiver, modification or amendment of any material term, condition or agreement thereof. Barclays did not express any opinion as to any tax or other consequences that might result from the merger, nor did Barclays’ opinion address any legal, tax, regulatory or accounting matters, as to which Barclays understood MobileIron had obtained such advice as it deemed necessary from qualified professionals.
In connection with rendering its opinion, Barclays performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, Barclays did not ascribe a specific range of values to the shares of MobileIron common stock but rather made its determination as to fairness, from a financial point of view, to MobileIron’s stockholders of the merger consideration to be offered to such stockholders in the merger on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.
In arriving at its opinion, Barclays did not attribute any particular weight to any single analysis or factor considered by it but rather made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the particular transaction. Accordingly, Barclays believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.
Summary of Material Financial Analyses
The following is a summary of the material financial analyses used by Barclays in preparing its opinion to the Board. The summary of Barclays’ analyses and reviews provided below is not a complete description of the analyses and reviews underlying Barclays’ opinion. The preparation of a fairness opinion is a complex process involving various determinations as to the most appropriate and relevant methods of analysis and review and the application of those methods to particular circumstances, and, therefore, is not readily susceptible to summary description.
For the purposes of its analyses and reviews, Barclays made numerous assumptions with respect to industry performance, general business, economic, market and financial conditions and other matters, many of which are beyond the control of MobileIron or any other parties to the merger. No company, business or transaction considered in Barclays’ analyses and reviews is identical to MobileIron, Ivanti, Merger Sub or the merger, and an evaluation of the results of those analyses and reviews is not entirely mathematical. Rather, the analyses and reviews involve complex considerations and judgments concerning financial and operating characteristics and other factors that could affect the acquisition, public trading or other values of the companies, businesses or transactions considered in Barclays’ analyses and reviews. None of MobileIron, Ivanti, Merger Sub, Barclays or any other person assumes responsibility if future results are materially different from those discussed. Any
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estimates contained in these analyses and reviews and the ranges of valuations resulting from any particular analysis or review are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of companies, businesses or securities do not purport to be appraisals or reflect the prices at which the companies, businesses or securities may actually be sold. Accordingly, the estimates used in, and the results derived from, Barclays’ analyses and reviews are inherently subject to substantial uncertainty.
The summary of the financial analyses and reviews summarized below include information presented in tabular format. In order to fully understand the financial analyses and reviews used by Barclays, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses and reviews. Considering the data in the tables below without considering the full description of the analyses and reviews, including the methodologies and assumptions underlying the analyses and reviews, could create a misleading or incomplete view of Barclays’ analyses and reviews.
Selected Comparable Company Analysis
In order to assess how the public market values shares of similar publicly traded companies and to provide a range of relative implied equity values per share of MobileIron common stock by reference to those companies, which could then be used to calculate implied valuation ranges, Barclays reviewed and compared specific financial and operating data relating to MobileIron with selected companies that Barclays, based on its experience in the security and broader software industry, deemed comparable to MobileIron. The selected comparable companies with respect to MobileIron were:
Security Software Companies
Other Financially Comparable Software Companies
Absolute Software Corporation
Basware Oyj
BlackBerry Limited
Brightcove Inc.
FireEye, Inc.
Commvault Systems, Inc.
F-Secure Oyj
New Relic, Inc.
OneSpan Inc.
QAD Inc.
Tufin Software Technologies Ltd.
Zuora, Inc.
Zix Corporation
 
 
Barclays calculated and compared various financial multiples and ratios of MobileIron and the selected comparable companies. As part of its selected comparable company analysis, Barclays calculated and analyzed each company’s ratio of its enterprise value to estimated revenue for calendar year 2020 and estimated revenue for calendar year 2021. The enterprise value of each company was obtained by adding its short and long-term debt to the sum of the market value of its common equity, the value of any preferred stock and the book value of any minority interest, and subtracting its cash and cash equivalents. All of these calculations were performed, and based on publicly available financial data (including FactSet and Wall Street Research) and closing prices, as of September 25, 2020, the last trading date prior to the delivery of Barclays’ opinion. The results of this selected comparable company analysis are summarized below:
 
Selected Security
Software Companies
 
Range
Median
Enterprise Value as a multiple of 2020E Revenue
2.3x-4.3x
2.9x
Enterprise Value as a multiple of 2021E Revenue
1.9x-3.9x
2.7x
 
Selected Other Financially
Comparable Software Companies
 
Range
Median
Enterprise Value as a multiple of 2020E Revenue
2.2x-5.1x
3.2x
Enterprise Value as a multiple of 2021E Revenue
2.0x-4.5x
3.0x
Barclays selected the comparable companies listed above because of similarities in one or more business or operating characteristics with MobileIron. However, because no selected comparable company is exactly the same as MobileIron, Barclays believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected comparable company analysis. Accordingly, Barclays also made qualitative judgments concerning differences
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between the business, financial and operating characteristics and prospects of MobileIron, and the selected comparable companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degree of operational risk between MobileIron and the companies included in the selected company analysis. Based upon these judgments, Barclays selected a range of 3.00x to 4.25x multiples of enterprise value to estimated calendar year 2020 revenue and a range of 2.75x to 4.00x multiples of enterprise value to estimated calendar year 2021 revenue, for MobileIron and applied such range to the Projections to calculate a range of implied prices per share of MobileIron common stock by subtracting from the enterprise value MobileIron’s estimated net debt as of June 30, 2020 and dividing such amount by the fully diluted number of shares of MobileIron common stock. The following summarizes the result of these calculations:
 
Implied Price Per Share
EV/CY2020E Revenue
$5.30 - $7.22
EV/CY2021E Revenue
$5.26 - $7.33
Barclays noted that on the basis of the selected comparable company analysis, the merger consideration of $7.05 per share of MobileIron common stock was within the ranges of implied values per share calculated on a standalone basis pursuant to the foregoing analysis.
Selected Precedent Transaction Analysis
Barclays reviewed and compared the purchase prices and financial multiples paid in selected other transactions that Barclays, based on its experience with merger and acquisition transactions, deemed relevant. Barclays chose such transactions based on, among other things, the similarity of the applicable target companies in the transactions to MobileIron with respect to the size, growth prospects, revenue type, profitability levels and other characteristics of their businesses. The following table sets forth the transactions analyzed based on such characteristics and the results of such analysis:
 
Acquiror
Target
Security Software Transactions
 
 
 
STG Partners, LLC
RSA Security LLC
 
Advent International Corporation
Forescout Technologies, Inc.
 
Open Text Corporation
Carbonite, Inc.
 
Thoma Bravo LLC
Sophos Group plc
 
Carbonite, Inc.
Webroot Inc.
 
Thoma Bravo LLC
Imperva, Inc.
 
Thoma Bravo LLC
Barracuda Networks, Inc.
 
Symantec Corporation
LifeLock, Inc.
 
Thoma Bravo LLC
Imprivata, Inc.
 
Avast Software s.r.o.
AVG Technologies NV
 
Vista Equity Partners Management, LLC
Ping Identity Holding Corp.
 
BlackBerry Limited
Good Technology Corporation
 
Raytheon Technologies Corporation
Websense, Inc.
 
Belden Inc.
Tripwire, Inc.
 
Gemalto NV
SafeNet, Inc.
 
Vista Equity Partners Management, LLC
Websense, Inc.
 
Dell Technologies Inc.
SonicWALL, Inc.
Other Financially
Comparable Software
Transactions
 
 
 
Synchronoss Technologies, Inc.
Intralinks Holdings, Inc.
 
Vista Equity Partners Management, LLC
Infoblox Inc.
 
Accel-KKR LLC
SciQuest, Inc.
 
Oracle Corporation
Opower, Inc.
 
Pitney Bowes Inc.
Borderfree, Inc.
 
Francisco Partners Management LP
ClickSoftware Technologies Ltd.
 
Lexmark International, Inc.
Kofax, Inc.
The reasons for and the circumstances surrounding each of the selected precedent transactions analyzed were diverse and there are inherent differences in the business, operations, financial conditions and prospects of MobileIron and the companies included in the selected precedent transaction analysis. Accordingly, Barclays believed that a purely quantitative selected precedent transaction analysis would not be particularly meaningful in
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the context of considering the merger. Barclays therefore made qualitative judgments concerning differences between the characteristics of the selected precedent transactions and the merger which would affect the acquisition values of the selected target companies and MobileIron. Below is a table setting forth the range and median values for theSelected Precedent Transactions.
 
Security Software Transactions
 
Range
Median
Enterprise Value
as a multiple of NTM Revenue
2.3x-6.0x
3.5x
 
Other Financially Comparable Software
Transactions
 
Range
Median
Enterprise Value
as a multiple of NTM Revenue
2.7x-3.7x
3.0x
Based upon these judgments, Barclays selected a range of 3.25x to 4.50x multiples of enterprise value to forward twelve-month revenue and applied such range to the Projections to calculate a range of implied prices per share of MobileIron by subtracting from the enterprise value MobileIron’s estimated net debt as of June 30, 2020 and dividing such amount by the fully diluted number of shares of MobileIron common stock. The following table sets forth the results of such analysis.
 
Implied Price Per Share
EV/FTM Revenue
$5.59 - $7.46
Barclays noted that on the basis of the selected precedent transaction analysis, the merger consideration of $7.05 per share was within the range of implied values per share calculated using the Projections.
Discounted Cash Flow Analysis
In order to estimate the present value of MobileIron common stock, Barclays performed a discounted cash flow analysis of MobileIron. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows of the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.
To calculate the estimated enterprise value of MobileIron using the discounted cash flow method, Barclays added (i) MobileIron’s projected after-tax unlevered free cash flows for the second half of fiscal year 2020 and fiscal years 2021 through 2025 based on the Projections to (ii) the “terminal value” of MobileIron as of December 31, 2025, and discounted such amount to its present value as of June 30, 2020 (the last balance sheet date of MobileIron prior to Barclays delivering its opinion) using a range of selected discount rates. The after-tax unlevered free cash flows were calculated by taking the tax-affected earnings before interest, tax expense (excluding any tax savings from the use of the NOLs) and amortization and subtracting capital expenditures and adjusting for changes in working capital. The residual value of MobileIron at the end of the forecast period, or “terminal value,” was estimated in two ways, first by selecting a range of terminal value multiples based on enterprise value to forward twelve-month non-GAAP EBITDA for the year ending December 31, 2025 of 9.0x to 12.0x, which was derived by Barclays’ utilizing its professional judgement and experience and applying such range to the Projections (the “Exit Multiple Method”) and second, by selecting a range of perpetuity growth rates of 3.0% to 4.5%, which was derived by Barclays utilizing its professional judgment and experience, taking into account the Projections and market expectations (the “Perpetuity Growth Rate Method”). The range of after-tax discount rates of 9.5% to 11.5% was selected based on an analysis of the weighted average cost of capital of MobileIron.
Barclays then calculated a range of implied prices per share of MobileIron for the Exit Multiple Method by subtracting estimated net debt as of June 30, 2020 from the estimated enterprise value using the Exit Multiple Method described above, adding to such result the estimated present value of the NOLs and dividing such amount by the fully diluted number of shares of MobileIron common stock. Barclays also then calculated a range of implied prices per share of MobileIron for the Perpetuity Growth Rate Method by subtracting estimated net
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debt as of June 30, 2020 from the estimated enterprise value using the Perpetuity Growth Rate Method described above, adding the estimated present value of the NOLs and dividing such amount by the fully diluted number of shares of MobileIron common stock. The following summarizes the result of these calculations:
 
Implied Price Per Share
DCF – Exit Multiple Method
$5.58 - $7.66
DCF – Perpetuity Growth Rate Method
$4.50 - $7.43
Barclays noted that on the basis of the discounted cash flow analysis, the merger consideration of $7.05 per share of MobileIron common stock was within the ranges of implied values per share calculated using the Projections.
Other Factors
Barclays also reviewed and considered other factors, which were not considered part of its financial analyses in connection with rendering its advice or opinion, but were references for informational purposes, including, among other things, the Historical Share Price Analysis, the Equity Analyst Target Prices Analysis, the Illustrative Leveraged Acquisition Analysis and the Illustrative Trading Premium Analysis described below.
Historical Share Price Analysis
To illustrate the trend in the historical trading prices of MobileIron common stock, Barclays considered historical data with regard to the trading prices of MobileIron common stock for the period from September 25, 2019 to September 25, 2020. Barclays noted that during the period from September 25, 2019 to September 25, 2020, the closing price of MobileIron common stock ranged from $3.08 to $7.03. The Historical Share Price Analysis for MobileIron was used for informational purposes only and were not included in Barclays' financial analyses.
Equity Analyst Target Prices Analysis
Barclays reviewed the target prices, as of September 25, 2020, published by equity research analysts covering MobileIron. The per share price target range for MobileIron common stock ranged from $4.00 to $11.00. Equity analyst target prices were used for informational purposes only and were not included in Barclays' financial analyses.
Illustrative Leveraged Acquisition Analysis
Barclays performed an illustrative leveraged acquisition analysis in order to ascertain a price for MobileIron common stock which might be achieved in a leveraged buyout transaction with a financial buyer based upon current market conditions. Barclays assumed the following in its analysis: (i) a debt capital structure of MobileIron comprised of pro forma leverage of total debt to last-twelve month revenue of 1.5x, (ii) an equity investment that would achieve a rate of return of approximately 15% to 23% during a 5.5 year period, and (iii) a projected non-GAAP EBITDA terminal value multiple of 9.0 to 12.0x for such period. Based upon these assumptions and the Projections, Barclays calculated an illustrative range of implied prices per share of MobileIron. The following summarizes the result of these calculations:
 
Illustrative Range of
Implied Price Per Share
Leveraged Acquisition Analysis
$4.44 - $6.52
Barclays noted that on the basis of the illustrative leveraged acquisition analysis, the meger consideration of $7.05 per share of MobileIron common stock was above the range of implied values per share calculated using the Projections. The illustrative leveraged acquisition analysis was used for informational purposes only and was not included in Barclays' financial analyses.
Illustrative Transaction Premium Analysis
In order to assess the premium offered to the stockholders of MobileIron in the merger relative to the premiums offered to stockholders in other transactions, Barclays reviewed the premium paid in the US Technology industry in all public transactions of technology companies valued between $250 million and $5 billion from 2013 to September 25, 2020. The reasons for and the circumstances surrounding each of the transactions analyzed in the transaction premium analysis were diverse and there are inherent differences in the business, operations, financial
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conditions and prospects of MobileIron and the companies included in the transaction premium analysis. For each transaction, using publicly available information, Barclays calculated the premium per share paid by the acquirer by comparing the announced transaction value per share to the target company’s historical average share price during the following periods: (i) one trading day prior to announcement or unaffected date and (ii) 30 calendar days prior to announcement or unaffected date. This analysis indicated a range of first to third quartile premiums as follows:
 
Premium
Premium to Unaffected 1-Day Price
17%-42%
Premium to Unaffected 30-Day Price
22%-44%
Barclays applied the 1-day premium range and 30-day premium range above to the unaffected closing price of $5.75 of MobileIron common stock as of August 17, 2020 and to the 30 day unaffected closing average of $5.58 of MobileIron common stock as of August 17, 2020, respectively, to calculate a range of implied prices per share of MobileIron. The following summarizes the result of these calculations:
 
Implied Price Per Share
1-Day Premium Range
$6.75 - $8.14
30-Day Premium Range
$6.80 - $8.04
Barclays noted that on the basis of the transaction premium analysis, the merger consideration of $7.05 per share was within the range of implied values per share calculated using the closing price of MobileIron common stock on August 17, 2020. The illustrative transaction premium analysis was used for informational purposes only and was not included in Barclays' financial analyses.
General
Barclays is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. The Board selected Barclays because of its familiarity with MobileIron and its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally, as well as substantial experience in transactions comparable to the merger.
Barclays is acting as financial advisor to MobileIron in connection with the merger. As compensation for its services in connection with the merger, a fee of $500,000 became due to Barclays upon the delivery of Barclays’ opinion, which is referred to as the “Opinion Fee”. The Opinion Fee was not contingent upon the conclusion of Barclays’ opinion or the consummation of the merger. Additionally, compensation of approximately $13.3 million will be payable on completion of the merger against which the amounts paid for the opinion will be credited. In addition, MobileIron has agreed to reimburse Barclays for a portion of its reasonable out-of-pocket expenses incurred in connection with the merger and to indemnify Barclays for certain liabilities that may arise out of its engagement by MobileIron and the rendering of Barclays’ opinion. Barclays has performed various investment banking and financial services for MobileIron and Ivanti and their affiliates in the past, and expects to perform such services in the future, and has received, and expects to receive, customary fees for such services. Specifically, in the past two years, Barclays has not performed any investment banking and financial services for MobileIron and Ivanti for which Barclays has received any investment banking fees. In addition, Barclays and its affiliates in the past have provided, currently are providing, or in the future may provide, investment banking services to Ivanti’s principal stakeholder and the other party that had entered into the Joinder (as described above in “—Background of the Merger”) and certain of their respective affiliates and portfolio companies and have received or in the future may receive customary fees for rendering such services, including (i) having acted or acting as financial advisor to such parties and certain of their respective portfolio companies and affiliates in connection with certain mergers and acquisition transactions; (ii) having acted or acting as arranger, bookrunnner and/or lender for such parties and certain of their respective portfolio companies and affiliates in connection with their respective corporate finance needs, including providing financing for various acquisition transactions; and (iii) having acted or acting as underwriter, initial purchaser and placement agent for various equity and debt offerings undertaken by such parties and certain of their respective portfolio companies and affiliates.
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Barclays and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other financial and non-financial services. In the ordinary course of its business, Barclays and its affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of the Company, Ivanti, Ivanti’s principal stakeholder and the other party that had entered into the Joinder (as described above in “—Background of the Merger”) and certain of the portfolio companies and/or affiliates of Ivanti’s principal stakeholder and such other party for its own account and for the accounts of its customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.
Forward-Looking Financial Information
Other than historically providing periodic earnings guidance, we do not as a matter of course make public our management’s forecasts or projections of future performance or earnings. In connection with the proposed merger, however, Company management prepared and provided to our Board and to our financial advisor, Barclays, and Ivanti and other potential bidders that entered into a nondisclosure agreement with the Company and proceeded with due diligence certain projections, a summary of which is provided below. All of the projections summarized below were provided to Barclays for its use and reliance in connection with its financial analyses and opinion, and the projections through December 31, 2023, with the exception of the projections of unlevered free cash flow, also were provided to Ivanti and such other potential bidders. The projections were prepared on an accounting basis consistent with our financial statements; however, the projections were not prepared with a view toward public disclosure or compliance with published guidelines of the SEC, the guidelines established by the American Institute of Certified Public Accountants for prospective financial information or generally accepted accounting principles (“GAAP”). Our independent registered public accounting firm has not compiled or examined any of the projections or expressed any conclusion or provided any form of assurance with respect to the projections and, accordingly, assumes no responsibility for them.
The projections included below are forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Exchange Act and are subject to risks and uncertainties that could cause actual results to differ materially from those statements and should be read with caution. They are subjective in many respects and thus susceptible to interpretations and periodic revisions based on actual experience and recent developments. While presented with numerical specificity, the projections were not prepared by us in the ordinary course and are based upon a variety of estimates and hypothetical assumptions made by our management with respect to, among other things, changes in revenue mix, decreases in operating expense, competition, increased growth in cloud adoption, our ability to attract new customers and penetrate our existing customer base, renewal rates for subscriptions and services by existing customers, general economic, market, interest rate and financial conditions, the availability and cost of capital for future investments, and those risks and uncertainties described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2019, subsequent Quarterly Reports on Form 10-Q and current reports on Form 8-K filed with the SEC. See also the section entitled “Cautionary Note Regarding Forward-Looking Statements” beginning on page 22.
None of the assumptions underlying the projections may be realized, and they are inherently subject to significant business, economic and competitive uncertainties and contingencies, all of which are difficult to predict and many of which are beyond our control. Accordingly, there can be no assurance that the assumptions made in preparing the projections will prove accurate, and actual results may materially differ. In addition, the projections do not take into account any of the transactions contemplated by the merger agreement, including the merger, which may also cause actual results to materially differ. The summary of the projections is not included herein to induce any stockholder to vote in favor of the Merger or any of the other proposals to be voted on at the special meeting or to influence any stockholders to make any other investment decision.
MobileIron stockholders are cautioned not to rely on the projections presented below, as MobileIron may not achieve the results set forth in the projections regardless of whether the merger is completed.
For these reasons, as well as the bases and assumptions on which the projections were compiled, the inclusion of the information set forth below should not be regarded as an indication that the projections will be an accurate prediction of future events, or that the Company, Ivanti or any of their respective affiliates, advisors or representatives or any other recipient of the projections considered, or now considers, them to be necessarily predictive of actual future events, and they should not be relied on as such. None of the Company, Ivanti or any
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of their respective affiliates, advisors or other representatives has made, or makes, any representation to any stockholder regarding the information contained in the projections and, except as required by applicable securities laws, we do not intend to update or otherwise revise the projections to reflect circumstances existing after the date when made or to reflect the occurrences of future events even in the event that any or all of the assumptions are shown to be in error.
We use certain non-GAAP financial measures, including annual recurring revenue (“ARR”), non-GAAP EBITDA, non-GAAP operating income, non-GAAP net income and unlevered free cash flow. We use these non-GAAP financial measures in analyzing our financial results and believe that they enhance investors’ understanding of our financial performance and the comparability of our results to prior periods, as well as against the performance of other companies. Non-GAAP financial measures should not be considered in isolation from, or as a substitute for, financial information prepared in accordance with GAAP. Our calculation of non-GAAP financial measures may differ from other companies and non-GAAP EBITDA, non-GAAP net income and unlevered free cash flow are not necessarily comparable with similar titles used by other companies. Furthermore, certain of these projections take into account our anticipated use of NOLs for federal income tax purposes. We had NOLs with a balance of $365.3 million as of December 31, 2019.
The following table summarizes our management’s financial projections for the fiscal years ending December 31, 2020 through December 31, 2025 with respect to total revenue, non-GAAP operating income, non-GAAP EBITDA, non-GAAP net income and unlevered free cash flow (dollars in millions):
 
2020E
2021E
2022E
2023E
2024E
2025E
ARR(1)(2)
$199
$229
$267
$310
NA
NA
 
 
 
 
 
 
 
Total revenue
205
221
257
300
342
383
Non-GAAP operating income (loss)(2)(3)
(12)
4
42
75
NA
NA
Non-GAAP EBITDA(4)
(10)
6
43
76
90
105
Non-GAAP net income (loss)(2)(5)
(14)
2
40
72
NA
NA
Unlevered free cash flow(6)
(23)
(27)
13
41
52
63
(1)
ARR is defined as the annualized value of all recurring revenue contracts active at the end of a reporting period. ARR includes the annualized value of subscriptions and the annualized value of software support contracts related to perpetual licenses active at the end of a reporting period and does not include revenue reported as perpetual license or professional services in our consolidated statement of operations.
(2)
Projections for this metric were only prepared through 2023.
(3)
Non-GAAP operating income (loss) is defined as operating income (loss) adjusted to add back stock-based compensation expense, amortization of intangible assets and restructuring expense.
(4)
Non-GAAP EBITDA is defined as non-GAAP operating income (loss) plus depreciation expense.
(5)
Non-GAAP net income (loss) is defined as GAAP net income (loss) adjusted to add back after-tax stock-based compensation expense, amortization of intangible assets and restructuring expense.
(6)
Unlevered free cash flow is defined as non-GAAP EBITDA less taxes (assuming a 23% effective tax rate), stock-based compensation expense, investment in working capital and capital expenditures.Unlevered free cash flow shown for 2020E is for the second half of 2020 only.
Financing
General
Ivanti expects to fund the amounts required to complete the merger and pay related expense will be financed through a combination of the following:
the Lenders have committed, severally and not jointly, to provide debt financing in the aggregate principal amount of up to $1.995 billion, consisting of a (i) revolving credit facility in the principal amount of up to (x) $175 million if both the merger and the Private Company Acquisition are consummated or (ii) $125 million if only the merger or the Private Company Acquisition is consummated) (the “Revolving Credit Facility”) and (ii) term loan facility in the principal amount of up to $1.82 billion (the “First Lien Term Facility” and together with the Revolving Credit Facility, the “First Lien Facilities”), of which a tranche in an amount equal to $575 million (the “MobileIron Term
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Loan Tranche”) will be used to complete the merger and pay related fees and expenses, on the terms and subject to the conditions set forth in the debt commitment letter, which was delivered to Ivanti in advance of the execution of the merger agreement (see “—Debt Financing”);
Ivanti will (a) issue “Rule 144A-for-life” senior unsecured notes generating up to $560 million in gross proceeds (the “Notes”) in a private placement, or to the extent the Notes are not, or cannot be, issued on or prior to the Closing Date or the gross proceeds of the Notes are less than $560 million, the Lenders have committed, severally and not jointly, to provide debt financing in the form of a senior unsecured bridge facility, in the in the aggregate principal amount of $560 million (the “Bridge Facility” and together with the First Lien Facilities, the “Debt Financing”), on the terms and subject to the conditions set forth in the debt commitment letter, of which a tranche in an amount equal to $175 million will be used to complete the merger and related fees and expenses (the “MobileIron Bridge Tranche” and, together with the MobileIron Term Loan Tranche, collectively, the “MobileIron Tranches”) (see “—Debt Financing”) or (b) exercise its right, on or prior to 20 business days after the date of the debt commitment letter, to arrange lenders to commit to provide second lien financing to replace the entire aggregate principal amount of the Bridge Facility and such lenders will fund a second lien facility in lieu of the issuance of the Notes or the Bridge Facility; and
the guarantors have, severally and not jointly, committed to provide equity financing in an aggregate amount of up to $100 million (the “Equity Financing”), on the terms and subject to the conditions set forth in the equity commitment letter, which was delivered to Ivanti concurrently with the execution of the merger agreement.
Debt Financing
In connection with the entry into the merger agreement, on September 26, 2020, the Lenders provided the debt commitment letter to Ivanti, which provides for a commitment of $1.995 billion to consummate the merger and the Private Company Acquisition, refinance existing indebtedness of Ivanti (the “Ivanti Refinancing”) and for working capital and other general corporate purposes, consisting of a revolving credit facility in the principal amount of up to (i) $175 million if both the merger and the Private Company Acquisition are consummated or (ii) $125 million if only the merger or the Private Company Acquisition is consummated) and term loan facility in the principal amount of up to $1.82 billion, of which a portion equal to (x) $840 million will be used to consummate the Ivanti Refinancing, (y) $575 million will be used to complete the merger and pay related fees and expenses (the “MobileIron Term Loan Tranche”) and (z) $405 million will be used to pay the purchase price with respect to the Private Company Acquisition (the “Private Company Term Loan Tranche”). The debt commitment letter also provides for the issuance of “Rule 144A-for-life” senior unsecured notes generating up to $560 million in gross proceeds (the “Notes”) in a private placement, or to the extent the Notes are not, or cannot be, issued on or prior to the closing date or the gross proceeds of the Notes are less than $560 million, a senior unsecured bridge facility in the aggregate principal amount of $560 million to consummate the merger and the Private Company Acquisition, of which a portion equal to (x) $260 million will be used to consummate the Ivanti Refinancing, (y) $175 million will be used to complete the merger and pay related fees and expenses (the “MobileIron Bridge Loan Tranche” and, together with the MobileIron Term Loan Tranche, collectively, the “MobileIron Tranches”) and (z) $125 million will be used to pay the purchase price with respect to the Private Company Acquisition (the “Private Company Bridge Loan Tranche” and, together with the Private Company Term Loan Tranche, collectively, the “Private Company Tranches”). To the extent either the merger or the Private Company Acquisition is consummated prior to the other, the Private Company Tranches or the MobileIron Tranches, as applicable, will be in the form of delayed draw term or bridge loans, as applicable.
The Lenders’ obligation to provide the MobileIron Tranches, pursuant to the debt commitment letter, is subject to certain conditions, including without limitation, the following (subject to certain exceptions and qualifications as set forth in the debt commitment letter):
no company material adverse effect will have occurred after the date of the merger agreement that is continuing;
the substantially simultaneous closing of the merger in accordance in all material respects with the merger agreement and the substantially concurrent making of the Equity Financing;
the substantially concurrent consummation of the Ivanti Refinancing;
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the receipt of certain specified financial statements of certain Ivanti, MobileIron and Private Company Target entities (provided that the financial statements of such Private Company Target entities will not be required to the extent the commitments with respect to the Private Company Tranches have been terminated);
the execution and delivery of definitive documentation with respect to the Debt Financing;
the lenders shall have received certain required “know your customer” and related information required by banking regulations at least three business days prior to the closing date;
the lenders shall have received all fees and expense reimbursements required to be paid to them on the closing date;
with respect to the Bridge Facility and, if applicable, if the Lenders elect to reallocate a portion of the First Lien Term Facility to a first lien senior secured notes facility (the “First Lien Notes”), (i) the engagement of investment banks to privately place the Notes and the first Lien Notes; (ii) the receipt by the investment banks of certain documentation, including a customary offering memorandum, and data necessary to receive customary “comfort” from independent accountants in connection with the notes offering (provided that the financial information of the Private Company Target entities will not be required to the extent the commitments with respect to the Private Company Tranches have been terminated); and (iii) the completion of the note marketing period for the MobileIron Tranches and, unless the commitments with respect to the Private Company Tranches have been terminated, the note marketing period for the Private Company Tranches; and
the completion of the bank marketing period for the MobileIron Term Loan Tranche and, if the commitments with respect to the Private Company Tranches have not been terminated, the bank marketing period for the Private Company Tranche.
The lender’s commitments under the debt commitment letter automatically terminate upon the earliest to occur of: (i) five business days after April 21, 2021 (as such date may be extended to June 26, 2021 in accordance with the merger agreement as in effect on the date of the debt commitment letter), (ii) the initial funding date of the Debt Financing under the debt commitment letter, (iii) five business days following the later of (x) the termination of the merger agreement in accordance with its terms without the funding of the Debt Financing and (y) the termination of the Private Company acquisition agreement in accordance with its terms without the funding of the Debt Financing, (iv) with respect to the MobileIron Tranches only, five business days following the termination of the merger agreement in accordance with its terms without the funding of the Debt Financing, and (vi) the consummation of the merger and the Private Company Acquisition without the funding of the debt commitments.
Equity Financing
In connection with the signing of the merger agreement, on September 26, 2020, the guarantors delivered the equity commitment letter to Ivanti, pursuant to which such entities committed to contribute an aggregate amount of up to $100 million to Ivanti in connection with the merger solely for the purpose of funding a portion of the merger consideration required to be paid by Ivanti pursuant to the merger agreement. The obligation of each investor to fund its respective share of the equity commitment is subject to the following conditions:
satisfaction or waiver by Ivanti (with the prior written consent of such investor) of the mutual closing conditions and the conditions precedent to Ivanti’s and Merger Sub’s obligations to complete the merger; and
the substantially contemporaneous consummation of the closing.
The obligation of each investor to fund its respective share of the equity commitment will automatically and immediately terminate (a) with respect to each respective investor, the funding of its commitment, (b) the closing of the merger or (c) the valid termination of the merger agreement in accordance with its terms.
Limited Guaranty
Concurrently with the execution of the merger agreement, the guarantors have executed and delivered a limited guaranty in favor of the Company pursuant to which, subject to the terms and conditions contained therein, each guarantor has agreed to unconditionally and irrevocably guarantee, on a several and not joint basis, if applicable,
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(1) the payment of the obligations of Ivanti to pay the reverse termination fee (as described in more detail under “The Merger Agreement—Termination Fees” on page 84), and (2) all damages for any willful breach of the merger agreement by Ivanti or Merger Sub (collectively, the “guaranteed obligations”). The guaranteed obligations of each of the guarantors are subject to an aggregate cap in the amount of $65.25 million and an individual cap applicable to each guarantor equal to such guarantor’s specified percentage share of the guaranteed obligations.
The limited guaranty will terminate upon the earliest to occur of:
the closing of the merger;
the receipt by the Company of an indefeasible payment to the Company of each guarantor’s respective proportion of the guaranteed obligations, subject to the caps described above; or
the date that is three months following a valid termination of the merger agreement in accordance with its terms, unless prior to such date the Company has made a claim in writing with respect to the guaranteed obligations or commenced a proceeding against the any guarantor, Ivanti or Merger Sub alleging that any guaranteed obligation is due and owing from the guarantors.
Interests of our Named Executive Officers and Directors in the Merger
When considering the recommendation of our Board that you vote to approve the proposal to adopt the merger agreement, you should be aware that some of our directors and executive officers have interests in the merger that may be deemed to be different from, or in addition to, the interests of our stockholders generally, as more fully described below. Our Board was aware of these interests and considered them, among other matters, during its deliberations on the merits of the merger, in evaluating and overseeing the negotiation of the merger agreement, in reaching its decision to approve and adopt the merger agreement, and in deciding to recommend, and recommending that stockholders vote in favor of adopting the merger agreement. Interests of our named executive officers that may be different from or in addition to the interests of our shareholders generally include, among others:
in the case of our non-employee directors, in connection with the consummation of the merger, their Company RSUs will fully accelerate in exchange for a cash payment;
in the case of our current named executive officers, in connection with the consummation of the merger, their Accelerating RSUs, Accelerating PSUs and Accelerating Options will be converted to a cash payment payable at the same time(s) that the underlying equity awards would have vested in accordance with their terms and will remain subject to our named executive officers remaining in continuous service with us or our successors though the applicable vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of their employment in connection with or following the merger will continue to apply);
in the case of our current named executive officers, the performance-based vesting conditions of their Company PSUs will be deemed satisfied at target level of performance and 50% of their total target number of Company PSUs will single-trigger vest upon the consummation of a change of control transaction occurs prior to the later of December 31, 2020 or the termination of the merger agreement;
in the case of our current named executive officers, in the event of a qualifying termination of employment within the period of three months prior to or one year following the effective time of the merger, they will be eligible to receive certain contractual cash severance payments, full acceleration of Company equity awards, and continued health and life insurance benefits for a specified period of time following such termination of employment; and
in the case of our current named executive officers, if their employment is terminated by the Company without cause or if an executive officer resigns due to a constructive termination, in each case, prior to February 28, 2021, they will remain entitled to payment of any bonus under our Nine-Month Plans and Three-Month Plans (as discussed below).
For more information, see the sections entitled “The Merger—Background of the Merger” beginning on page 28 and “The Merger—Recommendations of our Board and Reasons for the Merger” beginning on page 37. These interests are described in more detail below in the section entitled “Non-Binding, Advisory Vote on Merger-Related Compensation” beginning on page 90.
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Treatment of Outstanding Equity-Based Awards
Company Options
Vested Company Options. At the effective time of the merger, each outstanding Company Option that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such vested Company Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such vested Company Option.
Accelerating Options. At the effective time of the merger, each Accelerating Option will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such Accelerating Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such Accelerating `Option. Such amount will be payable at the same time(s) that the applicable Accelerating Option would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with us, our successors or any of their affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
At the effective time of the merger, each Company Option that is not an Accelerating Option and that is unvested immediately prior to the effective time of the merger and each Company Option that has an exercise price that is equal to or greater than $7.05 will be canceled without payment or consideration (in each case, subject to consummation of the merger).
Treatment of Company RSUs
Vested Company RSUs. At the effective time of the merger, each Company RSU that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to the vested Company RSU award multiplied by (ii) $7.05.
Accelerating RSUs. At the effective time of the merger, each Accelerating RSU that is outstanding immediately prior to the effective time of the merger will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such Accelerating RSU multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating RSU would have vested in accordance with its terms and will remain subject to the holder remaining in continued service with the Company, its successor or any of its affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
At the effective time of the merger, each Company RSU that is not an Accelerating RSU and is unvested immediately prior to the effective time of the merger will be cancelled without consideration (subject to consummation of the merger).
Treatment of Company PSUs
Vested Company PSUs. At the effective time of the merger, each outstanding Company PSU that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such vested Company PSU award multiplied by (ii) $7.05.
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Accelerating PSUs. At the effective time of the merger, each Accelerating PSU will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the maximum number of target shares of our common stock subject to such Accelerating PSU award multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating PSUs would have vested in accordance with its terms (provided that the Accelerating PSUs will be solely subject to service-based vesting conditions following the effective time of the merger) and will remain subject to the holder remaining in continuous service with the Company, its successor or any of its affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company PSU that is not an Accelerating PSU and that is unvested immediately prior to the effective time of the merger will be cancelled at the effective time of the merger without consideration (subject to consummation of the merger).
Acceleration of Non-Employee Director RSU Awards
Pursuant to our non-employee director compensation policy, each of our non-employee directors was granted an annual RSU award under our 2014 Equity Incentive Plan (the “2014 Equity Plan”) on the date of our 2020 annual meeting of stockholders. These awards would have vested, subject to the director’s continued service with us, on the date of our next annual meeting of stockholders. Our director compensation policy provides that, upon the merger, non-employee directors will fully vest in all outstanding equity awards granted under the 2014 Equity Plan.
Acceleration of Company PSU Awards
Each of our named executive officers holds Company PSUs that are subject to single-trigger vesting acceleration if a change of control transaction occurs prior to the later of December 31, 2020 or the termination of the merger agreement. Pursuant to the terms of the Company PSUs, upon the consummation of the merger, the performance goals will be deemed satisfied at target, and, notwithstanding the service-based vesting schedule, 50% of the total target number of Company PSUs will become vested immediately prior to the completion of the merger and treated as Vested PSUs.
Company Stock-Settled Bonus Plan
We maintain an annual Three- and Nine-Month Executive Bonus Plan and an annual Three- and Nine-Month Non-Executive Bonus Plan, which provide opportunities for incentive compensation based on our actual achievement of pre-established financial objectives that is settled in shares of our common stock (the “Company Stock-Settled Bonus Plans”). Ivanti was not involved in the Company's consideration of the treatment of the stock settled bonuses.
Under the Nine-Month Plans, the Company’s employees who participate are eligible to receive a cash bonus equal to the product obtained by multiplying (x) each Company employee’s full bonus entitlement under the Company stock-settled bonus plans for the 2020 calendar year, based on the greater of (A) performance at target levels and (B) actual performance from January 1, 2020 through September 30, 2020, with such level of achievement determined by the Company by (y) 75%.
Under the Three-Month Plans, the Company’s employees who participate are eligible to receive a cash bonus equal to the product obtained by multiplying (x) each Company employee’s full bonus entitlement under the Company stock-settled bonus plans for the 2020 calendar year, based on the greater of (A) performance at target levels and (B) actual performance from October 1, 2020 through the earlier of December 31, 2020 and the effective time for the merger, with such level of achievement determined by the Company by (y) 25%.
In the case of the Three-Month Plans and the Nine-Month Plans, the level of achievement will be determined by the Company based on the application of the metrics and terms previously adopted by the Company. The Three-Month Plans and the Nine-Month Plans will be paid no later than the first payroll date following February 28, 2021; provided that, such bonuses will only be paid to a Company employee participating in such bonus plans who is employed by the Company on the applicable date of payment of such bonus and any employee who is terminated by the Company or one of its subsidiaries, as applicable, without cause or who resigns due to a constructive termination prior to February 28, 2021 will remain entitled to payment of any such bonus. The terms of the Three-Month Plans and the Nine-Month Plans are binding on the Company as well as any successor.
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Indemnification
The Company’s directors and executive officers also have rights to indemnification and directors’ and officers’ liability insurance that will survive completion of the merger. Please see “The Merger Agreement—Directors’ and Officers’ Indemnification and Insurance” beginning on page 85.
Change of Control Agreements
Severance Arrangements for Mr. Biddiscombe
Pursuant to that certain Executive Employment Agreement, dated November 1, 2017, between the Company and our President and Chief Executive Officer, Simon Biddiscombe (the “Employment Agreement”), Mr. Biddiscombe is eligible for certain change of control severance benefits upon a qualifying termination. The merger would constitute a change of control under the Employment Agreement.
In the event that Mr. Biddiscombe is involuntarily terminated without Cause or resigns for Good Reason (each, as defined in the Employment Agreement), during the time period commencing three months before the effective time of the merger and ending on the date that is 12 months after the effective time of the merger, subject to his timely execution and non-revocation of a release of claims, he will be entitled to receive the following benefits in addition to any accrued benefits:
cash severance in an amount equal to (i) his then-current annual base salary, paid pursuant to the Company’s regular payroll schedule during the 12 months immediately following his termination and (ii) 100% of his targeted annual bonus, in each case less standard payroll deductions and withholdings;
payment of (i) health insurance premiums pursuant to the Company’s group health insurance plans as provided pursuant to COBRA until the earlier of (A) 18 months after termination or (B) such time as he is eligible for health insurance coverage with a subsequent employer; or (ii) alternatively and in the Company’s sole discretion, a fully taxable cash amount equal to 150% of Mr. Biddiscombe’s applicable COBRA premiums for the applicable COBRA period; and
all unvested equity awards held by Mr. Biddiscombe will become immediately vested and issuable and exercisable, as applicable.
Company Severance Plan
Pursuant to the Company’s Severance Plan, certain current and future employees, including all of our named executive officers other than Mr. Biddiscombe, are eligible for certain change of control severance benefits upon a qualifying termination. The merger would constitute a change of control under the Severance Plan.
Under the Severance Plan, if our named executive officers experience termination without cause or constructive termination (as defined in the Severance Plan) during the time period commencing three months before the effective time of the merger and ending on the date that is 12 months after the effective time of the merger, subject to the executive officer’s timely execution and non-revocation of a release of claims, our named executive officers would be entitled to the following payments and benefits:
annual base salary for 12 months from the termination, less standard payroll deductions and withholdings;
full acceleration of vesting of any outstanding shares of common stock, stock options to purchase common stock or restricted stock units; and
coverage under our group health insurance plans or payment of the full amount of health insurance premiums as provided under COBRA for up to 12 months after termination, provided, however, that Mr. Baumgaertner is not entitled to continued healthcare benefits upon termination.
The Employment Agreement with Mr. Biddiscombe and our Severance Plan generally provide that benefits may be limited to a lesser amount so that no portion of the benefits is subject to the imposition of excise taxes under the “golden parachute” provisions of Section 280G of the Code, if such limitation results in the receipt by the executive officer, on an after-tax basis, of a greater amount of benefits than without such limitation.
For an estimate of the amounts that would be payable to each of our named executive officers in connection with the merger, see the section entitled “Non-Binding, Advisory Vote on Merger-Related Compensation” beginning on page 90.
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Regulatory Matters
General Efforts
Under the merger agreement, Ivanti, Merger Sub and MobileIron agreed to use reasonable best efforts to take, or cause to be taken, all actions, do, or cause to be done, all things and assist and cooperate with the other parties in doing, or causing to be done, all things necessary, proper or advisable under applicable law or otherwise to consummate and make effective the merger in the most expeditious manner practicable, including: (1) obtaining all consents, waivers, approvals, orders and authorizations from governmental authorities; and (2) making all registrations, declarations and filings with governmental authorities, in each case that are necessary or advisable to consummate the merger.
HSR Act; Antitrust Laws; Investment Screening Laws
Under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), the merger cannot be completed until Ivanti and MobileIron file a Notification and Report Form with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “DOJ”), and the applicable waiting period has expired or been terminated. The parties filed a notification and report form with the FTC and DOJ on October 2, 2020. A transaction notifiable under the HSR Act may not be completed until the expiration of a 30-calendar day waiting period following the parties’ filing of their respective HSR Act notification forms or the early termination of that waiting period.
Under the German Act Against Restraints of Competition of 1958, as amended, the merger cannot be completed until the merger is notified to the German Federal Cartel Office (Bundeskartellamt, the “FCO”) and the FCO has either cleared the merger or the applicable decision deadline has expired. The parties made the necessary notification to the FCO on October 23, 2020. The applicable decision deadline will expire on November 23, 2020, unless the deadline is extended.
Under the Austrian Competition Act, the merger cannot be completed until the merger is notified to the Austrian Federal Competition Authority (Bundeswettbewerbsbehörde, the “FCA”) and the FCA has either cleared the merger or the applicable decision deadline has expired. The parties made the necessary notification to the FCA on October 23, 2020. The applicable waiting period will expire on November 20, 2020, unless extended.
MobileIron and Ivanti have each agreed to use its respective reasonable best efforts to (1) cooperate and coordinate (and cause its respective affiliates to cooperate and coordinate) with the other in the making of regulatory filings; (2) supply (or cause the other to be supplied) with any additional information that may be required by the other party in making regulatory filings or requested or requested by the FTC, the DOJ or the governmental authorities of any other applicable jurisdiction in which any regulatory filing is made; and (3) take all action necessary to, as soon as practicable, (a) cause the expiration or termination of the applicable waiting periods pursuant to the HSR Act and any other antitrust laws or investment screening laws applicable to the merger and (b) obtain any required consents pursuant to any antitrust laws or investment screening laws applicable to the merger.
At any time before or after consummation of the merger, notwithstanding the termination of the waiting period under the HSR Act, the FTC or the DOJ could take such action under the antitrust laws as it deems necessary or desirable, including seeking to enjoin the completion of the merger, seeking divestiture of substantial assets of the parties or requiring the parties to license, or hold separate, assets or terminate existing relationships and contractual rights. At any time before or after the completion of the merger, and notwithstanding the termination of the waiting period under the HSR Act, any state could take such action under its antitrust laws or investment screening laws as it deems necessary or desirable. Such action could include seeking to enjoin the completion of the merger or seeking divestiture of substantial assets of MobileIron or Ivanti. Private parties may also seek to take legal action under or the violation of antitrust laws and investment screening laws under certain circumstances.
Each of Ivanti and Merger Sub agreed to, if and to the extent necessary to obtain clearance of the merger pursuant to the HSR Act and any other antitrust laws or investment screening laws applicable to the merger, (1) offer, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, (a) the sale, divestiture, license or other disposition of any and all of the capital stock or other equity or voting interests, assets (whether tangible or intangible), rights, products or businesses of Ivanti and Merger Sub (and their respective affiliates, if applicable), on the one hand, and MobileIron and its subsidiaries, on the other hand; and (b) any other restrictions on the activities of Ivanti and Merger Sub (and their respective affiliates, if applicable),
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on the one hand, and MobileIron and its subsidiaries, on the other hand; and (2) contest, defend and appeal any legal proceedings, whether judicial or administrative, challenging the merger agreement or the consummation of the merger, except, in each case, to the extent such actions would reasonably be expected to have a material adverse effect on Ivanti, Merger Sub, and their respective affiliates.
Other Regulatory Approvals
One or more governmental bodies may impose a condition, restriction, qualification, requirement or limitation when it grants the necessary approvals and consents to the merger. Third parties may also seek to intervene in the regulatory process or litigate to enjoin or overturn regulatory approvals, which actions could significantly impede or even preclude obtaining required regulatory approvals. There is currently no way to predict how long it will take to obtain all of the required regulatory approvals or whether such approvals will ultimately be obtained, and there may be a substantial period of time between the approval by MobileIron stockholders and the completion of the merger.
Although we expect that all required regulatory clearances and approvals will be obtained, we cannot assure you that these regulatory clearances and approvals will be timely obtained, obtained at all or that the granting of these regulatory clearances and approvals will not involve the imposition of additional conditions on the completion of the merger or require changes to the terms of the merger agreement. These conditions or changes could result in the conditions to the merger not being satisfied.
Prohibited Ivanti Actions
Ivanti agreed that, during the period from the date of the merger agreement to the effective time of the merger, Ivanti will not, nor will it permit any of its subsidiaries to, consummate, enter into any agreement providing for, or announce any acquisition, business combination or similar transaction, in each case that is intended to or has (or would reasonably be expected to have) the effect of preventing the consummation of the merger or delaying consummation of the merger beyond the termination date provided in the merger agreement.
Material U.S. Federal Income Tax Consequences
The following is a general discussion of the material U.S. federal income tax consequences of the merger to holders of common stock whose shares are exchanged for cash pursuant to the merger. This discussion is based on the provisions of the Internal Revenue Code of 1986, as amended (the “Code”), applicable U.S. Treasury Regulations promulgated thereunder, judicial opinions and administrative rulings and published positions of the Internal Revenue Service (the “IRS”), each as in effect as of the date hereof. These authorities are subject to change or differing interpretations, possibly on a retroactive basis, and any such change or interpretation could affect the accuracy of the statements and conclusions set forth in this discussion. This discussion is for general information purposes only and does not purport to be a complete analysis of all potential tax consequences.
This discussion does not address any tax consequences of the unearned income Medicare contribution tax or the Foreign Account Tax Compliance Act of 2010 (including the Treasury Regulations promulgated thereunder and intergovernmental agreements entered into pursuant thereto or in connection therewith), nor does it address any considerations under state, local or foreign tax laws or U.S. federal estate or gift tax laws. This discussion is not binding on the IRS or the courts and, therefore, the conclusions set forth in this discussion could be subject to challenge, which challenge could be sustained.
For purposes of this discussion, the term “U.S. Holder” means a beneficial owner of common stock that is for U.S. federal income tax purposes:
a citizen or resident individual of the United States;
a corporation, or other entity classified as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the United States, any state thereof, or the District of Columbia;
a trust if (i) a court within the United States is able to exercise primary supervision over the trust’s administration, and one or more U.S. persons are authorized to control all substantial decisions of the trust, or (ii) such trust has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person; or
an estate the income of which is subject to U.S. federal income tax regardless of its source.
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A “Non-U.S. Holder” is a beneficial owner of shares of Company common stock that is neither a U.S. Holder nor a partnership (nor an entity or arrangement treated as a partnership) for U.S. federal income tax purposes.
This discussion applies only to of shares of common stock who hold such shares as a capital asset within the meaning of Section 1221 of the Code (generally, property held for investment). Further, this discussion does not purport to consider all aspects of U.S. federal income taxation that may be relevant to a holder light of its particular circumstances, or that may apply to holders subject to special treatment under U.S. federal income tax laws (including, for example, insurance companies, dealers or brokers in securities or foreign currencies, traders in securities who elect to apply the mark-to-market method of accounting, holders subject to the alternative minimum tax, U.S. Holders that have a functional currency other than the U.S. dollar, tax-exempt organizations, tax-qualified retirement plans, banks and other financial institutions, mutual funds, a foreign pension fund or its affiliates, certain former citizens or former long-term residents of the United States, partnerships (or other entities or arrangements treated as partnerships for U.S. federal income tax purposes), S corporations or other pass-through entities or investors in such entities, real estate investment trusts, regulated investment companies, holders who hold shares of common stock as part of a hedge, straddle, constructive sale, conversion or other integrated transaction, a holder required to accelerate the recognition of any item of gross income with respect to shares of common stock as a result of such income being recognized on an applicable financial statement, and holders who acquired their shares of common stock through the exercise of employee stock options or other compensation arrangements). This discussion also does not address the U.S. federal income tax consequences to holders of shares of common stock who exercise appraisal rights in connection with the merger under the DGCL.
If a partnership (including for this purpose any entity or arrangement treated as a partnership for U.S. federal income tax purposes) holds shares of common stock, the tax treatment of a partner in such partnership will generally depend on the status of the partner and the activities of the partnership. Partnerships and other pass-through entities holding common stock, and any person who is a partner or member of such entities, should consult their own tax advisors regarding the tax consequences of the merger.
This discussion of material U.S. federal tax consequences is for general information purposes only and is not tax advice. Holders of common stock are urged to consult their own tax advisors to determine the particular tax consequences to them of the merger, including the applicability and effect of the alternative minimum tax, the unearned income Medicare contribution tax and any other U.S. federal, state, local, foreign income or other tax laws.
U.S. Federal Income Tax Consequences to U.S. Holders
The receipt of cash by U.S. Holders in exchange for shares of common stock pursuant to the merger will be a taxable transaction for U.S. federal income tax purposes. In general, for U.S. federal income tax purposes, a U.S. Holder who receives cash in exchange for shares of common stock pursuant to the merger will recognize gain or loss in an amount equal to the difference, if any, between (i) the amount of cash received and (ii) the U.S. Holder’s adjusted tax basis in its shares of common stock.
Any such gain or loss will be long-term capital gain or loss if a U.S. Holder’s holding period in the shares of common stock surrendered in the merger is greater than one year as of the date of the merger. Long-term capital gains of certain non-corporate holders, including individuals, are generally subject to U.S. federal income tax at preferential rates. The deductibility of capital losses is subject to limitations. If a U.S. Holder acquired different blocks of common stock at different times or different prices, such U.S. Holder must determine its adjusted tax basis and holding period separately with respect to each block of common stock.
U.S. Federal Income Tax Consequences to Non-U.S. Holders
Any gain realized by a Non-U.S. Holder pursuant to the merger generally will not be subject to U.S. federal income tax unless:
the gain is effectively connected with a trade or business of such Non-U.S. Holder in the United States (and, if required by an applicable income tax treaty, is attributable to a permanent establishment maintained by such Non-U.S. Holder in the United States), in which case such gain generally will be subject to U.S. federal income tax at rates generally applicable to U.S. persons, and, if the Non-U.S. Holder is a corporation, such gain may also be subject to the branch profits tax at a rate of 30 percent (or a lower rate under an applicable income tax treaty);
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such Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of the completion of the merger, and certain other specified conditions are met, in which case such gain will be subject to U.S. federal income tax at a rate of 30 percent (or a lower rate under an applicable income tax treaty); or
the Company is or has been a “United States real property holding corporation” as such term is defined in Section 897(c) of the Code (a “USRPHC”), at any time within the shorter of the five-year period preceding the merger or such Non-U.S. Holder's holding period with respect to the applicable shares of common stock (which we refer to as the “relevant period”) and, such Non-U.S. Holder owns (directly, indirectly or constructively) more than five percent of our common stock at any time during the relevant period, in which case such gain will be subject to U.S. federal income tax at rates generally applicable to U.S. persons (as described in the first bullet point above), except that the branch profits tax will not apply. Although there can be no assurances in this regard, we believe that we are not, and have not been, a USRPHC at any time during the five-year period preceding the merger.
Information Reporting and Backup Withholding
Payments made in exchange for shares of common stock pursuant to the merger may be subject, under certain circumstances, to information reporting and backup withholding (currently at a rate of 24%). To avoid backup withholding, a U.S. Holder that does not otherwise establish an exemption should complete and return to the applicable withholding agent a properly completed and executed IRS Form W-9, certifying under penalties of perjury that such U.S. Holder is a “United States person” (within the meaning of the Code), that the taxpayer identification number provided is correct and that such U.S. Holder is not subject to backup withholding. To avoid backup withholding, a Non-U.S. Holder is required to establish an exemption, for example, by completing and providing to the applicable withholding agent the appropriate IRS Form W-8 for the Non-U.S. Holder, in accordance with the instructions thereto.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be refunded by the IRS or credited against a holder’s U.S. federal income tax liability, if any, provided that such holder furnishes the required information to the IRS in a timely manner.
Appraisal Rights
If the merger is consummated, MobileIron stockholders who do not vote in favor of the adoption of the merger agreement (or consent thereto in writing), who properly demand an appraisal of their shares, who continuously hold their shares through the effective time of the merger, who otherwise comply with the procedures of Section 262 of the DGCL and who do not withdraw their demands or otherwise lose their rights to appraisal may, subject to the conditions thereof, be entitled to seek appraisal of their shares in connection with the merger under Section 262 of the DGCL, which we refer to as “Section 262.” Unless the context requires otherwise, all references in Section 262 and in this summary to a “stockholder” or to a “holder of shares” are to a record holder of common stock.
The following discussion is not a complete statement of the law pertaining to appraisal rights under the DGCL and is qualified in its entirety by the full text of Section 262, which is attached to this proxy statement as Annex B and incorporated into this proxy statement by reference. The following summary does not constitute any legal or other advice and does not constitute a recommendation that MobileIron stockholders exercise their appraisal rights under Section 262. Only a holder of record of shares of common stock is entitled to demand appraisal of the shares registered in that holder’s name. A person having a beneficial interest in shares of common stock held of record in the name of another person, such as a bank, broker or other nominee, must act promptly to cause the record holder to demand an appraisal of such holder’s shares. If you hold your shares of our common stock through a bank, broker or other nominee and you wish to exercise appraisal rights, you should consult with your bank, broker or the other nominee to ensure that appraisal rights are exercised. Stockholders should carefully review the full text of Section 262 as well as the information discussed below.
Under Section 262, if the merger is completed, holders of record of shares of common stock who (1) submit a written demand for appraisal of such stockholder’s shares to MobileIron prior to the vote on the adoption of the merger agreement; (2) do not vote in favor of the adoption of the merger agreement or consent thereto in writing; (3) continuously are the record holders of such shares through the effective time of the merger; and (4) otherwise comply with the procedures and satisfy certain ownership requirements set forth in Section 262
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may be entitled to have their shares of common stock appraised by the Delaware Court of Chancery and to receive payment in cash of the “fair value” of the shares of common stock, exclusive of any element of value arising from the accomplishment or expectation of the merger, together with (unless the Delaware Court of Chancery in its discretion determines otherwise for good cause shown) interest on the amount determined by the Delaware Court of Chancery to be fair value from the effective date of the merger through the date of payment of the judgment. However, after an appraisal petition has been filed, the Delaware Court of Chancery, at a hearing to determine stockholders entitled to appraisal rights, will dismiss appraisal proceedings as to all MobileIron stockholders who asserted appraisal rights unless (1) the total number of shares of common stock for which appraisal rights have been pursued or perfected exceeds one percent of the outstanding shares of common stock as measured in accordance with subsection (g) of Section 262; or (2) the value of the merger consideration in respect of such shares exceeds $1 million. We refer to these conditions as the “ownership thresholds.” Unless the Delaware Court of Chancery, in its discretion, determines otherwise for good cause shown, interest on an appraisal award will accrue and compound quarterly from the effective time of the merger through the date the judgment is paid at five percent over the Federal Reserve discount rate (including any surcharge) as established from time to time during such period (except that, if at any time before the entry of judgment in the proceeding, the surviving corporation makes a voluntary cash payment to each stockholder seeking appraisal, interest will accrue thereafter only upon the sum of (i) the difference, if any, between the amount so paid and the fair value of the shares as determined by the Delaware Court of Chancery; and (ii) interest theretofore accrued, unless paid at that time). The surviving corporation is under no obligation to make such voluntary cash payment prior to such entry of judgment.
Under Section 262, where a merger agreement is to be submitted for adoption at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, must notify each of its stockholders of record as of the record date for notice of such meeting that appraisal rights are available and include in the notice a copy of Section 262. This proxy statement constitutes MobileIron’s notice to MobileIron stockholders that appraisal rights are available in connection with the merger, and the full text of Section 262 is attached to this proxy statement as Annex B. In connection with the merger, any holder of shares of common stock who wishes to exercise appraisal rights, or who wishes to preserve such holder’s right to do so, should review Annex B carefully. Failure to strictly comply with the requirements of Section 262 in a timely and proper manner may result in the loss of appraisal rights under the DGCL. A stockholder who loses his, her or its appraisal rights will be entitled to receive the merger consideration described in the merger agreement without interest and less any applicable withholding taxes. Because of the complexity of the procedures for exercising the right to seek appraisal of shares of common stock, MobileIron believes that if a stockholder is considering exercising such rights, that stockholder should seek the advice of legal counsel.
Stockholders wishing to exercise the right to seek an appraisal of their shares of common stock must do ALL of the following:
the stockholder must not vote in favor of the proposal to adopt the merger agreement;
the stockholder must deliver to MobileIron a written demand for appraisal before the vote on the merger agreement at the special meeting;
the stockholder must continuously hold the shares from the date of making the demand through the effective time of the merger (a stockholder will lose appraisal rights if the stockholder transfers the shares before the effective time of the merger); and
a stockholder (or any person who is the beneficial owner of shares of common stock held either in a voting trust or by a nominee on behalf of such person) or the surviving corporation must file a petition in the Delaware Court of Chancery demanding a determination of the value of the stock of all such stockholders within 120 days after the effective time of the merger (the surviving corporation is under no obligation to file any petition and has no intention of doing so).
In addition, after an appraisal petition has been filed, the Delaware Court of Chancery, at a hearing to determine stockholders entitled to appraisal rights, will dismiss appraisal proceedings as to all MobileIron stockholders who asserted appraisal rights unless one of the ownership thresholds is met.
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Because a proxy that does not contain voting instructions will, unless revoked, be voted in favor of the adoption of the merger agreement, a MobileIron stockholder who votes by proxy and who wishes to exercise appraisal rights must vote against the adoption of the merger agreement, abstain or not vote his, her or its shares.
Filing Written Demand
Any holder of shares of MobileIron common stock wishing to exercise appraisal rights must deliver to MobileIron, before the vote on the adoption of the merger agreement at the special meeting at which the proposal to adopt the merger agreement will be submitted to the stockholders, a written demand for the appraisal of the stockholder's shares, and that stockholder must not submit a blank proxy or vote in favor of the proposal to adopt the merger agreement. A holder of shares of MobileIron common stock wishing to exercise appraisal rights must hold of record the shares on the date the written demand for appraisal is made and must continue to hold the shares of record through the effective time. A proxy that is submitted and does not contain voting instructions will, unless revoked, be voted in favor of the proposal to adopt the merger agreement, and it will constitute a waiver of the stockholder's right of appraisal and will nullify any previously delivered written demand for appraisal. Therefore, a stockholder who submits a proxy and who wishes to exercise appraisal rights must submit a proxy containing instructions to vote against the proposal to adopt the merger agreement, abstain from voting on the proposal to adopt the merger agreement or not vote its shares. Neither voting against the proposal to adopt the merger agreement nor abstaining from voting or failing to vote on the proposal to adopt the merger agreement will, in and of itself, constitute a written demand for appraisal satisfying the requirements of Section 262. The written demand for appraisal must be in addition to and separate from any proxy or vote on the proposal to adopt the merger agreement. A proxy or vote against the proposal to adopt the merger agreement will not constitute a demand. A stockholder's failure to make the written demand prior to the taking of the vote on the proposal to adopt the merger agreement at the special meeting of MobileIron stockholders will constitute a waiver of appraisal rights.
Only a holder of record of shares of MobileIron common stock is entitled to demand appraisal for the shares registered in that holder's name. A demand for appraisal in respect of shares of MobileIron common stock should be executed by or on behalf of the holder of record, and must reasonably inform MobileIron of the identity of the holder and state that the person intends thereby to demand appraisal of the holder's shares in connection with the merger. If the shares are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, such demand must be executed by or on behalf of the record owner, and if the shares are owned of record by more than one person, as in a joint tenancy and tenancy in common, the demand must be executed by or on behalf of all joint owners. An authorized agent, including an authorized agent for two (2) or more joint owners, may execute a demand for appraisal on behalf of a holder of record; however, the agent must identify the record owner or owners and expressly disclose that, in executing the demand, the agent is acting as agent for the record owner or owners.
STOCKHOLDERS WHO HOLD THEIR SHARES IN BROKERAGE OR BANK ACCOUNTS OR OTHER NOMINEE FORMS, AND WHO WISH TO EXERCISE APPRAISAL RIGHTS, SHOULD CONSULT WITH THEIR BROKERS, BANKS AND NOMINEES, AS APPLICABLE, TO DETERMINE THE APPROPRIATE PROCEDURES FOR THE BROKER, BANK OR OTHER NOMINEE HOLDER TO MAKE A DEMAND FOR APPRAISAL OF THOSE SHARES. A PERSON HAVING A BENEFICIAL INTEREST IN SHARES HELD OF RECORD IN THE NAME OF ANOTHER PERSON, SUCH AS A BROKER, BANK OR OTHER NOMINEE, MUST ACT PROMPTLY TO CAUSE THE RECORD HOLDER TO FOLLOW PROPERLY AND IN A TIMELY MANNER THE STEPS NECESSARY TO PERFECT APPRAISAL RIGHTS.
All written demands for appraisal pursuant to Section 262 should be mailed or delivered to MobileIron, Inc., 490 East Middlefield Road, Mountain View, CA, 94043, Attention: Corporate Secretary, and must be delivered before the vote on the merger agreement is taken at the special meeting and should be executed by, or on behalf of, the record holder of the shares of MobileIron common stock.
Any holder of MobileIron common stock may withdraw his, her or its demand for appraisal and accept the consideration offered pursuant to the merger agreement by delivering to MobileIron a written withdrawal of the demand for appraisal within sixty (60) days after the effective date of the merger. However, any such attempt to withdraw the demand made more than sixty (60) days after the effective time will require written approval of the surviving corporation. No appraisal proceeding in the Delaware Court of Chancery will be dismissed without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just.
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Notice by the Surviving Corporation
If the merger is completed, within ten (10) days after the effective time, the surviving corporation will notify each holder of MobileIron common stock who has complied with Section 262, and who has not voted in favor of the proposal to adopt the merger agreement, that the merger has become effective and the effective date thereof.
Filing a Petition for Appraisal
Within one hundred-twenty (120) days after the effective time, but not thereafter, the surviving corporation or any holder of MobileIron common stock who has complied with Section 262 and is entitled to appraisal rights under Section 262 may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery, with a copy served on the surviving corporation in the case of a petition filed by a stockholder, demanding a determination of the fair value of the shares held by all stockholders entitled to appraisal. The surviving corporation is under no obligation to and has no present intention to file a petition, and holders should not assume that the surviving corporation will file a petition or initiate any negotiations with respect to the fair value of shares of MobileIron common stock. Accordingly, any holders of MobileIron common stock who desire to have their shares appraised should initiate all necessary action to perfect their appraisal rights in respect of shares of MobileIron common stock within the time and in the manner prescribed in Section 262. The failure of a holder of MobileIron common stock to file such a petition within the period specified in Section 262 could nullify the stockholder's previous written demand for appraisal.
Within one hundred-twenty (120) days after the effective time, any holder of MobileIron common stock who has complied with the requirements for exercise of appraisal rights will be entitled, upon written request, to receive from the surviving corporation a statement setting forth the aggregate number of shares not voted in favor of the proposal to adopt the merger agreement and with respect to which MobileIron has received demands for appraisal and the aggregate number of holders of such shares. The surviving corporation must mail this statement to the requesting stockholder within ten (10) days after receipt of the written request for such a statement or within ten (10) days after the expiration of the period for delivery of demands for appraisal, whichever is later. A beneficial owner of shares held either in a voting trust or by a nominee on behalf of such person may, in such person's own name, file a petition seeking appraisal or request from the surviving corporation the foregoing statements. As noted above, however, the demand for appraisal can only be made by a stockholder of record.
If a petition for an appraisal is duly filed by a holder of shares of MobileIron common stock and a copy thereof is served upon the surviving corporation, the surviving corporation will then be obligated within twenty (20) days to file with the Delaware Register in Chancery a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom agreements as to the value of their shares have not been reached. After notice to the stockholders as required by the court, the Delaware Court of Chancery is empowered to conduct a hearing on the petition to determine those stockholders who have complied with Section 262 and who have become entitled to appraisal thereunder. The Delaware Court of Chancery may require the stockholders who demanded payment for their shares to submit their stock certificates to the Delaware Register in Chancery for notation thereon of the pendency of the appraisal proceedings, and if any stockholder fails to comply with the direction, the Delaware Court of Chancery may dismiss the proceedings as to such stockholder.
Determination of Fair Value
After determining the holders of MobileIron common stock entitled to appraisal, the Delaware Court of Chancery will appraise the fair value of the shares of MobileIron common stock, exclusive of any element of value arising from the accomplishment or expectation of the merger, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining fair value, the Delaware Court of Chancery will take into account all relevant factors. Unless the court in its discretion determines otherwise for good cause shown, interest from the effective date of the merger through the date of payment of the judgment will be compounded quarterly and will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings, the surviving corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case interest will accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the amount so paid and the fair value of the shares as determined by the Delaware Court of Chancery, and (2) interest theretofore accrued, unless paid at that time. In
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Weinberger v. UOP, Inc. (which we refer to as “Weinberger”), the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “[f]air price obviously requires consideration of all relevant factors involving the value of a company.” The Delaware Supreme Court stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the merger that throw any light on future prospects of the merged corporation. Section 262 provides that fair value is to be “exclusive of any element of value arising from the accomplishment or expectation of the merger.” In Cede & Co. v. Technicolor, Inc., the Delaware Supreme Court stated that such exclusion is a “narrow exclusion [that] does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Supreme Court of Delaware also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the merger and not the product of speculation, may be considered.”
Stockholders considering seeking appraisal should be aware that the fair value of their shares as so determined by the Delaware Court of Chancery could be more than, the same as or less than the consideration they would receive pursuant to the merger if they did not seek appraisal of their shares and that an opinion of an investment banking firm as to the fairness from a financial point of view of the consideration payable in a merger is not an opinion as to, and does not in any manner address, fair value under Section 262. Although MobileIron believes that the merger consideration is fair, no representation is made as to the outcome of the appraisal of fair value as determined by the Delaware Court of Chancery, and stockholders should recognize that such an appraisal could result in a determination of a value higher or lower than, or the same as, the merger consideration. Neither A MobileIron nor Ivanti anticipates offering more than the merger consideration to any stockholder of MobileIron exercising appraisal rights, and each of MobileIron and Ivanti reserves the right to assert, in any appraisal proceeding, that, for purposes of Section 262, the fair value of a share of MobileIron common stock is less than the merger consideration. If a petition for appraisal is not timely filed, then the right to an appraisal will cease. The costs of the appraisal proceedings (which do not include attorneys' fees or the fees and expenses of experts) may be determined by the Delaware Court of Chancery and taxed upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a stockholder, the Delaware Court of Chancery may also order that all or a portion of the expenses incurred by a stockholder in connection with an appraisal, including, without limitation, reasonable attorneys' fees and the fees and expenses of experts, be charged pro rata against the value of all the shares entitled to be appraised.
If any stockholder who demands appraisal of shares of MobileIron common stock under Section 262 fails to perfect, or loses his or her appraisal rights, or successfully withdraws such demand for appraisal, the stockholder's shares of MobileIron common stock will be deemed to have been converted at the effective time into the right to receive the merger consideration applicable to the shares, less applicable withholding taxes. A stockholder will fail to perfect, or lose, his or her appraisal rights, or effectively withdraw a demand for appraisal, if no petition for appraisal is filed within one hundred-twenty (120) days after the effective time or if the stockholder delivers to the surviving corporation a written withdrawal of the holder's demand for appraisal and an acceptance of the merger consideration in accordance with Section 262.
From and after the effective time, no stockholder who has demanded appraisal rights will be entitled to vote MobileIron common stock for any purpose, or to receive payment of dividends or other distributions on the stock, except dividends or other distributions on the holder's shares of MobileIron common stock, if any, payable to stockholders of MobileIron of record as of a time prior to the effective time; provided, however, that, if no petition for an appraisal is filed, or if the stockholder delivers to the surviving corporation a written withdrawal of the demand for an appraisal and an acceptance of the merger, either within sixty (60) days after the effective time or thereafter with the written approval of the surviving corporation, then the right of such stockholder to an appraisal will cease. Once a petition for appraisal is filed with the Delaware Court of Chancery, however, the appraisal proceeding may not be dismissed as to any stockholder of MobileIron without the approval of the Delaware Court of Chancery.
Failure to comply strictly with all of the procedures set forth in Section 262 may result in the loss of a stockholder's statutory appraisal rights. Consequently, any stockholder of MoileIron wishing to exercise appraisal rights is encouraged to consult legal counsel before attempting to exercise those rights.
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THE MERGER AGREEMENT
This section describes certain material terms of the merger agreement. The description of the merger agreement in this section and elsewhere in this proxy statement does not purport to be complete, may not contain all of the information about the merger agreement that is important to you and is qualified in its entirety by reference to the complete text of the merger agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement. This summary does not purport to be complete and may not contain all of the information about the merger agreement that is important to you. We urge you to read the merger agreement carefully and in its entirety because it is the legal document that governs the merger.
Explanatory Note Regarding the Merger Agreement
The merger agreement, a copy of which is attached as Annex A, and this summary of its terms are included in this proxy statement to provide you with information regarding the material terms of the merger agreement. Factual disclosures about MobileIron contained in this proxy statement or in MobileIron’s public reports filed with the SEC may supplement, update or modify the factual disclosures about MobileIron contained in the merger agreement. The representations, warranties and covenants made in the merger agreement by MobileIron, Ivanti and Merger Sub were made solely to the parties to, and solely for the purposes of, the merger agreement and as of specific dates and were qualified and subject to important limitations agreed to by MobileIron, Ivanti and Merger Sub in connection with negotiating the terms of the merger agreement. In particular, in your review of the representations and warranties contained in the merger agreement and described in this summary, it is important to bear in mind that the representations and warranties were negotiated for the principal purposes of establishing the circumstances in which a party to the merger agreement may have the right not to consummate the merger if the representations and warranties of the other party prove to be untrue due to a change in circumstance or otherwise, and allocating risk between the parties to the merger agreement, rather than establishing matters as facts. The representations and warranties may also be subject to a contractual standard of materiality different from those generally applicable to stockholders and reports and documents filed with the SEC and, in some cases, were qualified by matters set forth on the disclosure letter delivered by MobileIron to Ivanti and Merger Sub in connection with the merger agreement (the “disclosure letter”), which disclosures are not reflected in the merger agreement. Moreover, information concerning the subject matter of the representations and warranties may have changed since the date of the merger agreement. Stockholders should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts of MobileIron, Ivanti, Merger Sub or any of their respective subsidiaries or affiliates.
The Merger; Closing and Effective Time of the Merger
The merger agreement provides that, upon the terms and subject to the conditions set forth therein, at the effective time of the merger, Merger Sub will be merged with and into MobileIron, at which time the separate corporate existence of Merger Sub will cease. MobileIron will be the surviving corporation in the merger and continue as a wholly owned subsidiary of Ivanti with all its properties, rights, privileges, immunities, powers and franchises continuing unaffected by the merger, and all debts, liabilities and duties of MobileIron and Merger Sub will become the debts, liabilities and duties of the surviving corporation.
The merger agreement provides that the closing of the merger will take place at (a) 7:00 a.m. (Eastern Time) remotely by exchange of documents and signatures on a date to be agreed upon by Ivanti, Merger Sub and MobileIron that is no later than the second business day after the satisfaction or waiver (to the extent permitted under the merger agreement) of the last to be satisfied or waived of the conditions to closing (other than those conditions that by their terms can only be satisfied or waived at the closing, but subject to the satisfaction or waiver (to the extent permitted under the merger agreement) of such conditions); or (b) such other time, location and date as Ivanti, Merger Sub and MobileIron mutually agree to in writing. The merger agreement provides that if the marketing period for the debt financing has not ended at the time of the satisfaction or waiver of the conditions to closing (other than those conditions that by their terms can only be satisfied or waived at the closing, but subject to the satisfaction or waiver of those conditions at such time), then the closing will instead occur on the date following the satisfaction or waiver of such conditions that is the earlier to occur of (a) any business day as may be specified by Ivanti on no less than two business days’ prior notice to MobileIron and (b) subject to the termination provision as described in the third bullet under the second paragraph in “—Termination,” one business day following the final day of the marketing period for the debt financing. Assuming receipt of required regulatory approvals and timely satisfaction of other closing conditions, including
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the approval by our stockholders of the merger proposal, we currently expect the closing of the merger to occur late in the fourth quarter of 2020 or in the first quarter of 2021. However, closing of the merger is subject to the satisfaction or waiver of the conditions to the completion of the merger, which are described below and include various regulatory clearances and approvals, and it is possible that factors outside the control of MobileIron or Ivanti could delay the closing of the merger, or prevent it from being completed at all.
As defined in the merger agreement and as used in this proxy statement, the “marketing period” means the first period of fifteen consecutive business days (provided that (1) if such period has not ended on or prior to December 18, 2020, then such fifteen business day period shall commence no earlier than January 4, 2021 and (2) such period shall not be required to be consecutive to the extent it would include November 25, 2020 or November 27, 2020 (which dates set forth in this clause (2) shall be excluded for purposes of, but shall not reset, the period)) commencing on the later of (x) the date that Ivanti receives the required financial information and the required financial information is compliant (“required financial information” and “compliant” each as defined in the merger agreement, and such date the “required financial information delivery date”) and (y) the date that the conditions as described in the first and second paragraphs under “—Conditions to the Merger” have been satisfied (other than those conditions that by their terms are to be satisfied at the closing), during which period (a) such information is and remains compliant and (b) nothing has occurred and no condition exists that would cause any of the conditions as described in the first and second paragraphs under “—Conditions to the Merger” to fail to be satisfied (other than those conditions that by their terms are to be satisfied at the closing), assuming that the closing date were to be scheduled for any time during such period (subject to MobileIron’s rights to provide Ivanti with a notice of delivery as further set forth in the merger agreement).
However, (i) the marketing period will not commence if, prior to the completion of such fifteen consecutive business day period (A) the auditor for MobileIron has withdrawn any audit opinion with respect to any audited financial statements contained in the required financial information, in which case the marketing period shall not be deemed to commence unless and until a new unqualified audit opinion is issued by the auditor or another independent public accounting firm reasonably acceptable to Ivanti, (B) the financial statements included in the required financial information that are available to Ivanti on the first day of the marketing period would not be sufficiently current on any day during such period to satisfy the requirements of Rule 3-12 of Regulation S-X under the Securities Act to permit a registration statement of MobileIron using such financial statements to be declared effective by the Securities and Exchange Commission (the “SEC”) on the last day of such period, in which case the marketing period shall not be deemed to commence until the receipt by Ivanti of updated required financial information that would be required under Rule 3-12 of Regulation S-X under the Securities Act to permit a registration statement of MobileIron using such financial statements to be declared effective by the SEC on the last day of such new period, (C) MobileIron, its subsidiaries or any of its or their respective affiliates issues a public statement indicating its intent to, or determine that it is required to, restate any financial statements of the Company included in the required financial information or that any such restatement is under consideration or may be a possibility, in which case the marketing period shall not be deemed to commence unless and until such restatement has been completed and the relevant financial statements included in the required financial information have been amended or MobileIron has announced that it has concluded that no restatement shall be required in accordance with GAAP, and (ii) the marketing period will end on any earlier date prior to the expiration of the fifteen consecutive business day period described above if the debt financing is consummated on such earlier date.
The effective time of the merger will occur upon the later of (a) the date and time of the filing of the certificate of merger with, and acceptance for record by, the Secretary of State of the State of Delaware or (b) such other date and time as may be agreed by Ivanti and MobileIron and specified in the certificate of merger.
Following the effective time of the merger, our common stock will be delisted from the Nasdaq Global Select Market, will be deregistered under the Exchange Act and will cease to be publicly traded and the stockholders of MobileIron immediately prior to the effective time of the merger will cease to be stockholders of MobileIron and will not be stockholders of the surviving corporation.
Directors and Officers; Certificate of Incorporation; Bylaws
At and after the effective time of the merger, the directors of Merger Sub as of immediately prior to the effective time of the merger will be the initial directors of the surviving corporation and the officers of Merger Sub as of immediately prior to the effective time of the merger will be the initial officers of the surviving corporation, in each case, until their respective successors are duly elected or appointed and qualified or until their earlier death,
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resignation or removal in accordance with the certificate of incorporation and the bylaws of the surviving corporation.
The certificate of incorporation of MobileIron as in effect immediately prior to the effective time of the merger will be amended and restated in its entirety at the effective time of the merger to read substantially identically to the certificate of incorporation of Merger Sub as in effect immediately prior to the effective time of the merger (subject to the terms of the merger agreement), and such amended and restated certificate of incorporation will become the certificate of incorporation of the surviving corporation until thereafter amended in accordance with applicable provisions of the DGCL and the applicable provisions of such certificate of incorporation; provided, however, that at the effective time of the merger the certificate of incorporation of the surviving corporation will be amended so that the name of the surviving corporation will be “MobileIron, Inc.”
At the effective time of the merger, the bylaws of Merger Sub, as in effect immediately prior to the effective time of the merger, will become the bylaws of the surviving corporation (subject to the terms of the merger agreement) until thereafter amended in accordance with the applicable provisions of the DGCL, the certificate of incorporation of the surviving corporation and such bylaws.
Treatment of Common Stock, Stock-Based Awards and Performance Awards
Each share of our common stock outstanding immediately prior to the effective time of the merger (other than shares of our common stock (i) held by the Company as treasury stock, (ii) owned by Ivanti or Merger Sub, (iii) owned by any direct or indirect wholly owned subsidiary of Ivanti or Merger Sub or (iv) held by stockholders who have neither voted in favor of the merger proposal nor consented thereto in writing and who have properly and validly exercised their statutory rights of appraisal in respect of such shares of our common stock in accordance with Section 262 (collectively the “excluded shares and dissenting shares”)) will be canceled, extinguished and converted into the right to receive the merger consideration.
Company Options
At the effective time of the merger, each unexpired, unexercised and outstanding Company Option that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such Company Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such vested Company Option.
At the effective time of the merger, each Accelerating Option will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to such Company Option multiplied by (ii) the excess, if any, of $7.05 over the applicable per share exercise price of such Accelerating Option. Such amount will be payable at the same time(s) that the applicable Accelerating Option would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with us, our successors or any of their affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company Option that is not an Accelerating Option and that is unvested immediately prior to the effective time of the merger and each vested Company Option that has an exercise price that is equal to or greater than $7.05 per Company Option will be canceled at the effective time of the merger without payment or consideration (in each case, subject to consummation of the merger).
Treatment of Company RSUs
At the effective time of the merger, each Company RSU that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger of the transactions (and without any additional action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the total number of shares of our common stock subject to the vested Company RSU award multiplied by (ii) $7.05.
At the effective time of the merger, each Accelerating RSU that is outstanding immediately prior to the effective time of the merger or that vests solely as a result of the merger of the transactions (and without any additional
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action by the Company, the Board or a committee thereof), will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such Accelerating RSU multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating RSU would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with MobileIron, its successor or any of its affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company RSU that is not an Accelerating RSU and that is unvested immediately prior to the effective time of the merger will be cancelled at the effective time of the merger without consideration (subject to consummation of the merger).
Treatment of Company PSUs
At the effective time of the merger, each outstanding Company PSU that is vested immediately prior to the effective time of the merger or that vests solely as a result of the merger (and without any additional action by the Company, the Board or a committee thereof) will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to the maximum number of target shares of our common stock subject to such vested Company PSU award multiplied by (ii) $7.05.
At the effective time of the merger, each Accelerating PSU that is outstanding immediately prior to the effective time of the merger will be canceled and automatically converted into the right to receive an amount in cash (without interest thereon and less any required withholding taxes) equal to (i) the number of shares of our common stock subject to such Accelerating PSU award multiplied by (ii) $7.05. Such amount will be payable at the same time(s) that the applicable Accelerating PSU would have vested in accordance with its terms and will remain subject to the holder remaining in continuous service with MobileIron, its successor or any of its affiliates through each such vesting date (provided that any terms and conditions relating to accelerated vesting upon a termination of the holder’s employment in connection with or following the merger will continue to apply).
Each Company PSU that is not an Accelerating PSU and that is unvested immediately prior to the effective time of the merger will be cancelled at the effective time of the merger without consideration (subject to consummation of the merger).
Treatment of Employee Stock Purchase Plan
As soon as practicable following the date of the merger agreement, MobileIron’s Board will adopt resolutions or take other actions as may be required under the ESPP to provide that each individual participating in an offering period in progress will not be permitted to (i) increase his or her payroll contribution rate pursuant to the ESPP from the rate in effect; or (ii) make separate non-payroll contributions to the ESPP (except as may be required by applicable law). The offering period currently in progress under the ESPP will be the final offering period and no individual who is not participating in the ESPP will be allowed to commence participation in the ESPP following the date of the merger agreement. The Board will take all actions necessary to ensure that no new offering period or purchase period will commence after September 26, 2020. Prior to the effective time of the merger, MobileIron will take all action that may be necessary to (i) cause any offering period that would otherwise be outstanding at the effective time of the merger to terminate no later than five days prior to the date on which the effective time of the merger occurs; (ii) make any pro rata adjustments that may be necessary to reflect the shortened offering period, but otherwise treat any shortened offering period as fully effective and completed; and (iii) cause the exercise (as of no later than one business day prior to the date on which the effective time of the merger occurs) of each outstanding purchase right. On such exercise date and according to the terms of the ESPP, MobileIron will apply the funds credited pursuant to the ESPP within each participant’s payroll withholding account to the purchase of whole shares of MobileIron common stock. The ESPP will be terminated as of or immediately prior to the effective time of the merger.
Exchange and Payment Procedures
Prior to the closing, Ivanti has agreed to select a bank or trust company reasonably acceptable to MobileIron to act as payment agent in the merger (the “payment agent”). At or prior to the closing, Ivanti will deposit or cause
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to be deposited with the payment agent cash sufficient to pay the aggregate merger consideration payable to the stockholders.
Promptly, and in any event within three business days following the effective time of the merger, Ivanti and the surviving corporation will cause the payment agent to mail to each holder of record as of immediately prior to the effective time of the merger of (i) certificates representing outstanding shares of our common stock (other than excluded shares and dissenting shares) (the “certificates”), and (ii) uncertificated shares of our common stock (other than excluded shares and dissenting shares) (the “uncertificated shares”) (a) a letter of transmittal that Ivanti and the Company mutually agree to prior to the effective time of the merger; and (b) instructions for use in effecting the surrender of the certificates and uncertificated shares in exchange for the merger consideration payable in respect thereof (which, for the avoidance of doubt shall be without interest and less any withholding taxes required to be withheld).
Upon surrender of certificates for cancellation to the payment agent, together with a duly completed and validly executed letter of transmittal, the holders of such certificates will be entitled to receive in exchange therefor an amount in cash equal to the merger consideration (which, for the avoidance of doubt shall be without interest and less any withholding taxes required to be withheld) multiplied by the aggregate number of shares of our common stock represented by such certificate and each such surrendered certificate will be cancelled. Upon receipt of an “agent’s message” by the payment agent (or such other evidence, if any, of transfer as the payment agent may reasonably request) in the case of a book-entry transfer of uncertificated shares, the holders of such uncertificated shares will be entitled to receive in exchange for their shares an amount in cash equal to the merger consideration (which, for the avoidance of doubt shall be without interest and less any withholding taxes required to be withheld) multiplied by the aggregate number of shares of our common stock represented by such holder’s transferred uncertificated shares and each such surrendered uncertificated share will be cancelled.
If any cash deposited with the payment agent is not distributed to the holders of certificates or uncertificated shares within one year following the effective time of the merger, such cash will be delivered to Ivanti upon demand, and any stockholders of MobileIron who have not complied with the exchange procedures in the merger agreement can thereafter look only to Ivanti, subject to abandoned property, escheat or similar laws, solely as general creditors thereof, for any claim to the merger consideration to which such holders may be entitled.
Ivanti, MobileIron, the surviving corporation, and the payment agent will each be entitled to deduct and withhold any amounts required to be deducted or withheld under applicable tax laws from the amounts that would otherwise become payable under the terms of the merger agreement to any holder of our common stock, Company RSUs, Company PSUs, or Company Options and any such deducted or withheld amounts that are paid to the appropriate taxing authorities will be treated for all purposes of the merger agreement as having been paid to the person to whom such amounts would otherwise have been paid.
Representations and Warranties
Representations and Warranties of MobileIron
We made customary representations and warranties in the merger agreement that are subject, in many cases, to exceptions and qualifications contained in the merger agreement, in the disclosure letter or in certain reports filed with the SEC. These representations and warranties relate to, among other things:
due organization, valid existence, good standing, power and authority to conduct business and delivery of organizational documents with respect to MobileIron and its subsidiaries;
corporate power and authority and approvals relating to the execution, delivery and performance of the merger agreement and the due execution and enforceability of the merger agreement;
the necessary approval of the Board;
the rendering of Barclays’ fairness opinion to the Board;
the inapplicability of anti-takeover statutes to the merger;
the necessary vote of stockholders in connection with the merger agreement;
the absence of any conflict or violation of any organizational documents, or existing material contracts of, or laws applicable to, MobileIron or its subsidiaries, or the resulting creation of any lien upon
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MobileIron assets due to the performance of the covenants and obligations set forth in the merger agreement;
the absence of certain consents, approvals, orders or authorizations of, filing or registrations with, or notifications to any governmental authority in connection with the merger agreement and the performance of the covenants and obligations set forth therein;
MobileIron and its subsidiaries’ capitalization;
MobileIron’s SEC filings and financial statements;
internal controls over financial reporting and the maintenance of disclosure controls and procedures;
MobileIron’s and its subsidiaries’ indebtedness;
the absence of specified undisclosed liabilities;
the absence of certain changes or events, and certain prohibited actions, since July 1, 2020;
certain matters relating to MobileIron’s material contracts;
the absence of notices of termination from material customers;
real property owned, leased or subleased by MobileIron and its subsidiaries;
certain environmental matters relating to MobileIron and its subsidiaries;
certain intellectual property matters relating to MobileIron and its subsidiaries;
certain tax matters relating to MobileIron and its subsidiaries;
certain labor, employment and benefit plans matters relating to MobileIron and its subsidiaries;
MobileIron’s possession of necessary permits;
compliance with applicable laws;
the absence of pending or threatened legal proceedings and orders;
insurance plans maintained and used relating to MobileIron and its subsidiaries;
the absence of certain contracts, transactions, arrangements or understandings between MobileIron or any of its subsidiaries with certain related persons;
payment of fees to brokers in connection with the merger; and
anti-corruption, export controls, international trade and anti-money laundering matters and compliance with various applicable laws including the Foreign Corrupt Practices Act of 1977.
The representations and warranties in the merger agreement of MobileIron will not survive the consummation of the merger.
Company Material Adverse Effect
Many of our representations and warranties are qualified by, among other things, exceptions relating to the absence of a “company material adverse effect,” which means any change, event, effect or circumstance that, individually or taken together with all other effects that have occurred prior to the date of determination of the occurrence of the company material adverse effect, (i) is materially adverse to the business, financial condition or results of operations of MobileIron and its subsidiaries, taken as a whole, or (ii) will prevent or materially impair the consummation by MobileIron of the merger, but excluding, in the case of clause (i) only, any effect arising out of or resulting from the following, by itself or when aggregated, will be deemed to be or constitute a company material adverse effect or will be taken into account when determining whether a company material adverse effect has occurred or may, would or could occur resulting from:
changes in general economic conditions in the United States or any other country or region in the world, or changes in conditions in the global economy generally;
changes in conditions in the financial markets, credit markets or capital markets in the United States or any other country or region in the world, including (a) changes in interest rates or credit ratings in the United States or any other country; or (b) changes in exchange rates for the currencies of any country;
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or (c) any suspension of trading in securities (whether they are equity, debt, derivative, or hybrid securities) generally on any securities exchange or over-the-counter market operating in the United States or any other country or region in the world;
changes in conditions in the industries in which MobileIron and its subsidiaries generally conduct business, including changes in conditions in the software industry;
changes in regulatory, legislative, governmental, political, labor or social conditions in the United States or any other country or region in the world, including matters arising from or relating to the 2020 United States presidential election and the results thereof, or any governmental shutdown;
any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism or military actions (including any escalation or general worsening of any such hostilities, acts of war, sabotage, terrorism or military actions) in the United States or any other country or region in the world;
earthquakes, hurricanes, tsunamis, tornadoes, floods, mudslides, wild fires or other natural disasters, weather conditions, and other force majeure events in the United States or any other country or region in the world;
pandemics (including any escalation or general worsening of such pandemics since March, 2020);
any effect resulting from the announcement of the merger agreement or the pendency of the merger (including the identity of Ivanti or any of its affiliates), including the impact thereof on the relationships, contractual or otherwise, of MobileIron and its subsidiaries with employees, suppliers, customers, partners, vendors or any other third person;
the compliance by any party with the terms of the merger agreement, including any action taken or refrained from being taken pursuant to or in accordance with the merger agreement;
any action taken or refrained from being taken, in each case to which Ivanti has expressly approved, consented to or requested in writing following the date of the merger agreement;
changes or proposed changes in GAAP or other accounting standards or in any applicable laws or regulations (or the enforcement or interpretation of any of the foregoing), including the implementation of any such changes made prior to the date of the merger agreement;
changes in the price or trading volume of the our common stock, in and of itself (it being understood that any cause of such change may be deemed to constitute, in and of itself, a company material adverse effect and may be taken into consideration when determining whether a company material adverse effect has occurred);
any failure, in and of itself, by MobileIron and its subsidiaries to meet (a) any public estimates or expectations of MobileIron’s revenue, earnings or other financial performance or results of operations for any period; or (b) any internal budgets, plans, projections or forecasts of its revenues, earnings or other financial performance or results of operations (it being understood that any cause of any such failure may be deemed to constitute, in and of itself, a company material adverse effect and may be taken into consideration when determining whether a company material adverse effect has occurred);
the availability or cost of equity, debt or other financing to Ivanti or Merger Sub; and
any transaction litigation or other legal proceeding threatened, made or brought by any of the current or former MobileIron stockholders (on their own behalf or on behalf of MobileIron) against MobileIron, any of its executive officers or other employees or any member of the Board arising out of the merger or any transaction contemplated by this merger agreement,
except, with respect to the first, second, third, fourth, fifth, sixth and eleventh bullets above, to the extent that such change, event, effect or circumstance has had a material and disproportionate adverse effect on MobileIron and its subsidiaries relative to other companies of a similar size operating in the industries in which MobileIron and its subsidiaries conduct business, in which case only the incremental disproportionate adverse impact may be taken into account in determining whether a company material adverse effect has occurred.
Representations and Warranties of Ivanti and Merger Sub
The merger agreement also contains customary representations and warranties made by Ivanti and Merger Sub that are subject, in some cases, to specified exceptions and qualifications contained in the merger agreement
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or in the disclosure letter delivered to MobileIron. These representations and warranties relate to, among other things:
Ivanti and Merger Sub’s due organization, valid existence, good standing, requisite power and authority to conduct business, and delivery of organizational documents of Ivanti and Merger Sub;
Ivanti’s and Merger Sub’s power and authority to enter into and perform the merger agreement and the and the due execution and enforceability of the merger agreement;
the absence of any conflict or violation of any organizational documents, existing contracts of or laws applicable to Ivanti and Merger Sub or the resulting creation of any lien upon Ivanti’s or Merger Sub’s assets due to the performance of the covenants and obligations set forth in the merger agreement;
the absence of any acquisition, business combination or similar transaction that Ivanti reasonably believes will materially delay the consummation of the merger;
the absence of certain consents, approvals, orders or authorizations of, filing or registrations with, or notifications to any governmental authority in connection with the merger agreement and the performance of the covenants and obligations set forth therein;
the absence of any pending or threatened legal proceedings (other than any transaction litigation) or orders;
the absence of ownership of shares of MobileIron common stock;
payment of fees to brokers in connection with the merger;
the formation, activities and pre-closing liabilities of Merger Sub;
the absence of any required vote or consent of holders of equity in Ivanti necessary for Ivanti to approve the merger agreement and the merger and that Ivanti’s vote or consent is the only vote or consent necessary for Merger Sub to approve the merger agreement and the merger;
execution, delivery and enforceability of the limited guaranty;
the financing commitments obtained by Ivanti for the transactions contemplated by the merger agreement, including the equity commitment and debt commitment letters, sufficiency of financing and the absence of any exclusive arrangements entered into by Ivanti, Merger Sub, or any of their affiliates;
the absence of shareholder or management arrangements related to the merger; and
the solvency position of the surviving corporation and its subsidiaries after the consummation of the merger.
The representations and warranties in the merger agreement of each of Ivanti and Merger Sub will not survive the consummation of the merger.
Each of MobileIron, Ivanti and Merger Sub has agreed that the representations and warranties set forth in the merger agreement are the exclusive representations and warranties made in connection with the merger agreement and the merger.
Conduct of Our Business Pending the Merger
Under the merger agreement, between the date of the merger agreement and the earlier of the effective time of the merger and the termination of the merger agreement in accordance with its terms, except as (i) expressly contemplated by the merger agreement, (ii) set forth in certain sections of the disclosure letter, (iii) contemplated by the next full paragraph in this summary, (iv) approved by Ivanti (which approval will not be unreasonably withheld, conditioned or delayed), or (v) required by applicable law, MobileIron has agreed that it will use, and will cause its subsidiaries to use, its respective commercially reasonable efforts to:
maintain its existence in good standing pursuant to applicable law;
subject to the restrictions and exceptions in the merger agreement, conduct its business and operations in the ordinary course of business and, to the extent consistent therewith, preserve its business organizations; and
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use its respective commercially reasonable efforts to preserve intact its material assets, properties, contracts and licenses,
provided that MobileIron and its subsidiaries may still take (or refrain from taking) all actions as it determines are necessary or advisable in light of the then-current operating conditions and developments as a result of (a) the COVID-19 outbreak or the U.S. presidential election, and (b) external events outside MobileIron’s control that commence after (or the results of which become known to MobileIron after) the date of the merger agreement (but excluding events primarily related to competitive actions or inactions from competitors in the software industry), in each of clauses (a) and (b) including such events’ impact on economic conditions, credit and debt markets, and actions taken, required or recommended by governmental authorities to be taken (or refrained from being taken) in response thereto.
MobileIron has further agreed that, between the date of the merger agreement and the earlier of the effective time of the merger and the termination of the merger agreement in accordance with its terms, except as (i) set forth in certain sections of the disclosure letter, (ii) approved by Ivanti (which approval will not be unreasonably withheld, conditioned or delayed), (iii) expressly contemplated by the merger agreement, or (iv) required by applicable law, MobileIron will not, and will not permit any of its subsidiaries to:
amend the charter, bylaws or any other similar organizational document;
adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization;
issue, sell, deliver, or agree or commit to issue, sell or deliver any MobileIron securities or cash based on the value of MobileIron securities, subject to certain exceptions with respect to MobileIron equity awards;
directly or indirectly acquire, repurchase or redeem any securities, subject to certain limited exceptions with respect to MobileIron equity awards and transactions between MobileIron and any of its direct or indirect subsidiaries;
adjust, split, combine or reclassify any shares of capital stock, or issue or authorize or propose the issuance of any other any securities of MobileIron or any of its subsidiaries in respect of, in lieu of or in substitution for, shares of capital stock or other equity or voting interests;
declare, set aside, or pay any dividend or other distribution in respect of any shares of capital stock or other equity or voting interest except for cash dividends made by any subsidiary of MobileIron to MobileIron or one of MobileIron’s other subsidiaries;
modify the terms of any shares of its capital stock or other equity or voting interest;
incur, assume or suffer any indebtedness or issue any debt securities, except for trade payables incurred in the ordinary course of business and certain other limited exceptions;
mortgage or pledge any of its and its subsidiaries’ assets, tangible or intangible, or create or suffer to exist any lien thereupon (other than permitted liens), other than in connection with financing transactions permitted by the merger agreement or consented to by Ivanti;
make any loans, advances or capital contributions to, or investments in, any other person, except for (a) extensions of credit to customers in the ordinary course of business; (b) certain advances to directors, officers and other employees for business-related expenses on the conditions set forth in the merger agreement; and (c) loans, advances or capital contributions to, or investments in, direct or indirect wholly-owned subsidiaries of MobileIron;
lease, exclusively license, sell, abandon, transfer, assign, guarantee, or exchange any assets, tangible or intangible (including any MobileIron intellectual property), in each case in excess of $250,000 individually, other than (a) the sale, lease or licensing of products or services of MobileIron or its subsidiaries or other materials embodying MobileIron intellectual property in the ordinary course of business; (b) the assignment or abandonment of immaterial MobileIron intellectual property in connection with the exercise of the reasonable business judgment of MobileIron or its subsidiaries in the ordinary course of business; (c) the abandonment of trade secrets in the ordinary course of business
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consistent with reasonable business practices; and (d) any capital expenditures permitted by the merger agreement (or consented to by Ivanti);
(a) enter into, adopt, amend (including accelerating the vesting, payment or funding or waiving any right of MobileIron or any subsidiary with respect to), modify or terminate any bonus, profit sharing, compensation, commission, severance, termination, option, RSU, appreciation right, PSU, phantom equity, stock equivalent, share purchase agreement, pension, retirement, deferred compensation, employment, severance or other employee plan or employee benefit agreement, trust, plan, fund or other arrangement for the compensation, benefit or welfare of any director, officer or employee of MobileIron or any subsidiary in any manner; (b) materially increase the compensation of, or pay any special bonus or special remuneration to, any director, officer, employee, individual, consultant, former employee, individual independent contractor, or other individual service provider as in effect as of the date of the merger agreement; or (c) enter into any change in control, severance or similar agreement or any retention or similar agreement with any officer, employee, director, individual independent contractor, individual consultant, or other individual service provider of MobileIron, subject to certain exceptions;
settle, release, waive or compromise any pending or threatened material legal proceeding, except for the settlement of any such legal proceeding that is (a) reflected or reserved against in the audited MobileIron balance sheet; (b) for solely monetary payments of no more than $500,000 individually and $1.5 million in the aggregate; or (c) settled in compliance with the merger agreement;
except as required by applicable law or GAAP, (a) revalue in any material respect any of its properties or assets, including writing-off notes or accounts receivable, other than in the ordinary course of business, (b) make any material change in any of its accounting principles or practices;
(a) other than in the ordinary course of business, make or change any material tax election; (b) settle, consent to or compromise any material tax claim or assessment or surrender a right to a material tax refund; (c) consent to any extension or waiver of any limitation period with respect to any material tax claim or assessment; (d) file an amended tax return that could materially increase the taxes payable by MobileIron or any subsidiaries; or (e) enter into a closing agreement with any governmental authority regarding any material tax;
incur or commit to incur any capital expenditures that do not exceed $200,000 individually or $500,000 in the aggregate (or $750,000 in the aggregate if the termination date is extended pursuant to the merger agreement);
enter into, modify, amend or agree to terminate any (a) contract (other than any material contract) that if so entered into, modified, amended or terminated would have a company material adverse effect or (b) material contract except in the ordinary course of business as permitted under the merger agreement;
maintain insurance at less than current levels or otherwise in a manner inconsistent with past practice;
engage in any transaction with, or enter into any agreement, arrangement or understanding with, any affiliate of MobileIron or other person covered by Item 404 of Regulation S-K promulgated by the SEC that would be required to be disclosed pursuant to Item 404 of Regulation S-K;
enter into any collective bargaining agreement or agreement to form a work council or other contract with any labor organization or works council (except to the extent required by applicable law);
other than in the ordinary course of business, grant any material refunds, credits, rebates or other allowances to any end user, customer, reseller or distributor;
effectuate a “plant closing,” “mass layoff” (as defined in the United States Worker Adjustment and Retraining Notification Act (the “WARN”)) or other employee layoff event effecting in whole or in part any site of employment, facility, operating unit or employee;
acquire (by merger, consolidation or acquisition of stock or assets) any other person or any material equity interest or enter into any joint venture, legal partnership (excluding strategic relationships,
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alliances, reseller agreements, and similar commercial relationships) limited liability corporation or similar arrangement with any third person; or
enter into, authorize any of, or agree or commit to enter into a contract to take any of the foregoing actions.
Solicitation of Acquisition Proposals; Board Recommendation Change
As defined in the merger agreement and as used in this proxy statement:
“acceptable confidentiality agreement” means an agreement with MobileIron that is either (i) in effect as of the execution and delivery of the merger agreement; or (ii) executed, delivered and effective after the execution and delivery of the merger agreement, in either case containing provisions that require any counterparty thereto (and any of its affiliates and representatives named therein) that receive material non-public information of or with respect to MobileIron to keep such information confidential; provided, however, that, in the case of clause (ii), the provisions contained therein are no less restrictive in any material respect to such counterparty (and any of its affiliates and representatives named therein) than the terms of the confidentiality agreement between MobileIron and an affiliate of Ivanti, dated July 6, 2020 (together with any and all joinders thereto with additional named parties in such joinders, the “confidentiality agreement”) except with respect to both clause (i) and clause (ii) such confidentiality agreement need not contain any “standstill” or similar provisions or otherwise prohibit the making of any acquisition proposal and that such agreement may permit the counterparty thereto to provide to its potential financing sources and representatives any information provided to such counterparty.
“acquisition proposal” means any offer or proposal (other than an offer or proposal by Ivanti or Merger Sub) to engage in an acquisition transaction (as defined below).
“acquisition transaction” means any transaction or series of related transactions (other than the merger) involving:
any direct or indirect purchase or other acquisition by any person or “group” (as defined pursuant to Section 13(d) of the Exchange Act) of persons, whether from MobileIron or any other person(s), of securities representing (or convertible into) more than 20% of the total outstanding voting power of MobileIron or MobileIron common stock after giving effect to the consummation of such purchase or other acquisition, including pursuant to a tender offer or exchange offer by any person or “group” of persons that, if consummated in accordance with its terms, would result in such person or “group” of persons beneficially owning (or having the right to convert into) more than 20% of the total outstanding voting power of MobileIron or MobileIron common stock after giving effect to the consummation of such tender or exchange offer;
any direct or indirect purchase, license or other acquisition by any person or “group” of persons of assets constituting or accounting for more than 20% of the consolidated assets, revenue or net income of MobileIron or any of its subsidiaries, taken as a whole (measured by the fair market value thereof as of the date of such purchase or acquisition); or
any merger, consolidation, business combination, recapitalization, reorganization, or other transaction involving MobileIron pursuant to which any person or “group” of persons would hold securities representing (or convertible into) more than 20% of the total outstanding voting power of MobileIron or MobileIron common stock (or, in a merger in which MobileIron is a constituent corporation, of the surviving corporation or other surviving person in such transaction) outstanding after giving effect to the consummation of such transaction.
“superior proposal” means any bona fide written acquisition proposal for an acquisition transaction on terms that MobileIron’s Board (or a committee thereof) has determined in good faith (after consultation with its financial advisor and outside legal counsel), taking into account all legal, regulatory and financing aspects of the proposal (including certainty of closing and whether such proposal is subject to a due diligence condition) and the identity of the person making the proposal and other aspects of the acquisition proposal that MobileIron’s Board (or a committee thereof) deems relevant, would be, or is reasonably expected to be, in each case if consummated, more favorable, from a financial point of
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view, to the MobileIron stockholders than the merger and the terms set forth in the merger agreement (taking into account any binding offers to make revisions to the merger agreement (including any price terms) and the other agreements contemplated by the merger agreement made or proposed in writing by Ivanti in accordance with the merger agreement). For purposes of the reference to an “acquisition proposal” in this definition, all references to “20%” in the definition of “acquisition transaction” will be deemed to be references to “50%.”
No Solicitation or Negotiation
Except as permitted by the merger agreement, from and after the date of the merger agreement until the earlier to occur of the termination of the merger agreement and the effective time of the merger, MobileIron has agreed to cease and cause to be terminated any discussions or negotiations with any person and its affiliates, directors, officers, employees, consultants, agents, representatives and advisors (the “representatives”) that would be prohibited by the merger agreement and request the prompt return or destruction of all non-public information concerning MobileIron or its subsidiaries furnished to any such person with whom a confidentiality agreement in contemplation of an acquisition transaction was entered into at any time within the six month period immediately preceding the date of the merger agreement and will (a) cease providing any further information with respect to MobileIron or any acquisition proposal to any such person or its representatives, other than through public disclosures that MobileIron makes in the ordinary course of business; and (b) terminate all access granted to any such person and its representatives to any physical or electronic data room. Except as permitted by the merger agreement, including in connection with a superior proposal, from and after the date of the merger agreement until the earlier to occur of the termination of merger agreement and the effective time of the merger, MobileIron and its subsidiaries will not, and will not instruct, authorize or knowingly permit any of its representatives to, directly or indirectly:
solicit, initiate, propose or induce the making, submission or announcement of, or knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an acquisition proposal;
furnish to any person (other than to Ivanti, Merger Sub or any designees of Ivanti or Merger Sub or any of their representatives) any non-public information relating to MobileIron or any of its subsidiaries or afford to any person access to the business, properties, assets, books, records or other non-public information, or to any personnel, of MobileIron or any of its subsidiaries (other than Ivanti, Merger Sub or any designees of Ivanti or Merger Sub or any of their representatives), in any such case with the intent to induce the making, submission or announcement of, or to knowingly encourage, facilitate or assist, any proposal or inquiry that constitutes, or is reasonably expected to lead to, an acquisition proposal or any inquiries or the making of any proposal that would reasonably be expected to lead to an acquisition proposal;
participate or engage in discussions or negotiations with any person with respect to an acquisition proposal (subject to certain limited exceptions);
approve, endorse or recommend any proposal that constitutes, or is reasonably expected to lead to, an acquisition proposal (subject to certain limited exceptions); or
enter into any letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an acquisition transaction, other than an acceptable confidentiality agreement (we refer to any such letter of intent, memorandum of understanding, merger agreement, acquisition agreement or other contract relating to an acquisition transaction, other than an acceptable confidentiality agreement as an “alternative acquisition agreement”).
From the date of the merger agreement until the earlier to occur of the termination of the merger agreement and the effective time of the merger, MobileIron will not be required to enforce, and will be permitted to waive, any provision of any standstill or confidentiality agreement solely to the extent that such provision prohibits or purports to prohibit a confidential proposal being made to MobileIron’s Board (or any committee thereof).
Board Recommendation Change
As described above, and subject to the provisions described below, the Board has unanimously made the recommendation that the stockholders of MobileIron vote “FOR” the merger proposal. The merger agreement
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provides that (subject to certain exceptions described below) the Board may not take any of the following actions (any such action, a “Board recommendation change”): (i) withhold, withdraw, amend, qualify or modify, or publicly propose to withhold, withdraw, amend, qualify or modify, the Board recommendation in a manner adverse to Ivanti in any material respect, (ii) adopt or approve, endorse, recommend or otherwise declare advisable an acquisition proposal (subject to certain limited exceptions), (iii) if an acquisition proposal has been publicly made, following the written request by Ivanti, fail to publicly reaffirm the Board recommendation within ten business days (or such fewer number of days as remains prior to the special meeting), provided that Ivanti shall not make any such request for reaffirmation less than three business days prior to the special meeting) after a written request from Ivanti to do so, (iv) fail to recommend publicly against a tender offer or exchange offer that, if consummated, would constitute an acquisition transaction within ten business days following the commencement of such tender offer or exchange offer (subject to certain limited exceptions); or (v) fail to include the Board recommendation in this proxy statement.
Notwithstanding the foregoing, and subject to the procedures described below, the Board may effect a Board recommendation change at any time before the requisite stockholder approval is obtained if (i) it is in response to an intervening event, or (ii) MobileIron has received a bona fide written acquisition proposal that the Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a superior proposal, each as further described below.
The Board may effect a Board recommendation change in response to an intervening event (as such term is defined in the merger agreement) only if:
the Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to violate the Board’s fiduciary obligations pursuant to applicable laws;
MobileIron has provided prior written notice to Ivanti at least three business days in advance to the effect that the Board (or a committee thereof) has (i) so determined that an intervening event has occurred and (ii) resolved to effect a Board recommendation change pursuant to the applicable terms of the merger agreement, which notice will specify the intervening event in reasonable detail; and
prior to effecting such Board recommendation change, MobileIron and its representatives, during such three business day period, must have (i) negotiated with Ivanti and its representatives in good faith (to the extent that Ivanti desires to so negotiate and has made its representatives available) to make such adjustments offered by Ivanti to the terms and conditions of the merger agreement so that the Board (or a committee thereof) taking into account any such adjustments (which adjustments, to the extent accepted and executed and delivered by MobileIron, would be binding on Ivanti), no longer determines that the failure to make a Board recommendation change in response to such intervening event would reasonably be expected to violate its fiduciary obligations pursuant to applicable law; and (ii) if Ivanti so requests in a timely fashion, in good faith considered permitting, and to the extent permitted, provide reasonable opportunity for, Ivanti and its representatives to make a presentation to MobileIron’s Board during such three business day period regarding any adjustments to the merger agreement.
Further, the Board may effect a Board recommendation change or authorize MobileIron to terminate the merger agreement to enter into an alternative acquisition agreement providing for an acquisition transaction with respect to, and in response to, a bona fide acquisition proposal that the Board (or a committee thereof) has concluded in good faith (after consultation with its financial advisor and outside legal counsel) is a superior proposal, in each case, only if:
MobileIron’s Board (or a committee thereof) determines in good faith (after consultation with its financial advisor and outside legal counsel) that the failure to do so would reasonably be expected to violate its fiduciary obligations pursuant to applicable law;
MobileIron and its subsidiaries and its representatives have complied in all material respects with their obligations pursuant to the Board recommendation change provisions of the merger agreement relating to such acquisition proposal;
MobileIron has provided prior written notice to Ivanti at least three business days in advance (the “notice period”) to the effect that the Board (or a committee thereof) has (i) received a bona fide
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written acquisition proposal that has not been withdrawn, (ii) concluded in good faith that such acquisition proposal constitutes a superior proposal; and (iii) resolved to effect a Board recommendation change or to terminate the merger agreement pursuant to the applicable provisions of the merger agreement, absent any acceptable revision (which revision, to the extent accepted and executed and delivered by MobileIron, would be binding on Ivanti) to the terms and conditions of the merger agreement, which notice will specify the basis for such Board recommendation change or termination, including the identity of the person or “group” of persons making such acquisition proposal the material terms thereof and copies of the definitive agreement and material ancillary agreements, including written financing commitments, in MobileIron’s possession relating to such acquisition proposal;
prior to effecting such Board recommendation change or termination, MobileIron and its representatives, during the notice period, must have (a) negotiated with Ivanti and its representatives in good faith (to the extent that Ivanti desires to so negotiate and has made its representatives available) to make such adjustments offered by Ivanti to the terms and conditions of the merger agreement so that such acquisition proposal would cease to constitute a superior proposal, (b) if Ivanti so requests in a timely fashion, in good faith considered permitting, and to the extent permitted, provide reasonable opportunity for, Ivanti and its representatives to make a presentation to the Board during the notice period regarding any adjustments to the merger agreement, and (c) after considering any material adjustments to the merger agreement (including a change to the price terms of the merger agreement) and the other agreements contemplated thereby that may be offered by Ivanti (which, to the extent accepted and executed and delivered by MobileIron, would be binding on Ivanti) during the notice period, the Board (or a committee thereof) has reaffirmed the determinations set forth in the merger agreement; provided, however, that in the event of any material revisions to such acquisition proposal (with revisions to economic terms and conditions being deemed material), MobileIron will be required to deliver a new written notice to Ivanti and to comply with the requirements of the merger agreement (other than the presentation to the Board as contemplated by item (b) above) with respect to such new written notice, except that the notice period shall only be two business days with respect thereto; and
in the event of any termination of the merger agreement in order to cause or permit MobileIron and its subsidiaries to enter into an alternative acquisition agreement with respect to such acquisition proposal, MobileIron will have validly terminated the merger agreement in accordance with the merger agreement.
Stockholders Meeting
MobileIron has agreed to take all action necessary in accordance with the DGCL, its organizational and governing documents and the rules of The Nasdaq Global Select Market, to establish a record date (and MobileIron will not change the record date without the prior written consent of Ivanti), duly call, give notice of, and convene and hold a meeting of its stockholders as promptly as reasonably practicable following the mailing of this proxy statement to the stockholders of MobileIron, for the purpose of obtaining the requisite stockholder approval, but MobileIron will not be required to convene and hold the stockholders meeting any time prior to the 20th business day following the mailing of this proxy statement. Unless there has been a Board recommendation change, MobileIron will use its reasonable best efforts to obtain the requisite stockholder approval.
Financing; Cooperation with Debt Financing
Although the obligation of Ivanti and Merger Sub to consummate the merger is not subject to any financing condition (including without limitation, consummation of any debt financing), MobileIron has agreed that, prior to the effective time of the merger, at Ivanti’s sole expense, MobileIron will use its reasonable best efforts to, and use its reasonable best efforts to cause each of its subsidiaries and its and their respective representatives to, provide such cooperation as may be reasonably requested by Ivanti or Merger Sub to assist them in arranging the debt financing, including, but not limited to:
assisting in preparation for and participating (and causing senior management and representatives, with appropriate seniority and expertise, of MobileIron to participate) in a reasonable number of meetings and presentations with actual or prospective lenders, road shows and due diligence sessions, drafting sessions and sessions with rating agencies, and otherwise cooperating with the marketing and due diligence efforts for any of the debt financing as contemplated by the debt commitment letter;
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cooperating reasonably with the financing sources’ due diligence, to the extent reasonably requested;
assisting Ivanti and the financing sources in a commercially reasonable manner with the timely preparation of customary (a) rating agency presentations, bank information memoranda, confidential information memoranda, lender presentations and similar documents required in connection with or proper for the debt financing or customarily used to arrange transactions similar to the debt financing by companies of a comparable size in a comparable industry as MobileIron; and (b) pro forma financial statements and forecasts of financial statements of the surviving corporation for one or more periods following the closing date, in each case based on financial information and data derived from the MobileIron’s historical books and records; provided, however, that no member of MobileIron or any of its subsidiaries will be required to provide any information or assistance with respect to the preparation of pro forma financial statements and forecasts of financing statements relating to (i) the determination of the proposed aggregate amount of the debt financing, the interest rates thereunder or the fees and expenses relating thereto; (ii) the determination of any post-closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma adjustments desired to be incorporated into any information used in connection with the debt financing; or (iii) any financial information related to Ivanti or any of its subsidiaries or any adjustments that are not directly related to the acquisition of MobileIron;
as promptly as reasonably practicable, (a) providing Ivanti and the financing sources (1) all required financial information, (2) the financial information of MobileIron identified in the debt commitment letter as of the date of the merger agreement and (3) other information relating to MobileIron and its subsidiaries (including its operations, financial projections and prospects) as may be reasonably requested by Ivanti and customary to assist in preparation of the offering documents and supplementing such information to the extent any such information contains any material misstatement of fact or omits to state a material fact necessary to make such information not misleading as may be reasonably requested by Ivanti or the financing sources to the extent that such information is of the type and form customarily included in a bank confidential information memorandum in connection with the arrangement of financing similar to the debt financing or in rating agency presentations, lender presentations or other customary marketing materials and (b) informing Ivanti if the chief executive officer, chief financial officer, treasurer or controller of MobileIron will have knowledge of any facts as a result of which a restatement of any financial statements to comply with GAAP would be likely;
assisting in a commercially reasonable manner with the preparation of offering documents;
requesting the independent auditors to cooperate with Ivanti’s reasonable best efforts to obtain customary accountant’s comfort letters (including “negative assurance”) and consents from MobileIron’s independent auditors;
executing and delivering, solely to the extent such execution and delivery would only be effective on or after the closing date, any definitive agreements, pledge and security documents, mortgages, currency or interest hedging arrangements and other definitive financing documents and certificates as may be reasonably requested by Ivanti or the financing sources (including using reasonable best efforts to obtain, to the extent applicable, consents of accountants for use of their reports in any materials relating to the debt financing as reasonably requested by Ivanti), obtaining insurance certificates and endorsements, and facilitating the delivery of all stock and other certificates representing equity interests in MobileIron and its subsidiaries to the extent required, and otherwise reasonably facilitating the pledging of collateral and the granting of security interests, it being understood that such documents will not take effect until the effective time of the merger;
reasonably facilitating the granting of security interests (and perfection thereof) in collateral or the reaffirmation of the pledge of collateral on or after the closing date, and obtaining and delivering any pay-off letters and other cooperation in connection with the repayment or other retirement of existing Indebtedness required to be repaid at the closing and the release and termination of any and all related liens on or prior to the closing date;
providing customary authorization letters, confirmations and undertakings to the financing sources authorizing the distribution of information to prospective lenders or investors and containing a representation to the financing sources that the information pertaining to MobileIron and its subsidiaries
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and based on financial information and data received from MobileIron’s historical books and records contained in the disclosure and marketing materials relating to the debt financing is complete and correct in all material respects and that the public side versions of such documents, if any, do not include material non-public information about MobileIron or its subsidiaries or securities; provided, however, that all such materials have been previously identified to, and provided to, MobileIron;
to the extent any information constituting material non-public information about MobileIron or its subsidiaries or securities (i) is “flash” or “recent development sales” and/or EBITDA information for any completed fiscal quarter or other completed fiscal period or (ii) would otherwise customarily be made public by MobileIron or any of its subsidiaries, if requested by Ivanti, publicly disclosing such information such that such information no longer constitutes material non-public information about MobileIron or its subsidiaries or securities;
ensuring that the debt financing benefits from existing lending relationships of MobileIron and its subsidiaries;
taking all reasonable corporate and other actions, subject to the occurrence of the closing, reasonably requested by Ivanti to permit the consummation of the debt financing (including distributing the proceeds of the debt financing, if any, obtained by any subsidiary of MobileIron to the surviving corporation); and
promptly furnishing (but in no event later than three business days prior to the closing date) Ivanti and the financing sources with all documentation and other information about MobileIron or any of its subsidiaries as is reasonably requested by Ivanti or the financing sources relating to applicable “know your customer” and anti-money laundering rules and regulations, to the extent requested in writing at least ten business days prior to the closing date;
provided, however, that nothing therein shall require MobileIron or any subsidiary to take any action that would be effective prior to the closing, including with respect to any lien on any assets of MobileIron or its subsidiaries in connection with the debt financing.
Notwithstanding the foregoing, neither MobileIron nor any of its subsidiaries, nor, in certain circumstances as specified in the merger agreement, any of their directors, managers, officers or employees, are required to:
pay any commitment or other similar fee or enter into any binding agreement or commitment or incur any other actual or potential liability or obligation in connection with the debt financing (or any alternative debt financing) prior to the closing;
execute or enter into, perform or authorize any agreement with respect to the financing contemplated by the debt commitment letter (other than customary representation letters, authorization letters and undertakings (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the debt financing based on financial information and data derived from MobileIron’s historical books and records)) that is not contingent upon the closing or that would be effective prior to the closing date;
with respect to directors, managers, officers or employees of the Company or its subsidiaries, deliver any certificate or take any other action pursuant to the merger agreement to the extent any such action would reasonably be expected to result in personal liability to such person;
take any action that would reasonably be expected, in the reasonable judgment of MobileIron, to conflict with, or result in any violation or breach of, any applicable laws, any organizational documents of MobileIron or any or any of its subsidiaries, any contract or obligations of confidentiality (not created in contemplation of the merger) binding on MobileIron or any of its subsidiaries;
take any action that would cause any condition to the closing set forth therein to not be satisfied or otherwise cause any breach of the merger agreement;
make any representation, warranties or certifications that, after MobileIron’s use of reasonable best efforts to cause such representation, warranty or certification to be true, it has in its good faith determined that such representation, warranty or certification is not true;
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to become subject to any obligations or liabilities with respect to such agreements or documents prior to the closing other than customary representation letters, authorization letters and undertakings (including with respect to the presence or absence of material non-public information and the accuracy of the information contained in the disclosure and marketing materials related to the debt financing based on financial information and data derived from MobileIron’s historical books and records);
(a) provide access to or disclose information that MobileIron determines would jeopardize any attorney–client privilege or other similar privilege of MobileIron or any of its Subsidiaries or (b) change any fiscal period; or
change any fiscal period.
In addition, (a) no action, liability or obligation of MobileIron or any of its subsidiaries or any of its representatives pursuant to any certificate, agreement, arrangement, document or instrument relating to the debt financing (other than customary representation letters, authorization letters and undertakings) will be effective until the effective time of the merger, and MobileIron or any of its subsidiaries will not be required to take any action pursuant to any certificate, agreement, arrangement, document or instrument (other than customary representation letters, authorization letters and undertakings) that is not contingent on the occurrence of the closing or that must be effective prior to the effective time of the merger; and (b) any bank information memoranda required in relation to the debt financing will contain disclosure reflecting the surviving corporation or its subsidiaries as the obligor. Nothing in the provisions of the merger agreement summarized above will require the Board to approve any financing (including the debt financing) or contracts related thereto, effective prior to the closing date.
Promptly upon request by MobileIron, Ivanti will reimburse MobileIron for any reasonable and documented out of pocket costs and expenses (including attorneys’ fees) incurred by MobileIron or any of its subsidiaries or representatives (if any) in connection with the cooperation of MobileIron, its subsidiaries and its representatives contemplated by the provisions of the merger agreement summarized above.
For more information regarding the financing, please see the section entitled “Proposal 1: Proposal to Adopt the Merger Agreement—Financing” beginning on page 48.
Litigation Relating to the Merger
The merger agreement requires MobileIron to give Ivanti the opportunity to participate in and will consult with Ivanti regarding the defense, settlement or prosecution of any litigation against MobileIron and/or its directors, officers and employees relating to the transactions contemplated by the merger agreement, including the merger (the “transaction litigation”). MobileIron will promptly notify Ivanti of any transaction litigation, and shall keep Ivanti reasonably informed with respect to the status thereof. MobileIron will not offer or enter into a settlement with respect to any such litigation without the prior written consent of Ivanti, such consent not to be unreasonably withheld, conditioned or delayed.
Since the announcement of the merger, two complaints have been filed by and purportedly on behalf of alleged MobileIron stockholders: one in the United States District Court for the District of Delaware, captioned Oliver Watson v. MobileIron, Inc., Tae Hea Nahm, Jessica Denecour, Kenneth Klein, James Tolonen, Simon Biddiscombe, Anjali Joshi and Rishi Bajaj, Case No. 1:20-cv-01418-UNA, filed October 22, 2020, and one in the United States District Court for the Southern District of New York, captioned Quentin S. Nash v. MobileIron, Inc., Simon Biddiscombe, Tae Hea Nahm, Jessica Denecour, Kenneth Klein, James Tolonen, Anjali Joshi and Rishi Bajaj, Case No. 1:20-cv-08767, filed October 21, 2020 (together, the “Actions”). The Actions each name as defendants MobileIron and each of the members of our Board. The Actions allege, among other things, that all defendants violated provisions of the Exchange Act insofar as this proxy statement preliminarily filed by MobileIron on October 14, 2020 allegedly omits material information with respect to the transactions contemplated therein that purportedly renders the preliminary proxy statement false and misleading. The complaints seek, among other things, injunctive relief, rescissory damages, declaratory judgment and an award of plaintiffs’ fees and expenses. The defendants believe the claims asserted in these complaints are without merit and intend to vigorously defend them.
Efforts to Close the Merger; Filings; Other Actions
Each of MobileIron, Ivanti and Merger Sub has agreed to use its reasonable best efforts to take or case to be taken all actions, to do or cause to be done all things, and to assist and cooperate with the other parties in doing
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or causing to be done all things, in each case as are necessary, proper or advisable pursuant to applicable law or otherwise to consummate and make effective, in the most expeditious manner practicable, the merger, including: (i) causing the closing conditions to the merger to be satisfied, (ii) obtaining all consents, waivers, approvals, orders and authorizations from certain specified governmental authorities and making all registrations, declarations and filings with certain specified governmental authorities, in each case that are necessary or advisable to consummate the merger, (iii) obtaining all consents, waivers and approvals and delivering all notifications pursuant to any material contracts in connection with the merger agreement and the consummation of the merger so as to maintain and preserve the benefits to the surviving corporation of such material contracts as of and following the consummation of the merger, (iv) executing and delivering any contracts and other instruments that are reasonably necessary to consummate the merger.
In addition to the foregoing, subject to the terms and conditions of the merger agreement, Ivanti, Merger Sub and MobileIron, have agreed not to take any action, or fail to take any action, that (i) is intended to or has (or would reasonably be expected to have) the effect of preventing or impairing (a) the consummation of the merger (including by delaying consummation of the merger beyond the termination date); or (b) the ability of such party to fully perform its obligations pursuant to the merger agreement or (ii) has or is intended to have the effect of delaying or otherwise adversely affecting the consummation of the merger.
Notwithstanding anything to the contrary set forth in the merger agreement, MobileIron and its subsidiaries will not be required to agree to the payment of a consent fee, “profit sharing” payment or other consideration (including increased or accelerated payments), or the provision of additional security (including a guaranty), in connection with the merger, including in connection with obtaining any consent pursuant to any material contract.
The parties have also agreed to make certain regulatory filings (as described more particularly in the section entitled “Proposal 1: Proposal to Adopt the Merger Agreement——Regulatory Matters” beginning on page 55), including (i) file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form relating to the merger agreement and the merger as required by the HSR Act within five business days following the date of the merger agreement and (ii) promptly file pre-merger or post-merger notification filings, forms and submissions with any governmental authority pursuant to other applicable antitrust laws or investment screening laws in connection with the merger, with Ivanti having primary responsibility for the making of such filings.
Each of Ivanti and MobileIron will use reasonable efforts to (i) cooperate and coordinate (and cause its respective affiliates to cooperate and coordinate) with the other in the making of such filings, (ii) supply the other (or cause the other to be supplied) with any information that may be required in order to make such filings, (iii) supply (or cause the other to be supplied) any additional information that may be required or requested by the FTC, the Antitrust Division of the DOJ or other specified governmental authorities, and (iv) subject to certain exceptions, take all action necessary to (a) cause the expiration or termination of the applicable waiting periods pursuant to the HSR Act and any other antitrust laws or investment screening laws applicable to the merger; and (b) obtain any required consents pursuant to any applicable antitrust laws or investment screening laws, in each case as soon as practicable.
Each of Ivanti, Merger Sub and MobileIron have agreed to promptly inform the other parties of any material communication from any governmental authority regarding the merger in connection with such filings. If any party or affiliate thereof receives, directly or indirectly, a request for additional information or documentary material from any governmental authority (other than with respect to the filing pursuant to the HSR Act), then such party will make (or cause to be made), as soon as reasonably practicable and after consultation with the other parties, an appropriate response in compliance with such request.
Further, during the period from the date of the merger agreement to the effective time of the merger, Ivanti has agreed not to, and not to permit any of its subsidiaries to, consummate, enter into any agreement providing for or announce any acquisition, business combination or similar transaction, in each case that is intended to or has (or would reasonably be expected to have) the effect of preventing the consummation of the merger or delaying consummation of the merger beyond the termination date.
Employee Benefits Matters
Ivanti has agreed that employees of MobileIron and any subsidiary of MobileIron who continue to be employed after the effective time of the merger (which we refer to collectively as the continuing employees) will be provided with compensation, benefits and severance payments that are substantially comparable in the aggregate
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to the compensation, benefits and severance payments provided to such employee immediately prior to the effective time of the merger (other than equity based benefits and individual employment agreements) during the period commencing at the effective time of the merger and ending on the first anniversary of the effective time of the merger (or, if earlier, the termination date of the employee).
From and after the effective time of the merger, Ivanti has agreed to use commercially reasonable efforts to (i) cause each continuing employee to be credited with his or her years of service with MobileIron and its subsidiaries (except to the extent it would result in a duplication of benefits), (ii) cause each continuing employee, to be immediately eligible to participate, without any waiting time, in all Ivanti’s welfare benefit plans to the extent coverage under such plans replaces or is intended to replace coverage under a comparable plan of MobileIron, (iii) for purposes of Ivanti’s medical, dental, pharmaceutical and/or vision benefits, cause all pre-existing condition exclusions and actively-at-work requirements to be waived for each continuing employee and (iv) cause any eligible expenses incurred by any continuing employee under a benefit plan of MobileIron to be taken into account under the corresponding benefit plan of Ivanti for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such persons.
Ivanti has agreed to assume sponsorship of the Company Stock-Settled Bonus Plans and related awards and has agreed to administer the Company Stock-Settled Bonus Plans and awards in accordance with their terms.
Other Covenants and Agreements
The merger agreement contains additional agreements relating to, among other matters, coordination with respect to this proxy statement, litigation relating to the merger, public announcements with respect to the merger, notice of certain events, access to certain information, properties, books and records of MobileIron, and de-listing and deregistration of our common stock.
Conditions to the Merger
The respective obligations of MobileIron, Ivanti and Merger Sub to consummate the merger are subject to the satisfaction or waiver (to the extent permitted by applicable law) prior to the effective time of the merger of the following conditions:
receipt by MobileIron of the requisite stockholder approval at the special meeting;
any waiting periods (and any extensions thereof), applicable to the merger pursuant to the HSR Act will have expired or otherwise been terminated, or all requisite consents pursuant thereto, and pursuant to any other antitrust laws or investment screening laws, will have been obtained; and
no temporary restraining order, preliminary or permanent injunction or other judgment or order issued by any court of competent jurisdiction or other legal or regulatory restraint or prohibition preventing the consummation of the merger will be in effect, and no statute, rule, regulation or order will have been enacted, entered, enforced or deemed applicable to the merger, that in each case prohibits, makes illegal, or enjoins the consummation of the merger.
The obligations of Ivanti and Merger Sub to consummate the merger are subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the effective time of the merger of each of the following further conditions, any of which may be waived exclusively by Ivanti:
the representations and warranties of MobileIron regarding organization and good standing, corporate power and enforceability, the inapplicability of certain takeover statutes, certain aspects of MobileIron’s capitalization, the absence of a company material adverse effect since July 1, 2020, and brokers’ fees that (i) are not qualified by company material adverse effect or other materiality qualifications must be true and correct in all material respects as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), and (ii) that are qualified by company material adverse effect or other materiality qualifications must be true and correct in all respects (without disregarding such company material adverse effect or other materiality qualifications) as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time);
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the representations and warranties of MobileIron relating to certain aspects of MobileIron’s capitalization must true and correct in all respects as of the closing date (in each case (i) without giving effect to any company material adverse effect or other materiality qualification and (ii) other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), except where the failure to be so true and correct in all respects would not reasonably be expected to result in additional cost, expense or liability to MobileIron or Ivanti, individually or in the aggregate, that is more than $435,000;
the other representations and warranties of MobileIron set forth in the merger agreement must be true and correct (without giving effect to any materiality or company material adverse effect qualifications set forth therein) as of the closing date as if made at and as of the closing date (other than such representations and warranties that by their terms address matters only as of another specified time, which must be true only as of such time), except for such failures to be true and correct that would not have a company material adverse effect;
MobileIron must have performed and complied in all material respects with the covenants of the merger agreement required to be performed and complied with by it at or prior to the closing;
the receipt by Ivanti and Merger Sub of a certificate of MobileIron, validly executed for and on behalf of MobileIron and in its name by a duly authorized executive officer thereof, certifying as to the satisfaction of all of the above conditions; and
no company material adverse effect will have occurred after the date of the merger agreement that is continuing.
MobileIron’s obligations to consummate the merger are subject to the satisfaction or waiver (where permissible pursuant to applicable law) prior to the effective time of the merger of each of the following further conditions, any of which may be waived exclusively by MobileIron:
the representations and warranties of Ivanti and Merger Sub set forth in the merger agreement must be true and correct on and as of the closing date with the same force and effect as if made on and as of such date, except for (i) any failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the merger or the ability of Ivanti and Merger Sub to fully perform their respective covenants and obligations pursuant to merger agreement; and (ii) those representations and warranties that address matters only as of a particular date, which representations will have been true and correct as of such particular date, except for any failure to be so true and correct that would not, individually or in the aggregate, prevent or materially delay the consummation of the merger or the ability of Ivanti and Merger Sub to fully perform their respective covenants and obligations pursuant to the merger agreement;
Ivanti and Merger Sub must have performed and complied in all material respects with the covenants of the merger agreement required to be performed and complied with by them at or prior to the closing; and
the receipt by MobileIron of a certificate of Ivanti and Merger Sub, validly executed for and on behalf of Ivanti and Merger Sub and in their respective names by a duly authorized executive officer thereof, certifying as to the satisfaction of all of the above conditions.
Termination
MobileIron and Ivanti may, by mutual written agreement, by determination of their respective boards of directors terminate the merger agreement (whether prior to or after requisite stockholder approval) at any time prior to the effective time of the merger.
The merger agreement may also be terminated at any time prior to the effective time of the merger, as follows: