Item 1.01
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Entry into a Material Definitive Agreement.
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On March 22, 2021, Digital Turbine, Inc.,
a Delaware corporation (“Digital Turbine”), and Digital Turbine Luxembourg S.à r.l., a private limited company
under the laws of the Grand Duchy of Luxembourg and a subsidiary of Digital Turbine (together, the “Purchaser”), entered
into a Sale and Purchase Agreement (the “Sale and Purchase Agreement”) with Tennor Holding B.V., Advert Finance B.V.,
and Lars Windhorst (collectively, the “Majority Fyber Shareholder”), pursuant to which the Purchaser will acquire all
of the Majority Fyber Shareholder’s shares in Fyber N.V., a public limited liability company registered with the Netherlands
Chamber of Commerce Business Register (“Fyber”), whose ordinary bearer shares with a nominal value of EUR0.10 are admitted
to the regulated market (Prime Standard) on the Frankfurt Stock Exchange. Following the conversion of certain outstanding
convertible bonds issued by Fyber, the Majority Fyber Shareholder is expected to hold and sell to the Purchaser approximately 95%
of the shares in Fyber (the “Majority Fyber Shares”). The remaining approximately 5% of the shares in Fyber (the “Minority
Fyber Shares”) are widely held by other shareholders of Fyber (the “Minority Fyber Shareholders”).
As
contemplated by the Sale and Purchase Agreement, in connection with the acquisition of 100% of the outstanding shares in Fyber,
the Purchaser has agreed to pay aggregate consideration of up to $600,000,000, subject to adjustments for certain items, including,
but not limited to, the repayment of debt, conversion or redemption of bonds, settlement of options, and payment of certain transaction
costs and severance payments, of Fyber (the “Consideration Adjustments”). Following the closing of the transactions
contemplated by the Sale and Purchase Agreement (the “Closing”), the Purchaser will be obliged to conduct a
Tender Offer (as described below) and, in connection with such Tender Offer, will offer to the Minority Fyber Shareholders cash
consideration for the Minority Fyber Shares.
Pursuant
to terms of the Sale and Purchase Agreement, in exchange for the acquisition of the Majority Fyber Shares by the Purchaser, the
Purchaser will (i) pay the Majority Fyber Shareholder, at the Closing, an amount of cash consideration based on $150,000,000,
less the amount of cash consideration to be paid by the Purchaser to the Minority Fyber Shareholders for the Minority Fyber Shares,
and as further adjusted by the Consideration Adjustments; (ii) issue to the Majority Fyber Shareholder, at the Closing, a
certain number of newly issued shares of common stock, par value $0.0001 per share, of Digital Turbine (“Digital Turbine
Common Stock”) equal in value to $400,000,000; and (iii) contingent upon Fyber’s net revenues being equal or higher
than $100,000,000 for the 12-month earn-out period ending on March 31, 2022, as determined in the manner set forth in the
Sale and Purchase Agreement, issue to the Majority Fyber Shareholder, at the end of the earn-out period, a certain number of newly
issued shares of Digital Turbine Common Stock, and under certain circumstances, an amount of cash, which value of such shares and
cash in aggregate should not exceed $50,000,000 (subject to set-off against certain potential indemnification claims against the
Majority Fyber Shareholder).
The Sale and Purchase Agreement contains
customary representations and warranties, covenants, closing conditions, and indemnification provisions. If the Sale and Purchase
Agreement is terminated by the Majority Fyber Shareholder due to the Purchaser’s failure to satisfy certain conditions to
the Closing by May 21, 2021, the Purchaser would be obligated to pay the Majority Fyber Shareholder a break-up fee in the
amount of EUR30,000,000. If the Sale and Purchase Agreement is terminated by the Purchaser due to the Majority Fyber Shareholder’s
failure to satisfy certain conditions to the Closing, subject to certain cure periods, the Majority Fyber Shareholder would be
obligated to pay the Purchaser a break-up fee in the amount of EUR30,000,000.
Pursuant
to certain German law on public takeovers, following the Closing, the Purchaser will
be obliged to make a public tender offer to the Minority Fyber Shareholders (the “Tender Offer”)
to acquire from them the Minority Fyber Shares. The Tender Offer will be subject to certain minimum price rules under
German law. The timing and the conditions of the Tender Offer, including the consideration offered
to the Minority Fyber Shareholders in connection with the Tender Offer, will be subsequently determined by the Purchaser pursuant
to the applicable Dutch and German takeover laws.
The foregoing description of the Sale and
Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the Sale and Purchase Agreement,
a copy of which is filed as Exhibit 10.1 to this Current Report on Form 8-K is incorporated herein by reference.