Item 1.01 Entry into a Material Definitive Agreement.
Share Purchase Agreement
On October 12, 2020, Bandwidth Inc. (“Bandwidth”) entered into a Share Purchase Agreement (the “Share Purchase Agreement”) by and among Bandwidth, Voicebox S.à r.l., a private limited liability company (société à responsibilité limitée) incorporated under the laws of Luxembourg (RCS number B198.967) (“Voicebox”), Itay Rosenfeld, Stefaan Konings, Dirk Hermans, Gaetan Brichet and Stichting Administratiekantoor Voice, a foundation (stichting) incorporated under the laws of the Netherlands (“Stichting” and, together with Voicebox, Itay Rosenfeld, Stefaan Konings, Dirk Hermans and Gaetan Brichet, the “Selling Stockholders”) pursuant to which, among other things, Bandwidth will acquire all of the A Ordinary Shares, B Ordinary Shares and C Ordinary Shares of Voice Topco Limited, a private limited liability company incorporated under the laws of England and Wales (No. 9717662) (“Voice Topco”). Voice Topco directly or indirectly holds all of the issued and outstanding shares of Voxbone S.A., a private limited liability company registered under the laws of Belgium (“Voxbone”), which (with its subsidiaries) is the operating subsidiary of Voice Topco. The board of directors of Bandwidth has unanimously approved the Share Purchase Agreement.
Transaction Overview. The Share Purchase Agreement provides that, upon the terms and subject to the conditions set forth in the Share Purchase Agreement, Bandwidth will acquire, from the Selling Stockholders, all of the A Ordinary Shares, B Ordinary Shares and C Ordinary Shares of Voice Topco (the “Share Purchase”) in a transaction valued at €446 million. As consideration for the Share Purchase, Bandwidth will (i) pay the Selling Stockholders approximately $400 million (or approximately €338 million based on prevailing exchange rates at the close of business on October 9, 2020) (subject to customary working capital and certain other adjustments) at the closing of the Share Purchase (the “Closing”) and (ii) issue to the Sellers at the Closing shares of Bandwidth’s Class A common stock, par value $0.001 (“Bandwidth Stock”), with an aggregate value of approximately €108 million (or approximately $128 million) based on prevailing exchange rates at the close of business on October 9, 2020, with the actual number of shares of Bandwidth Stock determined by either the volume weighted average closing price of Bandwidth Stock for the 10 business day period ending one business day prior to the closing or the closing price of Bandwidth Stock on the business day prior to the closing, as elected by Voicebox prior to the closing, in each case in accordance with the terms of the Purchase Agreement.
Conditions to the Share Purchase: The completion of the Share Purchase is subject to customary conditions, including: (a) the absence of any law or order from any court or governmental entity preventing or prohibiting the Share Purchase; (b) subject to certain materiality exceptions, the accuracy of certain representations and warranties of Voice Topco and certain Selling Stockholders contained in the Share Purchase Agreement and the Management Warranty Deed (as defined below), as well as the compliance by each party with the covenants contained in the Share Purchase Agreement; and (c) the receipt by each of Bandwidth and the Selling Stockholders of other customary closing certificates and deliverables.
Covenants, Representations and Warranties and Indemnities. The parties to the Share Purchase Agreement have made to each other certain representations and warranties, and have agreed to certain covenants and agreements, including with respect to the conduct and operation of Voice Topco and Voxbone prior to the Closing and similar matters. The Share Purchase Agreement contemplates that Bandwidth and the Selling Stockholders also will enter into certain ancillary agreements in connection with the Share Purchase.
Although neither the Share Purchase Agreement nor the Management Warranty Deed includes general indemnification provisions in favor of Bandwidth, Bandwidth has obtained a representation and warranty insurance policy that will provide coverage for certain representations and warranties of the Selling Stockholders made pursuant to the Management Warranty Deed, subject to a retention amount, exclusions, policy limits and certain other terms and conditions.
Termination Rights. The Share Purchase Agreement may be terminated in certain circumstances, including, among others, if the transaction does not close by November 2, 2020 (subject to extension in certain circumstances). Additionally, either party may terminate the Share Purchase Agreement upon a breach by the other party of any representation, warranty, covenant or agreement made by such breaching party in the Share Purchase Agreement, such that the conditions related to the representations, warranties, covenants and agreements made by such breaching party would not be satisfied and such breach or condition is not curable or, if curable, is not cured within 10 business days after written notice of such breach or (subject to extension in certain circumstances).
Management Warranty Deed
In connection with the execution and delivery of the Share Purchase Agreement, Bandwidth and certain of the Selling Stockholders (the “Selling Management Stockholders”) entered into a Management Warranty Deed, dated October 12, 2020
(the “Management Warranty Deed”). Subject to the terms and conditions set forth in the Management Warranty Deed, the Selling Management Stockholders represented to Bandwidth the accuracy of certain intellectual property, legal, operational, privacy and security, regulatory, and other matters related to Voxbone’s business.
Registration Rights Agreement
In connection with Closing, Bandwidth and Voicebox are expected to enter into a Registration Rights Agreement (the “Registration Rights Agreement”), pursuant to which Bandwidth is required to file a registration statement (the “Registration Statement”) as soon as reasonably practicable on or following the date of the Closing. Pursuant to the Registration Rights Agreement, until December 10, 2020, Voicebox may, on one occasion, request to sell all or any portion of its Bandwidth Stock in an underwritten offering that is registered pursuant to the Registration Statement.
The foregoing descriptions of the Share Purchase Agreement, the Management Warranty Deed, the Registration Rights Agreement, and the transactions contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Share Purchase Agreement, a copy of which is filed herewith as Exhibit 2.1 and is incorporated herein by reference, the Management Warranty Deed, a copy of which is filed herewith as Exhibit 10.1, and the Registration Rights Agreement, a form of which is filed herewith as Exhibit 10.2.
The Share Purchase Agreement and the Management Warranty Deed each has been included to provide investors and security holders with information regarding its terms. It is not intended to provide any other financial information about Voice Topco, Voxbone, or their respective subsidiaries and affiliates. The representations, warranties and covenants contained in the Share Purchase Agreement and the Management Warranty Deed were made only for purposes of those agreements and as of specific dates, were solely for the benefit of the parties to the Share Purchase Agreement and the Management Warranty Deed, may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Share Purchase Agreement and the Management Warranty Deed instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Bandwidth’s stockholders and other investors are not third-party beneficiaries under the Share Purchase Agreement or the Management Warranty Deed and should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Bandwidth, Voice Topco, Voxbone, or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Share Purchase Agreement and the Management Warranty Deed, which subsequent information may or may not be fully reflected in public disclosures by Bandwidth.