Groupon Inc.

19/11/2024 | Press release | Distributed by Public on 20/11/2024 04:11

Material Agreement Form 8 K

Item 1.01. Entry into a Material Definitive Agreement.
Indenture and Convertible Senior Secured Notes due 2027
On November 19, 2024, Groupon Inc. (the "Company") issued $197,260,00 aggregate principal amount of its 6.25% Convertible Senior Secured Notes due 2027 (the "2027 Notes"), pursuant to an indenture, dated as of November 19, 2024 (the "2027 Notes Indenture"), among the Company, the guarantors named therein and U.S. Bank National Association, as trustee (in such capacity, the "Trustee") and as collateral agent (in such capacity, the "Collateral Agent"), consisting of (i) $176,260,000 aggregate principal amount of 2027 Notes issued in exchange for $176,260,000 aggregate principal amount of the Company's outstanding 1.125% Convertible Senior Notes due 2026 (the "2026 Notes") with a limited number of existing holders of the 2026 Notes who are either "institutional accredited investors" (within the meaning of Rule 501(a)(1), (2), (3) or (7) promulgated under the Securities Act of 1933, as amended (the "Securities Act")) and/or "qualified institutional buyers" (as defined in Rule 144A under the Securities Act) (such existing holders, the "Exchange Participants" and such exchange transactions, collectively, the "Exchange") and (ii) $21.0 million aggregate principal amount of 2027 Notes issued for gross cash proceeds of $20.0 million (representing an issue price of 95%) (the "Subscription" and, together with the Exchange, the "Transactions"). As previously disclosed, the Exchange and Subscription were effected pursuant to privately-negotiated agreements (the "Subscription Agreements" and, together with the Exchange Agreements, the "Agreements") with certain qualified investors who are institutional accredited investors and/or qualified institutional buyers (the "Purchasers").
The 2027 Notes were issued to the Exchange Participants in the Exchange and to the Purchasers in the Subscription in private placements in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act. The Company relied on this exemption from registration based in part on representations made by the Exchange Participants and the Purchasers in the Agreements.
The following is a brief description of the terms of the 2027 Notes and the 2027 Notes Indenture.
The 2027 Notes are senior, secured obligations of the Company, accrue interest at a rate of 6.25% per annum, payable semi-annually in arrears on each March 15 and September 15, commencing March 15, 2025, and will mature on March 15, 2027, unless earlier converted or repurchased. The initial conversion rate is 33.333 shares of the Company's common stock per $1,000 principal amount of 2027 Notes (equivalent to an initial conversion price of approximately $30.00 per share), subject to customary adjustments. If the Company undergoes a fundamental change (as defined in the 2027 Notes Indenture), holders of the 2027 Notes have the right to require the Company to repurchase for cash all or any portion of their 2027 Notes at a fundamental change repurchase price equal to 100% of the principal amount of the 2027 Notes to be repurchased, plus accrued and unpaid interest if any, to, but excluding, the fundamental change repurchase date. In addition, upon the occurrence of a make-whole fundamental change (as defined in the 2027 Notes Indenture), the Company will, in certain circumstances, increase the conversion rate by a number of additional shares for a holder that elects to convert its 2027 Notes in connection with such make-whole fundamental change.
The 2027 Notes are not redeemable by the Company.
If by November 20, 2025, the Company has failed to either (i) pledge all of its equity interests (the "SumUp Equity") in SumUp Holdings, S.a.r.l, a limited liability company incorporated and existing under the laws of Grand Duchy of Luxembourg ("SumUp"), as collateral for the 2027 Notes (the "SumUp Equity Pledge"), (ii) transfer all of the SumUp Equity to a direct wholly owned subsidiary that is a Guarantor (as defined below) and pledge all of its equity interests in said Guarantor (the "SumUp Guarantor") as collateral for the 2027 Notes (the "SumUp Guarantor Equity Pledge"), or (iii) sell at least 66.6% of the SumUp Equity which the Company owns, directly or indirectly, and cause such proceeds to be deposited into an account that is subject to a first priority perfected lien for the benefit of U.S. Bank Trust Company, National Association, as collateral agent, under a deposit account control agreement (the "Equity Sale and Proceeds Collateralization"), the 2027 Notes will accrue additional interest of 2.5% per annum, payable at the same time as the regular interest.
The additional interest will cease to accrue immediately upon the earlier of (i) the Equity Pledge, (ii) the SumUp Guarantor Equity Pledge or (iii) the Equity Sale and Proceeds Collateralization.
Prior to the close of business on the business day immediately preceding December 15, 2026, the 2027 Notes will be convertible only under the following circumstances: (1) during any calendar quarter commencing after the calendar quarter ending on December 31, 2024, and only during such calendar quarter, if the last reported sale price of the Common Stock for at least 20 trading days (whether or not consecutive) in a period of 30 consecutive trading days ending on, and including, the last trading day of the immediately preceding calendar quarter is greater than or equal to 130% of the conversion price on each applicable trading day; (2) during the five business-day period after any five consecutive trading-day period in which the trading price per $1,000 principal amount of 2027 Notes for such trading day was less than 98% of the product of the last reported sale price of the Common Stock and the conversion rate on each such trading day; or (3) upon the occurrence of specified corporate events, including a fundamental change. On or after December 15, 2026, until the close of business on the second scheduled trading day immediately preceding the maturity date, holders of the 2027 Notes may convert all or any portion of their 2027 Notes regardless of the foregoing conditions.
Pursuant to the 2027 Notes Indenture, the Company is entitled to not effect any conversion that will result in any holder thereof, together with any Attribution Parties (as defined in the 2027 Notes Indenture), beneficially owning more than 9.9% of the Company's Common Stock (the "Exchange Cap"), after giving effect to such conversion. The Company's obligation to deliver any shares of Common Stock that will result in any holder thereof to exceed the Exchange Cap (the "Excess Shares") is not extinguished and is suspended until such holder advises the Company in writing that it may receive the Excess Shares without exceeding the Exchange Cap.
The 2027 Notes will be fully and unconditionally guaranteed by certain material wholly owned domestic subsidiaries of the Company (the "Guarantors"), subject to the terms of the 2027 Notes Indenture. The 2027 Notes and related guarantees will be secured on a first-priority basis by liens on substantially all of the assets of the Company and the Guarantors (subject to certain exceptions and permitted liens).
The 2027 Notes Indenture contains customary terms and conditions as well as various affirmative and negative covenants that, among other things, may restrict the ability of the Company and its subsidiaries to incur additional indebtedness, pay dividends, repurchase stock, prepay junior or unsecured indebtedness or make certain investments. In addition the 2027 Notes Indenture contains limitations on the Company's and its subsidiaries' ability to dispose of certain assets, and, in certain circumstances, requires the Company to make an offer to repurchase the 2027 Notes using proceeds from certain asset sales at a price of par plus accrued and unpaid interest, and a premium equal to the lesser of all remaining interest on the 2027 Notes or one year of accrued interest on the 2027 Notes.
The 2027 Notes Indenture contains customary provisions relating to the occurrence of "Events of Default" (as defined in the 2027 Notes Indenture), which include the following: (i) certain payment defaults on the 2027 Notes (which, in the case of a default in the payment of interest on the 2027 Notes, will be subject to a 30-day cure period); (ii) the Company's failure to send certain notices under the 2027 Notes Indenture within specified periods of time; (iii) the Company's failure to comply with certain covenants in the 2027 Notes Indenture relating to the Company's ability to consolidate with or merge with or into, or sell, lease or otherwise transfer, in one transaction or a series of transactions, all or substantially all of the assets of the Company and its subsidiaries, taken as a whole, to another person; (iv) a default by the Company in its other obligations or agreements under the 2027 Notes Indenture or the 2027 Notes if such default is not cured or waived within 60 days after notice is given in accordance with the 2027 Notes Indenture; (v) certain defaults by the Company or any of its significant subsidiaries with respect to indebtedness for borrowed money of at least $35.0 million; (vi) a final judgment for payment of at least $35.0 million in the aggregate rendered against the Company or any significant subsidiary, which judgment is not discharged or stayed within 60 days after (a) the date on which the right to appeal thereof has expired if no such appeal has commenced, or (b) the date on which all rights to appeal have been extinguished; and (vii) certain events of bankruptcy, insolvency and reorganization involving the Company or any of its significant subsidiaries.
The foregoing description is qualified in its entirety by reference to the full and complete terms of the 2027 Notes Indenture and the Form of 6.25% Convertible Senior Notes due 2027, copies of which are attached as Exhibits 4.1 and 4.2, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.
Security Agreement
On November 19, 2024, the Company, the Guarantors that may from time to time be a party thereto and the Collateral Agent entered into a Security Agreement relating to the 2027 Notes (the "Security Agreement").
Pursuant to the Security Agreement, the 2027 Notes will be secured by a first priority security interest in substantially all of the assets of the Company and any Guarantors, subject to certain exceptions and permitted liens.
The description of the Security Agreement is qualified in its entirety by reference to the full and complete terms of the Security Agreement, a copy of which is filed as Exhibit 10.1 hereto and incorporated herein by reference.