SC 13D 1 d8426359_13-d.htm

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

 

SCHEDULE 13D

THE SECURITIES EXCHANGE ACT OF 1934

(Amendment No.)*

 

 

Instructure, Inc.
(Name of Issuer)

 

 

Common Stock, par value $0.0001 per share
(Title of Class of Securities)

 

 

45781U103
(CUSIP Number)

 

Rivulet Capital, LLC

55 West 46th Street, Suite 2202

New York, New York 10036

Telephone- 212-756-8680

(Name, Address and Telephone Number of Person Authorized to Receive

Notices and Communications)

 

December 4, 2019
(Date of Event Which Requires Filing of this Statement)

 

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [  ].
 
Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.  See § 240.13d-7 for other parties to whom copies are to be sent.
   
*   The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

 


The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

 
 


CUSIP No.
45781U103    

 

1. NAME OF REPORTING PERSONS  
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)  
     
  Rivulet Capital, LLC  

 

2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
    (a)   [_]
    (b)   [x]

 

3. SEC USE ONLY  
     
     

 

4. SOURCE OF FUNDS  
     
  AF, WC  

 

5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   [_]
     
     

 

6. CITIZENSHIP OR PLACE OF ORGANIZATION  
     
  Delaware  

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
     

 

7. SOLE VOTING POWER  
     
  0  

 

8. SHARED VOTING POWER  
     
  1,964,935  

 

9. SOLE DISPOSITIVE POWER
     
  0  

 

10. SHARES DISPOSITIVE POWER   [_]
     
  1,964,935  

 

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING  
  PERSON  
     
  1,964,935  

 

12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES  
  CERTAIN SHARES*  
     

 

13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)  
     
  5.23%  

 

14. TYPE OF REPORTING PERSON  
     
  IA  
     

 

 
 


CUSIP No.
45781U103    

 

1. NAME OF REPORTING PERSONS  
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)  
     
  Barry Lebovits  

 

2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
    (a)   [_]
    (b)   [x]

 

3. SEC USE ONLY  
     
     

 

4. SOURCE OF FUNDS  
     
  AF, WC  

 

5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   [_]
     
     

 

6. CITIZENSHIP OR PLACE OF ORGANIZATION  
     
  United States of America  

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
     

 

7. SOLE VOTING POWER  
     
  0  

 

8. SHARED VOTING POWER  
     
  1,964,935  

 

9. SOLE DISPOSITIVE POWER
     
  0  

 

10. SHARES DISPOSITIVE POWER   [_]
     
  1,964,935  

 

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING  
  PERSON  
 

 

1,964,935

 

 

12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES  
  CERTAIN SHARES*  
     

 

13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)  
     
  5.23%  

 

14. TYPE OF REPORTING PERSON  
     
  IN, HC  
     

 
 


CUSIP No.
45781U103    

 

1. NAME OF REPORTING PERSONS  
  I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)  
     
  Joshua Kuntz  

 

2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
    (a)   [_]
    (b)   [x]

 

3. SEC USE ONLY  
     
     

 

4. SOURCE OF FUNDS  
     
  AF, WC  

 

5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   [_]
     
     

 

6. CITIZENSHIP OR PLACE OF ORGANIZATION  
     
  United States of America  

 

NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH
     

 

7. SOLE VOTING POWER  
     
  0  

 

8. SHARED VOTING POWER  
     
  1,964,935  

 

9. SOLE DISPOSITIVE POWER
     
  0  

 

10. SHARES DISPOSITIVE POWER   [_]
     
  1,964,935  

 

11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING  
  PERSON  
 

 

1,964,935

 

 

12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES  
  CERTAIN SHARES*  
     

 

13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)  
     
  5.23%  

 

14. TYPE OF REPORTING PERSON  
     
  IN, HC  
     
 
 

CUSIP No. 45781U103    
     

 

Item 1. Security and Issuer.  

 

  This statement on Schedule 13D (the “Schedule 13D”) relates to the Common Stock, par value $0.0001 per share (the “Common Stock”), of Instructure, Inc., a Delaware corporation with its principal executive offices located at 6330 South 3000 East, Suite 700, Salt Lake City, Utah 84121 (the “Issuer”).  
     
     

 

Item 2. Identity and Background.  

 

  (a)-(c), (f)

This Schedule 13D is being filed jointly by (i) Rivulet Capital, LLC, a Delaware limited liability company, (ii) Joshua Kuntz, a United States citizen and (iii) Barry Lebovits, a United States citizen (collectively, the “Reporting Persons”).

 

The principal business address of the Reporting Persons is 55 West 46th Street, Suite 2202, New York New York 10036.

 

Joshua Kuntz and Barry Lebovits are the co-managing members of Rivulet Capital, LLC, an investment management firm.

 

 

  (d)

None of the Reporting Persons has, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).

 

 
  (e) None of the Reporting Persons has, during the last five years, been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, Federal or state securities laws or finding any violation with respect to such laws.  

 

       
     

 

 
 

 

Item 3. Source and Amount of Funds or Other Consideration.  

 

 

The funds for the purchase of the shares beneficially owned by the Reporting Persons came from the working capital of clients of Rivulet Capital, LLC.

 

No borrowed funds were used to purchase the shares of Common Stock, other than any borrowed funds used for working capital purposes (including certain leverage arrangements) in the ordinary course of business.

 

 

Item 4. Purpose of Transaction.  

 

   

The Reporting Persons strongly oppose the proposed going-private transaction pursuant to which Thoma Bravo would acquire the publicly held shares of the Issuer for $47.60 per share.  The Reporting Persons believe the proposed transaction significantly undervalues the Company.

 

Further, the Reporting Persons do not believe it is in the best interest of shareholders (1) to run a rushed, 3-week strategic alternatives process over the Thanksgiving holiday, and (2) to provide for only a 35-day “go shop” period encompassing both the Christmas and New Year’s holidays.  As such, the Reporting Persons are concerned about the governance of the Issuer, potential conflicts of interest, and the circumstances surrounding the announced transaction.  

 

The Reporting Persons intend to vote against the transaction as it stands today.

 

Other than as set forth above, the Reporting Persons currently have no plans or proposals, but reserve the right to effect transactions that would change the number of shares they may be deemed to beneficially own.

 

No Reporting Person has any present plan or proposal which would relate to or would result in any of the matters set forth in subparagraphs (a)- (j) of Item 4 of Schedule 13D except as set forth herein. The Reporting Persons may in the future take one or more of the actions described in subsections (a) through (j) of Item 4 of Schedule 13D and may discuss such actions with the Issuer's management and the Board of Directors, other stockholders of the Issuer, and other interested parties.

 
         
             

 

 
 

 

Item 5. Interest in Securities of the Issuer.  
     

 

 

(a)-(c)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As of the date hereof, Rivulet Capital, LLC, Joshua Kuntz and Barry Lebovits may be deemed to be the beneficial owner of 1,964,935 shares of Common Stock or 5.23% of the shares of the Common Stock of the Issuer based on 37,577,533 shares of Common Stock issued and outstanding as of October 25, 2019 as reported in the Issuer’s 10-Q filed on October 30, 2019.

 

Each of Rivulet Capital, LLC, Joshua Kuntz and Barry Lebovits has the sole power to vote or direct the vote of 0 shares of Common Stock and the shared power to vote or direct the vote of 1,964,935 shares of Common Stock.

 

Each of Rivulet Capital, LLC, Joshua Kuntz and Barry Lebovits has the sole power to dispose or direct the disposition of 0 shares of Common Stock and the shared power to dispose or direct the disposition of 1,964,935 shares of Common Stock.

 

The transactions in the securities of the Issuer in the last 60 days are set forth in Exhibit B.

 

The Reporting Persons specifically disclaim beneficial ownership in the shares of Common Stock reported herein except to the extent of their pecuniary interest therein.

 

 

Item 6. Contracts, Arrangements, Understandings or Relationships with Respect  
  to Securities of the Issuer.  

 

   N/A  
     
     

 


Item 7.
Material to be Filed as Exhibits.  

 

 

An agreement relating to the filing of a joint statement as required by Rule 13d-1(f) under the Securities Exchange Act of 1934 is filed herewith as Exhibit A.

 

Transactions in the Issuer in the last 60 Days is filed herewith as Exhibit B.

 
     
     

 
 

 

SIGNATURE

 

After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

  December 5, 2019
  (Date)

 

    RIVULET CAPITAL, LLC
     
    By: /s/ Barry Lebovits
      Barry Lebovits, Co-Managing Member
     
     
    /s/ Barry Lebovits
    BARRY LEBOVITS
     
    /s/ Joshua Kuntz
    JOSHUA KUNTZ

 

 

 

 

Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations (see 18 U.S.C. 1001).

 

 
 

Exhibit A

 

AGREEMENT

 

The undersigned agree that this Schedule 13D Amendment, dated December 5, 2019, relating to the Common Stock, par value $0.0001 per share of Instructure, Inc. shall be filed on behalf of the undersigned.

 

 

December 5, 2019

-----------------------

(Date)

 

 

    RIVULET CAPITAL, LLC
     
    By: /s/ Barry Lebovits
      Barry Lebovits, Co-Managing Member
     
     
    /s/ Barry Lebovits
    BARRY LEBOVITS
     
    /s/ Joshua Kuntz
    JOSHUA KUNTZ

 

 

 
 

Exhibit B

 

 

TRANSACTIONS IN THE ISSUER BY THE REPORTING PERSONS

DURING THE PAST SIXTY DAYS

 

DATE SECURITY Transaction AMOUNT PRICE
10/1/2019 Common Stock, par value $0.0001 Sell 50 38.588
10/1/2019 Common Stock, par value $0.0001 Buy 5,250 38.567
10/3/2019 Common Stock, par value $0.0001 Buy 35,000 38.5597
10/4/2019 Common Stock, par value $0.0001 Buy 21,548 39.2143
10/8/2019 Common Stock, par value $0.0001 Buy 13,452 40.8422
10/10/2019 Common Stock, par value $0.0001 Buy 35,000 41.7892
10/11/2019 Common Stock, par value $0.0001 Buy 40,000 42.1823
10/16/2019 Common Stock, par value $0.0001 Buy 35,000 41.3705
10/17/2019 Common Stock, par value $0.0001 Buy 35,000 42.3614
10/18/2019 Common Stock, par value $0.0001 Buy 35,000 42.4972
10/23/2019 Common Stock, par value $0.0001 Buy 35,000 42.4391
10/24/2019 Common Stock, par value $0.0001 Buy 35,000 43.7706
10/25/2019 Common Stock, par value $0.0001 Buy 20,000 43.4824
10/29/2019 Common Stock, par value $0.0001 Buy 35,000 43.8666
10/31/2019 Common Stock, par value $0.0001 Buy 22,342 44.0702
11/1/2019 Common Stock, par value $0.0001 Sell 100 46.4973
11/1/2019 Common Stock, par value $0.0001 Buy 13,850 46.6107
12/4/2019 Common Stock, par value $0.0001 Buy 130,403 48.1664