Sequans Communications SC TO-T/A, filed Jan 5, 2024
Sequans Communications (SQNS)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE TO
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
(Amendment No. 10)
Sequans Communications S.A.
(Name of Subject Company (Issuer))
Renesas Electronics Europe GmbH
a wholly owned subsidiary of
Renesas Electronics Corporation
(Name of Filing Person—Offeror)
American Depositary Shares, each representing four (4) Ordinary Shares, nominal value €0.01 per share
Ordinary Shares, nominal value €0.01 per share
(Title of Class of Securities)
817323207*
(CUSIP Number of Class of Securities)
Takahiro Homma
Renesas Electronics Corporation
3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan
+81-3-6773-3000
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on Behalf of Filing Persons)
Copy to:
Jon A. Olsen
Jean A. Lee
Goodwin Procter LLP
520 Broadway, Suite 500
Santa Monica, CA 90401
(424) 252-6400
| ☐ | Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer. |
Check the appropriate boxes below to designate any transactions to which the statement relates:
| ☒ | third-party tender offer subject to Rule 14d-1. |
| ☐ | issuer tender offer subject to Rule 13e-4. |
| ☒ | going-private transaction subject to Rule 13e-3. |
| ☐ | amendment to Schedule 13D under Rule 13d-2. |
Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐
If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:
| ☐ | Rule 13e-4(i) (Cross-Border Issuer Tender Offer) |
| ☐ | Rule 14d-1(d) (Cross-Border Third-Party Tender Offer) |
| * | This CUSIP number is assigned to the subject company’s American Depositary Shares, each representing four Ordinary Shares. |
Neither the Securities and Exchange Commission (the “SEC”) nor any state securities commission has approved or disapproved of this transaction, passed upon the merits or fairness of this transaction, or passed upon the adequacy or accuracy of the disclosure in this Schedule 13E-3. Any representation to the contrary is a criminal offense.
This Amendment No. 10 (this “Amendment”) amends and supplements the combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO filed by Renesas Electronics Europe GmbH, a German limited liability company (Gesellschaft mit beschränkter Haftung—GmbH) (“Purchaser”), and a direct wholly-owned subsidiary of Renesas Electronics Corporation, a Japanese corporation (“Parent”), with the U.S. Securities and Exchange Commission on September 11, 2023 (as amended and supplemented on October 4, 2023, October 5, 2023, October 20, 2023, November 6, 2023, November 13, 2023, November 20, 2023, December 5, 2023, December 18, 2023, December 19, 2023 and January 5, 2024 and as may be further amended or supplemented from time to time, the “Schedule TO”). The Schedule TO relates to the offer by Purchaser to purchase all of the outstanding ordinary shares, nominal value €0.01 per share (each, an “Ordinary Share,” and collectively, the “Ordinary Shares”), including Ordinary Shares represented by American Depositary Shares (each of which represents four Ordinary Shares) (each, an “ADS,” and collectively, the “ADSs”), and Ordinary Shares issuable upon the exercise of any outstanding options, warrants, convertible securities, restricted share awards or rights to purchase, subscribe for, or be allocated Ordinary Shares (collectively, the “Company Shares”), of Sequans Communications S.A., a société anonyme organized under the laws of France (“Sequans”), for U.S. $0.7575 per Ordinary Share and U.S. $3.03 per ADS (each such amount, the “Offer Price”), in each case, payable net to the seller in cash, without interest, less any withholding taxes that may be applicable, upon the terms and subject to the conditions set forth in the Offer to Purchase attached to the Schedule TO as Exhibit (a)(1)(A) (together with any amendments or supplements thereto, the “Offer to Purchase”) and in the Ordinary Share Acceptance Form (together with any amendments or supplements thereto, the “Ordinary Share Acceptance Form”) and American Depositary Share Letter of Transmittal (together with any amendments or supplements thereto, the “ADS Letter of Transmittal,” and together with the Offer to Purchase, the Ordinary Share Acceptance Form and other related materials, as each may be amended or supplemented from time to time, the “Offer”), copies of which are attached to the Schedule TO as Exhibits (a)(1)(B) and (a)(1)(C), respectively.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.
The Schedule TO is hereby amended and supplemented as follows:
Items 1 through 9, Item 11 and Item 13.
The Offer to Purchase and Items 1 through 9, Item 11 and Item 13 of the Schedule TO, to the extent such Items 1 through 9, Item 11 and Item 13 incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:
| 1. | By adding the following text: |
“On January 5, 2024, Purchaser announced an extension of the Expiration Date until one minute after 11:59 p.m., New York City time, on January 22, 2024, unless further extended or earlier terminated in accordance with the MoU. The Offer was previously scheduled to expire one minute after 11:59 p.m., New York City time on January 5, 2024.
The Tender Agent has advised Purchaser that, as of 6 p.m., New York City time, on January 4, 2024, approximately 116,333,513 Ordinary Shares (including Ordinary Shares represented by ADSs) were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 41.9% of (a) all Ordinary Shares (including Ordinary Shares represented by ADSs and any Unsellable Company Shares) then outstanding plus (b) all Ordinary Shares issuable upon the exercise, conversion or exchange of any options, warrants, convertible notes, restricted share awards, stock appreciation rights, or other rights to acquire Ordinary Shares then outstanding (other than Ordinary Shares issuable pursuant to the Convertible Notes), regardless of whether or not then vested, but, in each case, after giving effect to the cancellation of any options, restricted shares or warrants in the manner set forth in the MoU.
Parent and Purchaser expect that the Offer will be consummated promptly following the Expiration Date (as hereby extended and as may be further extended), subject to the satisfaction or waiver of each of the conditions to the consummation of the Offer set forth in the MoU as of the Expiration Date (as hereby extended and as may be further extended).
The joint press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(K) and is incorporated herein by reference.”
| 2. | The information set forth in the first sentence of the second paragraph on the cover page of the Offer to Purchase is hereby amended and restated in its entirety to read as follows: |
“The Offer is being made pursuant to that certain Memorandum of Understanding, dated as of August 4, 2023, by and between Parent and Sequans (the “Memorandum of Understanding”) as amended by Amendment No. 1 to the Memorandum of Understanding, dated September 2, 2023, Amendment No. 2 to the Memorandum of Understanding, dated December 4, 2023 and Amendment No. 3 to the Memorandum of Understanding, dated January 5, 2024 (as it may be further amended, restated or supplemented from time to time in accordance with its terms, the “MoU”).”
| 3. | The information set forth in the section of the Offer to Purchase entitled “Summary Term Sheet—Transaction Agreement” on page 7 is hereby amended and restated in its entirety to read as follows: |
“The above offer to purchase Company Shares is being made pursuant to that certain Memorandum of Understanding, dated as of August 4, 2023, by and between Renesas Electronics Corporation, a Japanese corporation (“Parent” or “Renesas”), and Sequans (the “Memorandum of Understanding”) as amended by Amendment No. 1 to the Memorandum of Understanding, dated September 2, 2023, Amendment No. 2 to the Memorandum of Understanding, dated December 4, 2023 and Amendment No. 3 to the Memorandum of Understanding, dated January 5, 2024 (as it may be further amended, restated or supplemented from time to time in accordance with its terms, the “MoU”).”
| 4. | The information set forth in the first sentence of the second paragraph under the section of the Offer to Purchase entitled “Introduction” on page 21 is hereby amended and restated in its entirety to read as follows: |
“The Offer is being made pursuant to the Memorandum of Understanding, dated as of August 4, 2023, by and between Parent and Sequans (the “Memorandum of Understanding”), as amended by Amendment No. 1, dated as of September 2, 2023, Amendment No. 2 to the Memorandum of Understanding, dated as of December 4, 2023 and Amendment No. 3 to the Memorandum of Understanding, dated January 5, 2024 (as amended and as it may be further amended, restated or supplemented from time to time in accordance with its terms, the “MoU”).”
| 5. | The information set forth in the section of the Offer to Purchase entitled “Special Factors—Background” is hereby amended and supplemented to add, after the last paragraph in such section on page 34, the following: |
“On December 27, 2023, the Company issued an unsecured subordinated note in the principal amount of $3,000,000 to Renesas America pursuant to a Security Purchase Agreement dated December 27, 2023 (the “December 27 Purchase Agreement”). The Company expects to use the proceeds from the financing transaction for working capital and general corporate purposes. See “Special Factors—Certain Agreements between Parent and its Affiliates and Sequans.”
On December 28, 2023, in connection with the Demerger Agreement and to facilitate the completion of the Demerger, Purchaser and the Company executed the Equity Commitment Letter (as defined in “The Tender Offer—Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations— —The Post-Offer Reorganization—The Demerger”). For a detailed description of the Equity Commitment Letter, see “The Tender Offer— Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations——The Post-Offer Reorganization—The Demerger.
On January 5, 2024, Sequans and Renesas amended the Memorandum of Understanding to (a) further extend the Ruling Date from January 9, 2024 to February 12, 2024, (b) reduce the time period during which Renesas is bound by certain indemnification obligations related to liabilities of Sequans’ and its subsidiaries’ directors and officers as contemplated by the MoU from 6 years to 5 years, and (c) reduce the term of the extension of the directors’ and officers’ liability coverage of the Sequans’ existing directors’ and officers’ insurance policies and its existing fiduciary liability insurance policies from 6 years to 5 years.”
| 6. | The information set forth in the first paragraph under the section of the Offer to Purchase entitled “Special Factors—Memorandum of Understanding; Other Agreements—The Memorandum of Understanding” on page 39 is hereby amended to add the following sentence at the end thereof: |
“On January 5, 2024, the Company and Parent entered into Amendment No. 3 to the Memorandum of Understanding to further extend the Ruling Date from January 9, 2024 to February 12, 2024.”
| 7. | The information set forth in the third paragraph under the section of the Offer to Purchase entitled “Special Factors—Memorandum of Understanding; Other Agreements—The Memorandum of Understanding” on page 39 is hereby amended and restated in its entirety to read as follows: |
“The following is a summary of certain key terms of the MoU. This summary is qualified in its entirety by reference to (i) the Memorandum of Understanding, which was filed by Sequans as Exhibit 99.1 to its Form 6-K filed with the SEC on August 7, 2023, (ii) Amendment No. 1 to the Memorandum of Understanding, which was filed by Sequans as Exhibit (d)(2) to the Schedule 13E-3 filed with the SEC on September 11, 2023, (iii) Amendment No. 2 to the Memorandum of Understanding, which was filed by Parent as Exhibit (d)(14) to the Schedule TO/A filed with the SEC on December 5, 2023 and (iv) Amendment No. 3 to the Memorandum of Understanding, which was filed by Parent as Exhibit (d)(18) to the Schedule TO/A filed with the SEC on January 5, 2024, each of which is incorporated herein by reference. The SEC maintains a website at www.sec.gov that contains the MoU and other information that Parent or the Company have filed electronically with the SEC.”
| 8. | The information set forth in the fifth bullet point under the second paragraph under the section of the Offer to Purchase entitled “Special Factors—Memorandum of Understanding; Other Agreements—The Memorandum of Understanding—Termination” on page 52 is hereby amended and restated in its entirety to read as follows: |
“if on or prior to February 12, 2024 (the “Ruling Date”), Parent has not received a reply from the National Tax Agency of Japan (including its subordinate organizations responsible for ruling requests including the Tokyo Regional Tax Bureau) confirming whether the Merger, the Demerger and the Merger Squeeze Out would trigger taxable gain under Article 66-6 of Act on Special Measures Concerning Taxations of Japan; provided, that the right to terminate shall not be available to either Parent or Sequans if Parent receives confirmation of the tax treatment regarding the Post-Offer Reorganization from Japanese tax authorities following the Ruling Date and neither Parent nor Sequans has already terminated the MoU.”
| 9. | The information set forth in the section of the Offer to Purchase entitled “Special Factors—Certain Agreements between Parent and its Affiliates and Sequans” is hereby amended and supplemented to add, at the end of such section on page 57, the following: |
“Equity Commitment Letter
On December 28, 2023, in connection with the Demerger Agreement and to facilitate the completion of the Demerger, Purchaser and the Company executed the Equity Commitment Letter. For a detailed description of the Equity Commitment Letter, see “The Tender Offer—Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations—The Post-Offer Reorganization—The Demerger.”
| 10. | The information set forth in the section of the Offer to Purchase entitled “Special Factors—Certain Agreements between Parent and its Affiliates and Sequans” is hereby amended and supplemented to add, after the last paragraph in such section on page 57, the following: |
“Additional Financing Arrangement
On December 27, 2023, Sequans entered into the December 27 Purchase Agreement with Renesas America, pursuant to which Sequans issued an unsecured subordinated note in the principal amount of $3,000,000 (the “December Note”) to Renesas America for a purchase price of $3,000,000. The December Note will mature on the earliest to occur of (a) the written demand by Renesas America after the successful consummation of the Offer, (b) ninety (90) days after the earliest to occur of (i) the termination of the Offer (otherwise than by reason of successful completion thereof) or (ii) the termination of the MoU, or (c) the date a Company Termination Fee (as defined in the MoU) is payable. Interest on the December Note accrues at a rate of 9.5% per annum. Pursuant to the December 27 Purchase Agreement and the December Note, Sequans will be required to pay Renesas America 10% of the original principal amount of the December Note in addition to any outstanding principal amount and any accrued and unpaid interest upon termination of the MoU under certain circumstances. The December 27 Purchase Agreement contains customary representations and warranties of Sequans. The December Note contains customary covenants and is subject to customary events of default.
The foregoing summaries of the December 27 Purchase Agreement and the December Note do not purport to be complete and are qualified in their entirety by reference to the December 27 Purchase Agreement and the December Note, copies of which are filed as Exhibits (d)(15) and (d)(16) to the Schedule TO and incorporated by reference herein.”
| 11. | The information set forth in the first paragraph of the section of the Offer to Purchase entitled “The Tender Offer—Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations—The Post-Offer Reorganization—The Demerger” on page 79 is hereby amended and restated in its entirety to read as follows: |
“Following and subject to the consummation of the Offer, and subject to Parent electing, in its sole discretion, to not effect the Post-Offer Reorganization, Sequans intends to transfer all of its assets and liabilities to Sequans Communications SAS, a société par actions simplifiée organized under the laws of France, whose registered office is located at 15-55 Boulevard Charles de Gaulle, Les Portes de la Défense – 92700 Colombes (France), identified under the number 979 284 114 RCS Nanterre, and wholly owned by Sequans (“Sequans SAS”), in accordance with a contribution agreement, dated December 28, 2023, under the demerger regime (apport partiel d’actif soumis au régime juridique des scissions) in accordance with French law (the “Demerger Agreement” and such transaction, the “Demerger”), in exchange for new ordinary shares of Sequans SAS. In connection with the Demerger, Sequans will file a tax request for a ruling in accordance with article 209 II of the French tax code in order to obtain the transfer to Sequans SAS of Sequans’ available carried-forward tax losses (including carried forward non-deductible interest).”
| 12. | The information set forth in the section of the Offer to Purchase entitled “The Tender Offer—Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations—The Post-Offer Reorganization—The Demerger” is hereby amended and supplemented to add, after the last paragraph in such section on page 80, the following: |
“In connection with the Demerger Agreement and to facilitate the completion of the Demerger, on December 28, 2023, Purchaser and Sequans entered into an equity commitment letter (the “Equity Commitment Letter”), pursuant to which Purchaser undertakes to subscribe, directly or through its affiliates, to a share capital increase of Sequans in cash or by offsetting the corresponding amount against receivables that Purchaser or any of its affiliates holds against Sequans following the consummation of the Offer and subject to the completion of the Offer and prior to the completion of the Demerger, at the Offer Price and for an amount necessary to restore the Company’s net assets position (situation nette) immediately prior to the completion of the Demerger to a positive net assets position of €2,000,000. The foregoing summary of the Equity Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the Equity Commitment Letter, a copy of which is filed as Exhibit (d)(17) to the Schedule TO and incorporated by reference herein.”
| 13. | The information set forth in the first paragraph of the section of the Offer to Purchase entitled “The Tender Offer—Possible Effects of the Offer on the Market for ADSs; NYSE Listing; Exchange Act Registration; Termination of the ADS Deposit Agreement; The Post-Offer Reorganization; Margin Regulations --The Post-Offer Reorganization—The Merger” on page 80 is hereby amended and restated in its entirety to read as follows: |
“Following and subject to the consummation of the Demerger, and subject to Parent electing, in its sole discretion, to not effect the Post-Offer Reorganization, a cross-border merger will be effectuated of Sequans into Renesas Sting Merger AG (formerly known as Skylinehöhe 105. V V AG), a German stock corporation (Aktiengesellschaft) organized under the laws of Germany, registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Düsseldorf under number HRB 102753 (“German Merger Sub”), that is a direct, wholly owned subsidiary of Purchaser, pursuant to a joint cross-border merger plan, dated December 28, 2023 (the “Merger Plan”), in accordance with Sections 305 et seqq. of the German Companies Transformation Act (Umwandlungsgesetz) and Articles L. 236-1 et seq.
and L. 236-31 et seq. of the French Commercial Code, entered into between Sequans and German Merger Sub. German Merger Sub will survive the merger contemplated by the Merger Plan (the “Merger”) and as a result of such Merger, the Ordinary Shares outstanding immediately prior to the consummation of the Merger (other than any Ordinary Shares held by Sequans as treasury shares) will be exchanged into duly authorized, validly issued and fully paid shares of German Merger Sub at a merger exchange ratio of 3:2 (the “Merger Exchange Ratio”).
Sequans shareholders who hold Ordinary Shares that are not exchangeable into whole shares of German Merger Sub based on the Merger Exchange Ratio will receive cash (bare Zuzahlung) in lieu of any fractional shares of German Merger Sub (such Ordinary Shares that will be converted into the right to receive cash in lieu of shares of German Merger Sub, the “Cash Settled Shares”). Each Cash Settled Share will be converted into the right to receive the Offer Price, payable in cash in euros at an U.S. dollar-euro exchange rate of 0.9038 (such amount, the “Cash Settlement Amount”), provided that holders of Cash Settled Shares may elect to receive the Cash Settlement Amount in U.S. dollars in lieu of euros. Notwithstanding to the foregoing, holders of Unsellable Company Shares may elect to waive, at their sole discretion, the right to receive the Cash Settlement Amount for their Cash Settled Shares.”
Item 12. Exhibits.
Item 12 is hereby amended and supplemented by adding the following exhibits:
| Index No. |
||
| (a)(5)(K) | Joint Press Release issued by Parent and Sequans on January 5, 2024 announcing the extension of the Offer. | |
| (d)(15) | Security Purchase Agreement, dated December 27, 2023, by and between Sequans and Renesas America attached as Exhibit 4.1 to the Form 6-K filed by Sequans with the Securities and Exchange Commission on January 5, 2024 (incorporated by reference herein). | |
| (d)(16) | Note issued by Sequans dated December 27, 2023 attached as Exhibit 4.2 to the Form 6-K filed by Sequans with the Securities and Exchange Commission on January 5, 2024 (incorporated by reference herein). | |
| (d)(17) | Equity Commitment Letter, dated December 28, 2023, by and between Purchaser and Sequans. | |
| (d)(18) | Amendment No. 3 to the Memorandum of Understanding, dated as of January 5, 2024, by and between Parent and Sequans. | |
SIGNATURE
After due 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.
Dated: January 5, 2024
| RENESAS ELECTRONICS EUROPE GmbH | ||
| By: | /s/ Carsten Jauch | |
| Name: | Carsten Jauch | |
| Title: | Managing Director | |
| RENESAS ELECTRONICS CORPORATION | ||
| By: | /s/ Shuhei Shinkai | |
| Name: | Shuhei Shinkai | |
| Title: | Senior Vice President and CFO | |
Exhibit (a)(5)(K)
|
|
Renesas Extends Tender Offer for Proposed Acquisition of Sequans
Shareholders to Receive U.S. $0.7575 per Ordinary Share and U.S. $3.03 per ADS in cash
TOKYO, Japan and PARIS, France – January 5, 2024 – Renesas Electronics Corporation (TSE: 6723, “Renesas”) and Sequans Communications S.A. (NYSE: SQNS, “Sequans”) today announced that Renesas has extended the expiration date of its tender offer to acquire all of the outstanding ordinary shares of Sequans for $0.7575 per ordinary share and American Depositary Shares (“ADSs”) of Sequans for $3.03 per ADS (each ADS representing four ordinary shares) in cash, without interest and less any applicable withholding taxes.
The tender offer, which was previously scheduled to expire at one minute after 11:59 P.M., New York City time, on January 5, 2024, has been extended until one minute after 11:59 P.M., New York City time, on January 22, 2024, unless the tender offer is further extended or earlier terminated. The tender offer was extended to allow additional time for the satisfaction of the remaining closing conditions of the tender offer, including, but not limited to, regulatory approvals (other than the previously announced CFIUS approval, NSIA approval and Taiwan merger control approval) and the valid tender of ordinary shares and ADSs of Sequans representing – together with ordinary shares and ADSs of Sequans beneficially owned by Renesas, if any – at least 90% of the fully diluted ordinary shares of Sequans.
The Bank of New York Mellon, the Tender Agent for the tender offer, has advised Renesas that as of 6 p.m., New York City time, on January 4, 2024, approximately 116,333,513 ordinary shares of Sequans (including ordinary shares represented by ADSs), representing approximately 41.9% of the fully diluted ordinary shares of Sequans, have been validly tendered and not properly withdrawn pursuant to the tender offer. Holders that have previously tendered their shares do not need to re-tender their shares or take any other action in response to this extension.
The tender offer is being made pursuant to the Offer to Purchase, dated September 11, 2023 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), the related Ordinary Share Acceptance Form, ADS Letter of Transmittal and certain other offer documents (together with any amendments or supplements thereto), copies of which are attached to the combined Tender Offer Statement and Rule 13e-3 Transaction Statement filed under cover of Schedule TO by Renesas and Renesas Electronics Europe GmbH with the U.S. Securities and Exchange Commission (the “SEC”) on September 11, 2023, as amended.
About Renesas Electronics Corporation
Renesas Electronics Corporation (TSE: 6723) empowers a safer, smarter and more sustainable future where technology helps make our lives easier. The leading global provider of microcontrollers, Renesas combines our expertise in embedded processing, analog, power and connectivity to deliver complete semiconductor solutions. These Winning Combinations accelerate time to market for automotive, industrial, infrastructure and IoT applications, enabling billions of connected, intelligent devices that enhance the way people work and live. Learn more at renesas.com. Follow us on LinkedIn, Facebook, X, YouTube and Instagram.
About Sequans Communications
Sequans Communications S.A. (NYSE: SQNS) is a leading developer and supplier of cellular IoT connectivity solutions, providing chips and modules for 5G/4G massive and broadband IoT. For 5G/4G massive IoT applications, Sequans provides a comprehensive product portfolio based on its flagship Monarch LTE-M/NB-IoT and Calliope Cat 1 chip platforms, featuring industry-leading low power consumption, a large set of integrated functionalities, and global deployment capability. For 5G/4G broadband IoT applications, Sequans offers a product portfolio based
on its Cassiopeia Cat 4/Cat 6 4G and high-end Taurus 5G chip platforms, optimized for low-cost residential, enterprise, and industrial applications. Founded in 2003, Sequans is based in Paris, France with additional offices in the United States, United Kingdom, Israel, Hong Kong, Singapore, Finland, Taiwan, South Korea, and China. Visit Sequans online at http://www.sequans.com/, and follow us on Facebook, X and LinkedIn.
Advisors
BofA Securities is serving as financial advisor to Renesas, and Goodwin Procter LLP is serving as legal counsel. Needham & Company is serving as financial advisor to Sequans, and Orrick, Herrington & Sutcliffe LLP is serving as legal counsel.
Important Additional Information and Where to Find It
In connection with the proposed acquisition of Sequans Communications S.A. (“Sequans”) by Renesas Electronics Corporation, a Japanese corporation (“Parent” or “Renesas”), Parent commenced a tender offer for all of the outstanding ordinary shares, including American Depositary Shares of Sequans, on September 11, 2023. This communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell securities of Sequans. It is also not a substitute for the tender offer materials that Parent and Renesas Electronics Europe GmbH, a direct wholly owned subsidiary of Parent (“Purchaser”) filed with the SEC or the solicitation/recommendation statement that Sequans filed on Schedule 14D-9 with the SEC upon commencement of the tender offer. Purchaser filed tender offer materials on Schedule TO with the SEC, and Sequans filed a solicitation/recommendation statement on Schedule 14D-9 and a transaction statement on Schedule 13E-3 with respect to the tender offer with the SEC. THE TENDER OFFER MATERIALS (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF TRANSMITTAL AND CERTAIN OTHER TENDER OFFER DOCUMENTS), THE SOLICITATION/RECOMMENDATION STATEMENT AND TRANSACTION STATEMENT CONTAIN IMPORTANT INFORMATION THAT SHOULD BE READ CAREFULLY AND BE CONSIDERED BY SEQUANS’ SECURITYHOLDERS BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER. Both the tender offer materials and the solicitation/recommendation statement and transaction statement will be made available to Sequans’ investors and security holders free of charge. A free copy of the tender offer materials and the solicitation/recommendation statement and transaction statement will also be made available to all of Sequans’ investors and security holders by contacting Sequans at ir@sequans.com, or by visiting Sequans’ website (www.sequans.com). In addition, the tender offer materials and the solicitation/recommendation statement (and all other documents filed by Sequans with the SEC) are available at no charge on the SEC’s website (www.sec.gov) upon filing with the SEC. SEQUANS’ INVESTORS AND SECURITY HOLDERS ARE ADVISED TO READ THE TENDER OFFER MATERIALS, THE SOLICITATION/RECOMMENDATION STATEMENT AND THE TRANSACTION STATEMENT, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED BY PARENT OR SEQUANS WITH THE SEC WHEN THEY BECOME AVAILABLE BEFORE THEY MAKE ANY DECISION WITH RESPECT TO THE TENDER OFFER. THESE MATERIALS CONTAIN IMPORTANT INFORMATION ABOUT THE TENDER OFFER, PARENT AND SEQUANS.
Cautionary note regarding forward-looking statements
This announcement may contain certain statements that are, or may be deemed to be, forward-looking statements with respect to the financial condition, results of operations and business of Renesas and/or Sequans and/or the combined group following completion of the transaction and certain plans and objectives of Renesas with respect thereto. These forward-looking statements include, but are not limited to, statements regarding the satisfaction of conditions to the completion of the proposed transaction and the expected completion of the proposed transaction, the timing and benefits thereof, as well as other statements that are not historical fact. These forward-looking statements can be identified by the fact that they do not relate to historical or current facts. Forward-looking statements also often use words such as “anticipate,” “target,” ”continue,” “estimate,” “expect,” ‘‘forecast,” “intend,” “may,” “plan,” “goal,” “believe,” “hope,” “aims,” “continue,” “could,” “project,” “should,” “will” or other words of similar meaning. These statements are based on assumptions and assessments made by Renesas and/or Sequans (as applicable) in light of their experience and perception of historical trends, current conditions, future developments and other factors they believe appropriate. By their nature, forward-looking statements involve risk
and uncertainty, because they relate to events and depend on circumstances that will occur in the future and the factors described in the context of such forward-looking statements in this announcement could cause actual results and developments to differ materially from those expressed in or implied by such forward-looking statements. Although it is believed that the expectations reflected in such forward-looking statements are reasonable, no assurance can be given that such expectations will prove to be correct and you are therefore cautioned not to place undue reliance on these forward-looking statements which speak only as at the date of this announcement.
Forward-looking statements are not guarantees of future performance. Such forward-looking statements involve known and unknown risks and uncertainties that could significantly affect expected results and are based on certain key assumptions. Such risks and uncertainties include, but are not limited to, the potential failure to satisfy conditions to the completion of the proposed transaction due to the failure to receive a sufficient number of tendered shares in the tender offer; the failure to obtain necessary regulatory or other approvals; the outcome of legal proceedings that may be instituted against Sequans and/or others relating to the transaction; the possibility that competing offers will be made; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the proposed transaction; significant or unexpected costs, charges or expenses resulting from the proposed transaction; and negative effects of this announcement or the consummation of the proposed acquisition on the market price of Sequans’ ADS and ordinary shares. Many factors could cause actual results to differ materially from those projected or implied in any forward-looking statements. Among the factors that could cause actual results to differ materially from those described in the forward-looking statements are changes in the global, political, economic, business and competitive environments, market and regulatory forces, future exchange and interest rates, changes in tax rates and future business combinations or dispositions. If any one or more of these risks or uncertainties materializes or if any one or more of the assumptions prove incorrect, actual results may differ materially from those expected, estimated or projected. Such forward looking statements should therefore be construed in the light of such factors. A more complete description of these and other material risks can be found in Sequans’ filings with the SEC, including its annual report on Form 20-F for the year ended December 31, 2022, subsequent filings on Form 6-K and other documents that may be filed from time to time with the SEC, as well as the Schedule TO and related tender offer documents filed by Parent and Purchaser and the Schedule 14D-9 and Schedule 13E-3 filed by Sequans. Due to such uncertainties and risks, readers are cautioned not to place undue reliance on such forward-looking statements, which speak only as of the date of this announcement. Neither Renesas nor Sequans undertakes any obligation to update or revise any forward-looking statement as a result of new information, future events or otherwise, except as required by applicable law.
No member of the Renesas group or the Sequans group nor any of their respective associates, directors, officers, employers or advisers, provides any representation, assurance or guarantee that the occurrence of the events expressed or implied in any forward-looking statements in this announcement will actually occur.
Except as expressly provided in this announcement, no forward-looking or other statements have been reviewed by the auditors of the Renesas group or the Sequans group. All subsequent oral or written forward-looking statements attributable to any member of the Renesas group or the Sequans group, or any of their respective associates, directors, officers, employers or advisers, are expressly qualified in their entirety by the cautionary statement above.
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All names of products or services mentioned in this press release are trademarks or registered trademarks of their respective owners.
| Media Contacts:
Renesas Electronics Corporation Akiko Ishiyama + 1-408-887-9006 pr@renesas.com
Sequans Communications S.A. Kimberly Tassin +1-425-736-0569 Kimberly@Sequans.com |
Investor Relations Contacts:
Renesas Electronics Corporation Yuma Nakanishi +81 3-6773-3002 ir@renesas.com
Sequans Communications S.A. Kim Rogers +1-541-904-5075 Kim@HaydenIR.com |
Exhibit (d)(17)
Renesas Electronics Europe GmbH
a limited liability company under the Laws of Germany (Gesellschaft mit beschränkter Haftung—GmbH)
Arcadiastrasse 10 – 40472 Düsseldorf, Germany,
registered with the German trade register under number HRB 3708
(the “Purchaser”)
| Attn: | Sequans Communications SA | |
| Les Portes de la Défense 15-55 boulevard Charles de Gaulle 92700 Colombes | ||
| France | ||
| (the “Company”) |
Project Sting – Commitment Letter
Strictly confidential
December 28, 2023.
Dear M. Karam,
Reference is made to the memorandum of understanding of August 4, 2023 (as amended from time to time in accordance with its terms, the “MoU”) entered into between the Company and Renesas Electronics Corporation, a Japanese corporation, with its registered office at 3-2-24 Toyosu, Koto-ku, Tokyo 135-0061, Japan, registered under number 0200-01-075701 (the “Parent”), under which Parent undertakes, through a tender offer governed by the laws of the United States of America and initiated by Purchaser, to purchase with cash, subject to certain conditions set forth in the MoU, all outstanding Company Shares and ADSs issued by the Company for USD 0.7575 per Company Share and USD 3.03 per ADS (the “Offer”).
Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the MoU and the Demerger Agreement.
| 1. | We, Renesas Electronics Europe GmbH, the Purchaser, hereby undertake to, subject to the terms and conditions of this letter, make a contribution to the Company, directly or through Affiliates, and at the latest on the date of completion of the Demerger and immediately prior to the completion of the Demerger, by any means whatsoever, and in particular through: |
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| a. | the subscription(s) to one or more issuances of securities giving access directly to the share capital of the Company, in cash; |
| b. | the subscription(s) to one or more issuances of securities giving access directly to the share capital of the Company, by offsetting the corresponding amount against receivables held by Purchaser or any of its Affiliates; or |
| c. | combination(s) of (a) and (b) above, |
at the Offer Price per Company Share, for an amount in euros, amounting to the sum in euros necessary to restore the Company’s net assets position (situation nette) in the framework and as part of the contemplated Demerger transaction and immediately prior to the completion of the Demerger to a positive net assets position (situation nette) of €2,000,000.00 (two million euros), both at Effective Date (the “Equity Commitment 1”) and at Completion Date, based on (i) the currently available forecast of net asset position or (ii) the latest actual figure of net asset position available at the Completion Date (the “Equity Commitment 2”), within the limit of a total subscription(s) amount of €30,000,000.00 (thirty million euros) (Equity Commitment 1 and Equity Commitment 2 being designated together as “Equity Commitments”). Notwithstanding the foregoing, in the event that the issuance of ordinary shares of the Company in satisfaction of the obligations in this paragraph 1 would be prohibited by the Exchange Act (as determined in good faith by the Purchaser), then each of the Purchaser and the Company shall work in good faith to provide for the issuance of a separate class of securities of the Company, which issuance would satisfy both the Equity Commitments and the rules and regulations promulgated under the Exchange Act.
| 2. | The undertaking of Purchaser in accordance with paragraph 1 hereof is subject to the following cumulative conditions: (i) the consummation of the Offer in accordance with the MoU; (ii) the adoption of the Demerger Resolution and the Merger Resolution at the GM (or a subsequent GM, if any), (iii) the satisfaction (or waiver) of the Conditions Precedent provided under Clause 7 of the Demerger Agreement in accordance with its terms; and (iv) the MoU and the Demerger Agreement not having been terminated or rescinded. |
| 3. | This letter will immediately and automatically terminate, without any formalities, at the earliest of: (i) the completion by Purchaser of the Equity Commitments in accordance with paragraph 1 hereof, (ii) the date of termination or cancellation or rescission or expiry of the MoU or the Demerger Agreement in accordance with their terms and (iii) May 1st, 2024. |
| 4. | This letter is personal to the parties thereto. Accordingly, this letter and the benefit of all or any of the rights or obligations under this letter cannot be assigned or otherwise transferred to a third party by any of the parties hereto without the prior written consent of the other party. |
| 5. | This letter (and any contractual or non-contractual obligation arising out of or in connection with it) shall be governed by, and construed, in accordance with French law. |
| 6. | Any dispute arising out of or in connection with this letter (including without limitation with respect to the existence, validity, performance, termination and interpretation of this letter and any non-contractual obligation arising out of or in connection with this letter) shall be submitted to the exclusive jurisdiction of the Commercial Court of Paris (Tribunal de commerce de Paris). |
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| 7. | As an express agreement on proof, Purchaser and the Company have agreed to sign this letter electronically, in accordance with the provisions of Articles 1366 et seq. of the Civil Code, through the www.docusign.com service and to designate Colombes (France) as the place of signature. |
| Yours sincerely, |
| /s/ Carsten Jauch |
| Purchaser |
| By: Mr. Carsten Jauch |
| Title: Managing Director |
| Duly authorised |
Acknowledged and agreed by the Company on December 28, 2023:
| /s/ Georges Karam |
| Sequans Communications SA |
| By: Mr. Georges Karam |
| Title: Président Directeur Général |
| Duly authorised |
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Exhibit (d)(18)
AMENDMENT NO. 3 TO MEMORANDUM OF UNDERSTANDING
This Amendment No. 3 (this “Amendment”) to that certain Memorandum of Understanding, dated as of August 4, 2023, as amended September 2, 2023 and December 4, 2023 (collectively, the “MoU”), by and between Renesas Electronics Corporation, a Japanese corporation (“Parent”), and Sequans Communications S.A., a société anonyme organized under the laws of France (the “Company”), is made and entered into as of January 5, 2024 by and between Parent and the Company. All capitalized terms that are used in this Amendment but not defined herein shall have the respective meanings ascribed thereto in the MoU.
WHEREAS, Parent and the Company wish to amend a provision of the MoU as provided herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Amendment to Section 7.2.4(a). Section 7.2.4 of the MoU is hereby amended and restated in its entirety to read as follows:
“(a) For five (5) years following the Offer Acceptance Time and notwithstanding any termination of this MoU, with respect to the Company, Parent shall and, with respect to the Company’s Subsidiaries, Parent shall cause the respective Company’s Subsidiaries, as the case may be, to the extent permitted under applicable Law, to: (i) indemnify and hold harmless, against any costs or expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any legal proceeding (whether formal or informal), and provide advancement of expenses to, all past and present directors and officers of the Company (in their capacities as such) on terms not less favorable to such director or officer than those provided to them by the Company or its Subsidiaries on the date of this MoU; and (ii) include and cause to be maintained in effect in the Company’s Subsidiaries’ (or any successor’s) Organizational Documents (to the extent such Organizational Documents have been made available to Parent prior to the date hereof) for a period of five (5) years after the Offer Acceptance Time, provisions regarding elimination of liability of directors, indemnification of officers and directors, and advancement of expenses to officers and directors that are at least as favorable as those contained in the relevant Company’s Subsidiaries’ Organizational Documents (to the extent such Organizational Documents have been made available to Parent prior to the date hereof) on the date of this MoU. If the Company’s Subsidiaries or any of their successors or assigns (x) consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or merger; or (y) transfer all or substantially all of their properties and assets to any individual, corporation or other entity, then and in each such case, to the extent necessary, proper provisions shall be made so that the successors and assigns of the relevant Company’s Subsidiary shall assume all of the obligations set forth in this Section 7.2.4.”
2. Amendment to Section 7.2.4(b)(i). Section 7.2.4(b)(i) of the MoU is hereby amended and restated in its entirety to read as follows:
“(i) have a term of five (5) years from the Offer Acceptance Time and cover the Persons covered by such D&O Insurance for acts or omissions occurring prior to the Offer Acceptance Time,”
3. Amendment to Section 9.2(e). Section 9.2(e) of the MoU is hereby amended and restated in its entirety to read as follows:
“(e) if on or prior to February 12, 2024 (the “Ruling Date”), Parent has not received either an Adverse Japan Tax Ruling or Confirmatory Japanese Tax Ruling; provided, that the right to terminate this MoU pursuant to this Section 9.2(e) shall not be available to either Party if Parent receives a Confirmatory Japanese Tax Ruling following the Ruling Date and neither Party has terminated pursuant to this Section 9.2(e); or”
4. MoU References. The parties hereto hereby agree that all references to the “MoU” set forth in the MoU (including, without limitation, in the representations and warranties of the parties set forth therein) shall be deemed to be references to the MoU as amended by this Amendment.
5. Full Force and Effect. Except as expressly amended or modified hereby, the MoU and the agreements, documents, instruments and certificates among the parties hereto as contemplated by, or referred to, in the MoU shall remain in full force and effect without any amendment or other modification thereto.
6. Miscellaneous. Sections 10.6, 10.13 and 10.17 of the MoU shall apply to this Amendment mutatis mutandis.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, Parent and the Company have caused this Amendment to be executed as of the date first written above by their respective officers thereunto duly authorized.
| SEQUANS COMMUNICATIONS S.A. | ||||
| By: | /s/ Georges Karam | |||
| Name: | Georges Karam | |||
| Title: | Chief Executive Officer | |||
| RENESAS ELECTRONICS CORPORATION | ||||
| By: | /s/ Takahiro Homma | |||
| Name: | Takahiro Homma | |||
| Title: | Vice President and General Counsel | |||
[Signature Page to Amendment No. 3 to Memorandum of Understanding]