Sequans Communications SC TO-T/A, filed Jan 22, 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. 11)
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. 11 (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, January 5, 2024 and January 22, 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 by adding the following text:
“On January 22, 2024, Purchaser announced an extension of the Expiration Date until one minute after 11:59 p.m., New York City time, on February 5, 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 22, 2023.
The Tender Agent has advised Purchaser that, as of 6 p.m., New York City time, on January 19, 2024, approximately 116,077,972 Ordinary Shares (including Ordinary Shares represented by ADSs) were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 41.8% 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)(L) and is incorporated herein by reference.”
| Item 12. | Exhibits. |
Item 12 is hereby amended and supplemented by adding the following exhibits:
| Index No. | ||
| (a)(1)(R) | Form of Letter to holders of Company RSAs and Company Share Options in the People’s Republic of China. | |
| (a)(1)(S) | Form of Bonus Letter to holders of Company RSAs and Company Share Options in the People’s Republic of China. | |
| (a)(5)(L) | Joint Press Release issued by Parent and Sequans on January 22, 2024 announcing the extension of the Offer. | |
Amendments to the Offer to Purchase and Other Exhibits to the Schedule TO.
The information set forth in the Offer to Purchase and Items 1 through 11 and Item 13 of the Schedule TO, as amended, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, is hereby amended and supplemented as follows: All references in the Offer to Purchase (Exhibit (a)(1)(A)), Form of Ordinary Shares Acceptance Form (Exhibit (a)(1)(B)), Form of ADS Letter of Transmittal (Exhibit (a)(1)(C)), ADS Form of Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(D)), ADS Form of Letter to Clients for Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees (Exhibit (a)(1)(E)), Form of Notice of Guaranteed Delivery (Exhibit (a)(1)(F)) and Summary Advertisement (Exhibit (a)(1)(F)) to the Expiration Date being “one minute after 11:59 p.m., New York City time, on January 22, 2024” are amended and replaced with “one minute after 11:59 p.m., New York City time, on February 5, 2024”.
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 22, 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)(1)(R)
On January __, 2024
Re: Unvested Company RSAs and Unexercised Company Share Options
Dear Sir/Madam,
Reference is made to the cash tender offer initiated by Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH) (the “Purchaser”), relating to all the ordinary shares (the “Company Shares”) of Sequans Communications S.A., a public limited company (société anonyme) organized under the laws of France, whose registered office is located at Les Portes de la Défense - 15-55 Boulevard Charles de Gaulle 92700 Colombes (France) registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (the “Company”) (including American depositary shares representing ordinary shares (“ADSs”)) for a price of $0.7575 per Company Share and $3.03 per ADS (the “Offer”) pursuant to a Memorandum of Understanding dated August 4, 2023 between the Company and Renesas Electronics Corporation, a Japanese corporation (the “MoU”).
As at the date hereof, you hold one or more of the following:
| • | an actions gratuites award (a “Company RSA”) that was issued pursuant to a restricted share award plan of the Company and which Company RSA is not yet vested under its terms (an “Unvested Company RSA”); |
| • | Company Shares or ADSs that were issued pursuant to a Company RSA; and/or |
| • | options to subscribe for Company shares or ADSs issued pursuant to a stock option subscription plan of the Company (the “Company Share Options”). |
The Company has decided, subject to the satisfaction of the conditions set out in the MoU (including in particular the satisfaction of the Minimum Condition, as defined by article 8.1 of the MoU) and the consummation of the Offer, to cancel your outstanding Unvested Company RSAs and Company Share Options and to pay you in return, on an exceptional basis and in compensation for the cancellation of your Unvested Company RSAs, a cash bonus (the payment of which will be deferred, based on the vesting periods of your Company RSAs, i.e. if you were supposed to receive Company Shares in June 2024 and in December 2024, you would receive your deferred bonus in June 2024 and December 2024, the amount of which would be equivalent to the value of the Company Shares you would have received).
Please note that all your Company Share Options are “out-of-the-money” (their exercise price is higher than the price offered by the Purchaser in the context of the Offer) and therefore, those would be cancelled without any compensation and will not be taken into consideration for the determination of the amount of your cash bonus.
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
Consequently, we have enclosed in Exhibit a copy of the cancellation agreement (the “Cancellation Agreement”) in relation to your outstanding Unvested Company RSAs and Company Share Options. In addition, this Cancellation Agreement provides that you irrevocably undertake, conditional on the consummation of the Offer, to transfer to Purchaser all Company Shares or ADSs owned by you as of the date hereof and, to the extent applicable, all additional Company Shares or ADSs of which you may acquire ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
Details of the Offer and on how your Company Shares may be tendered to the Offer can be found here:
https://www.sec.gov/Archives/edgar/data/1383395/000119312523231944/d543505dex99a1a.htm;
and here: https://www.sec.gov/Archives/edgar/data/1383395/000119312523231948/d535148dsc14d9.htm#toc535148_3.
The sale of your Company Shares and ADSs and the effectiveness of the Cancellation Agreement are subject to the satisfaction of the conditions set forth in this letter and those described in the Cancellation Agreement, including the satisfaction of the Minimum Condition (as defined by article 8.1 of the MoU).
The tax implications of tendering your Company Shares in the Offer, cancelling your Unvested Company RSAs and cancelling your Company Shares Options are complex and you are encouraged to consult with your own legal and tax advisors, accountant, and/or financial advisor before entering into the Cancellation Agreement or tendering your Company Shares in the Offer.
Finally, you will separately and individually receive a bonus letter specifying the amount of your cash bonus, its calendar of payment(s) and the Cash Bonus Standard Terms.
We would be grateful if you would please execute and deliver the attached Cancellation Agreement electronically and return it to us as soon as possible and in any event no later than February 5, 2024, 11:59pm (NYC time).
Yours sincerely,
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
| SEQUANS COMMUNICATIONS S.A. |
| represented by Deborah Choate, duly authorized |
| pursuant to a power of attorney granted by Georges Karam |
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT
CANCELLATION AGREEMENT
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
CANCELLATION AGREEMENT
(CHINA)
THIS AGREEMENT is made on
BETWEEN
Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense - 15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677 (including any successor thereto, the Company);
AND
The Beneficiary party to this Agreement and set out on the signature page (the Beneficiary).
BACKGROUND
| (A) | The Beneficiary is providing services to the Company pursuant to the terms of that certain Labor Service Contract entered into between Shanghai Foreign Service Co., Ltd. and Sequans Communications Shanghai Representative Office, dated 1 May 2010. |
| (B) | The Company’s American Depositary Shares (the ADSs) are admitted to trading on the New York Stock Exchange, with each ADS representing four (4) ordinary shares, nominal value of €0.01 per share, of the Company (the Company Shares). |
| (C) | On August 4, 2023, the Company signed a memorandum of understanding (as amended from time to time in accordance with its terms, the MoU) with 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 an affiliate of Parent, 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). |
| (D) | The Company established several restricted share award plans (the Company RSA Plans), which Company RSA Plans provide for the issuance of actions gratuites awards entitling the holder to receive Company Shares in connection with (and no sooner than) the vesting thereof (the Company RSAs). |
| (E) | As of 17 December 2023, the Beneficiary holds the Company RSAs set out at Appendix 1 hereto (together, if any, with any other Company RSAs held by Beneficiary or granted to Beneficiary after the date hereof, the Concerned RSAs, and the Company Shares issuable pursuant to the Concerned RSAs, the Concerned Shares). |
| (F) | The Company established several stock option subscription plans (the Company Share Option Plans), which Company Share Option Plans provide for the grant of options to subscribe for Company Shares and ADSs (the Company Share Options). |
page 1 of 6
| (G) | As of 17 December 2023, the Beneficiary benefits from the Company Share Options set out at Appendix 2 hereto (together, if any, with any other Company Shares Options held by Beneficiary, the Concerned Share Options and together with the Concerned RSAs and the Concerned Shares, the Concerned Securities). |
| (H) | Insofar as is necessary, it is specified for all practical purposes that this Agreement shall apply to any Concerned Securities issued or granted by the Company, as well as any legal successor thereto. |
| (I) | In connection with, and conditioned on the consummation of, the Offer, the Company has requested that the Beneficiary acknowledges this cancellation and surrenders all rights in the Concerned RSAs and the Concerned Share Options as set forth in this cancellation agreement (the Agreement). |
IT IS AGREED AND DETERMINED AS FOLLOWS:
| 1. | Tender shares |
Beneficiary hereby agrees to validly tender (or cause to be validly tendered) into the Offer all Company Shares or ADSs owned by Beneficiary as of the date of this Agreement and, if any, all additional Company Shares or ADSs of which Beneficiary acquires ownership prior to the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer, including as a result of the exercise of vested Company Share Options or the vesting of Company RSAs.
| 2. | Cancellation and Surrender |
Subject to the consummation of the Offer, the Beneficiary acknowledges the cancellation of the Concerned RSAs and the Concerned Share Options by the Company and irrevocably and unconditionally surrenders, for nil consideration, all rights the Beneficiary has or may have under or in connection with the Concerned RSAs and the Concerned Share Options.
| 3. | Further Assurance |
The Beneficiary agrees, at the cost of the Company, to execute all such documents and do all such acts and things as the Company may, at any time after the date of this Agreement, reasonably require to give effect to the provisions of this Agreement (always subject to the consummation of the Offer).
| 4. | Waiver of Claims |
Subject to the consummation of the Offer, the Beneficiary agrees that the terms of this Agreement are in full and final settlement of all and any claims or rights of action that the Beneficiary has or may have against the Company or the Beneficiary’s employer or their officers or employees arising out of or in connection with the Concerned RSAs and/or the Concerned Share Options, or the surrender of the Beneficiary’s rights to the Concerned RSAs and the Concerned Shares Options, whether under law, contract, statute or otherwise, whether such claims are, or could be, known to the Beneficiary or in their contemplation at the date of this Agreement, in any jurisdiction, but excluding any claims by the Beneficiary to enforce this Agreement.
Page 2 of 6
| 5. | Entire Agreement |
| 5.1. | This Agreement constitutes the entire agreement between the parties relating to the subject matter of this Agreement and, unless expressly otherwise provided, supersedes any previous draft, agreement, arrangement or understanding, undertaking, representation, warranty, whether in writing or not, in relation to the matters dealt with in this Agreement. |
| 5.2. | No amendment of this Agreement shall be valid unless it is made in writing and duly executed by or on behalf of the parties. |
| 6. | Severability |
If any provision of this Agreement is held to be or become illegal, invalid or unenforceable, in whole or in part, under any law, for any reason whatsoever, it shall not affect the legality, validity or enforceability of the other provisions of this Agreement and in such case, the parties will consult with each other and use all reasonable efforts to agree a replacement provision with a legal, valid and enforceable substitute of equivalent intended effect of such provision.
| 7. | Electronic signature |
The parties acknowledge and agree that this Agreement may be entered into by a party in writing in electronic form. In such instance, the parties agree that:
| 7.1. | in accordance with the terms of Article 1366 of the French Civil Code, it is signed electronically by means of a reliable identification process implemented by DocuSign®, guaranteeing the link between each signature and this Agreement in accordance with the provisions of Article 1367 of the French Civil Code; |
| 7.2. | this Agreement has the same enforceability as a hard-copy written document pursuant to the provisions of Article 1366 of the French Civil Code and shall be validly invoked to evidence such enforceability; |
| 7.3. | this electronic signature has the same legal enforceability as their handwritten signature and give certainty (date certaine) to the date of/attributed to the signing of this Agreement by the DocuSign services; |
| 7.4. | the requirement of having one (1) original copy of the Agreement for each party shall be deemed to be fulfilled if this Agreement electronically signed is established and stored pursuant to Articles 1366 and 1367 of the French Civil Code and this process allows each party to be provided with a copy of this Agreement on a material format or to have access to a copy of this Agreement, pursuant to the provisions of Article 1375 of the French Civil Code; and |
| 7.5. | this Agreement shall take effect on the date hereof. |
| 8. | Governing Law and Jurisdiction |
| 8.1. | This Agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it, its subject matter or its formation, shall be governed by and construed in accordance with the laws of France. |
| 8.2. | The courts of France shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement or its subject matter or formation. |
Page 3 of 6
| SEQUANS COMMUNICATIONS S.A. represented by Deborah Choate, duly authorized pursuant to a power of attorney granted by Georges Karam |
{{ Name }} born on {{ DOB }} of {{ Citizenship }} nationality residing {{ Address }} e-mail address: {{ docusign_signer1_email }} THE BENEFICIARY |
Page 4 of 6
APPENDIX 1
Number of Company RSAs as of 17 December 2023
| Name of Company RSA Plan |
Number of Company RSAs | |
| RSA Plan 2020-1 | {{ RSA_Plan_2020_1 }} | |
| RSA Plan 2021-1 | {{ RSA_Plan_2021_1 }} | |
| RSA Plan 2022-1 | {{ RSA_Plan_2022_1 }} |
Page 5 of 6
APPENDIX 2
Number of Company Share Options as of 17 December 2023
| Name of Company Share Option Plan |
Number of Company Share Options | |
| SO Plan 2014-1 | {{ SO_Plan_2014_1 }} | |
| SO Plan 2015-1 | {{ SO_Plan_2015_1 }} |
Page 6 of 6
Exhibit (a)(1)(S)
| [DATE], 2024 |
| Strictly Private and Confidential
{{ Name }} {{ Address }} |
Dear {{ Name }},
All capitalized terms used in this letter and not otherwise defined herein are defined in the Cash Bonus Standard Terms which are attached to this letter.
Bonus
You are hereby granted an exceptional bonus (Bonus). Receipt of your Bonus is subject to your acceptance of the terms set out in this letter and the Cash Bonus Standard Terms. Your Bonus is granted over a number of notional ordinary shares (Shares) in the capital of Sequans Communications S.A. (Company). However, your Bonus will be settled in cash only, and you have no right to receive Shares.
Schedule
The vesting schedule for your Bonus is shown in the table below and explained further underneath.
| Total Bonus (number of Shares) |
Vesting schedule | |
| [NUMBER] | Vests in [NUMBER] tranches, each date being a Vesting Date; [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), [DATE] ([NUMBER]), and [DATE] ([NUMBER]). |
Your Bonus will be payable in cash in CNY, settled on the first payroll following each Vesting Date. The amount of cash payable will be equal to the fair market value of a Share on the Vesting Date multiplied by the number of Shares set out in the table above against your Bonus for that Vesting Date. The vesting of each tranche of your Bonus is subject to the Cash Bonus Standard Terms, including the requirement for continued employment.
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
If you have any questions regarding your Bonus, please contact Deborah Choate at deborah@sequans.com.
Kind Regards
SEQUANS COMMUNICATIONS S.A.
represented by Deborah Choate, duly authorized
pursuant to a power of attorney granted by Georges Karam
SEQUANS Communications – Société Anonyme au capital de 2.462.620,04 euros
RCS Nanterre – SIRET 45024967700037
Les Portes de la Défense – Hall A, 15-55 Boulevard Charles de Gaulle, 92700 Colombes, France
Tel: +33 (0)1 70 72 16 00 – Fax: +33 (0)1 70 72 16 09
MKT-FM-006-R18
EXHIBIT
CASH BONUS STANDARD TERMS
| 1. | Introduction |
Defined terms used in this document are set out at the end in clause 9 (Definitions).
In these Terms, references to the singular include the plural and vice versa.
These Terms apply to any Bonus allocated to you.
| 2. | Form of Bonus |
Your Bonus will be expressed as the cash value of a number of notional Shares. The form and number of notional Shares subject to your Bonus will be communicated to you separately via the Bonus Letter.
Your Bonus is a conditional right to receive cash only, and under no circumstances do you have the right to receive Shares.
| 3. | Vesting and payment |
| 3.1 | Vesting |
| 3.1.1 | Your Bonus will be divided into tranches of an equal number of notional Shares. |
| 3.1.2 | Your Bonus will vest in accordance with the vesting schedule set out in the Bonus Letter; each vesting taking place on a Vesting Date. |
| 3.2 | Payment |
| 3.2.1 | Any tranche of your Bonus will be paid to you in cash on each Vesting Date. |
| 3.2.2 | The cash amount to be paid to you on a Vesting Date will be the Market Value of the number of notional Shares subject to the tranche of the Bonus on the date in question. Any payment made in accordance with these Terms will be made by your Employer and will be paid in CNY. The Committee will determine the exchange rate to be used to calculate the amount payable in CNY. |
| 3.3 | Tax |
For social security charges and tax purposes, your Bonus will be treated as a salary and taxed accordingly.
Any Member of the Group or any other third party determined by the Committee may withhold such amounts and make such arrangements as it considers necessary or desirable to meet any liability to pay or account for any tax and social security charges (and/or any similar charges), wherever arising, in respect of your Bonus (“Tax”).
This may include any Member of the Group or other third party determined by the Committee making deductions from any cash payment, including the Bonus, owed to you in order to meet such liability to Tax and any other associated costs.
You agree to be responsible for and bear any liability to Tax and you agree to indemnify the Group for the liability, if requested.
| 4. | Leavers |
| 4.1 | Before Vesting Date |
| 4.1.1 | If you Leave before a Vesting Date, your Bonus will lapse on the date you Leave, unless you Leave due to: |
| (i) | death; |
| (ii) | 2nd and 3rd category disability, within the meaning of article L.341-4 of the French Social Security Code; or |
| (iii) | your termination of services by the Company within six months following the acquisition by a third party of a majority interest in the Company (a “Company Event”), other than for misconduct or gross negligence. |
| 4.1.2 | If you Leave for one of these Good Leaver reasons, your Bonus will be paid to you in cash as soon as practicable following the date you Leave. |
| 5. | Company Events |
| 5.1 | If there is a Company Event before any Vesting Date of any tranche of your Bonus, your Bonus will continue until each of the remaining Vesting Dates of any tranches of the Bonus. However, in the event of a Company Event, the market value of a notional Share used to determine the amount payable under clause 3.2.2 (Timing) will be the price of a Share under the Company Event (and not the price determined in accordance with the definition of Market Value). |
| 6. | General |
| 6.1 | Lapse |
To the extent your Bonus lapses, you will have no right to receive any cash.
| 6.2 | No transfer |
You may not transfer, assign, charge or otherwise dispose of your Bonus or any rights in respect of it (other than to your personal representatives on death). If you do so, whether voluntarily or involuntarily, then your Bonus will immediately lapse.
| 6.3 | Terms of employment |
Nothing in these Terms, or the operation of these Terms, forms part of your contract of employment or alters it. The rights and obligations arising from your employment relationship with Employer or any Member of the Group are separate from, and are not affected by, these Terms. Receiving a Bonus does not create any right to, or expectation of, employment (continued or otherwise).
Receiving a Bonus does not create any right to or expectation to receive a bonus on the same basis, or at all, in any future year. Your Bonus is an extraordinary one-time benefit and is not and will not be deemed a salary component for any purpose whatsoever, including in connection with calculating severance compensation under applicable law.
Your Bonus does not entitle you to the exercise of any discretion in your favour.
You will have no claim or right of action in respect of any decision, omission or discretion, which may operate to your disadvantage.
You have no right to compensation or damages for any loss (actual or potential) in relation to these Terms or your Bonus, including any loss in relation to:
| 6.3.1 | any loss or reduction of rights or expectations under these Terms in any circumstances (including lawful or unlawful termination of employment); |
| 6.3.2 | any exercise of or failure to exercise a discretion or a decision in relation to your Bonus; or |
| 6.3.3 | the operation of these Terms. |
In consideration for, and as a condition of your Bonus, you agree to waive all rights which might otherwise arise in connection with these Terms, other than the right to receive cash, subject to and in accordance with these Terms.
| 6.4 | Not pensionable |
Your Bonus is not pensionable.
| 6.5 | Data protection |
Your Bonus is subject to:
| 6.5.1 | any data protection policies applicable to the Group and any relevant Member of the Group; |
| 6.5.2 | any applicable privacy notices; and |
| 6.5.3 | any applicable consents. |
| 6.6 | Communications |
You agree that any communication given to you in connection with your Bonus or these Terms may be delivered by electronic means (including by email or on a portal), personally delivered or sent by ordinary post to such address as the Company considers appropriate.
Any communication to be given to the Company or its agents, may be sent to its registered office or as the Company or its appointed agent notifies to you.
Communications:
| 6.6.1 | sent electronically will be deemed to have been received immediately, or at the opening of business on the next business day (if sent outside usual business hours); |
| 6.6.2 | that are personally delivered will be deemed to have been received when left at the relevant address, or at the opening of business on the next business day (if left outside usual business hours); and |
| 6.6.3 | sent by post will be deemed to have been received 3 days after posting, |
unless there is evidence to the contrary.
All communications given to you are given and sent at your risk.
| 6.7 | Third party rights |
Except as otherwise expressly stated to the contrary, nothing in these Terms confers any benefit, right or expectation on any other person other than any Member of the Group. No third party has any rights to enforce any rule of these Terms and any statutory or other third party enforcement rights in any jurisdiction are (to the extent permissible by law) excluded.
| 7. | Committee’s powers |
| 7.1 | Rules and regulations |
These Terms are administered by the Committee, which has authority to make such rules and regulations for the administration of these Terms as it considers necessary or desirable. The Committee may delegate any and all of its rights and powers under these Terms.
| 7.2 | Provisions of these Terms |
If any provision of these Terms is held to be invalid, illegal or unenforceable for any reason, that provision will be deleted and the remaining provisions will continue in full force and effect, unless the Committee determines otherwise.
| 7.3 | Committee’s decision final and binding |
All decisions of the Committee in connection with these Terms and their interpretation and your Bonus (including in any dispute) will be final and conclusive.
The Committee will decide whether and how to exercise any discretion in these Terms.
| 7.4 | Amendment |
The Committee may not change these Terms without your written consent, except where the Committee considers it to be necessary or desirable to comply with or take account of any change in legislation or to obtain or maintain favourable tax, exchange control or regulatory treatment for you or any Member of the Group or to correct administrative errors or make minor changes to benefit the administration of your Bonus.
| 8. | Governing law, language and jurisdiction |
The laws of France govern these Terms and your Bonus. The courts of France have exclusive jurisdiction in respect of disputes arising under or in connection with these Terms or your Bonus.
In relation to these Terms, the English language version will prevail, so that if there is any conflict between the provisions of these Terms in English and the same provision in another language, the English version will prevail.
| 9. | Definitions |
For the purposes of these Terms:
“Bonus Letter” means the bonus letter from the Company sent to you separately, setting out the form and number of notional Shares subject to your Bonus;
“Bonus” means a conditional right relating to the value of a number of notional Shares, which is subject to these Terms;
“Committee” means the Remuneration Committee of the board of directors of the Company or such other committee or person to whom the board delegates responsibility for overseeing the operation of these Terms;
“Company” means Sequans Communications S.A., a French limited company (société anonyme) with its registered office at Les Portes de la Défense - 15-55 Boulevard Charles de Gaulle 92700 Colombes (France), registered with the Trade and Companies Register of Nanterre (R.C.S. Nanterre) under number 450 249 677;
“Company Event” has the meaning ascribed to it in clause 4.1.1(iii);
“Employer” means Shanghai Foreign Service Co., Ltd.;
“Good Leaver” means Leaving for one of the circumstances set out in clause 4.1.1;
“Leave” means no longer being employed within the Group or providing services to the Group, or, if earlier, giving or receiving notice to terminate employment within the Group or terminate services for the Group (save where you will continue to be employed by or provide services to another Member of the Group), and “Leaving” will be understood accordingly;
“Market Value” means, for the first fourteen (14) months following the Offer Acceptance Time, the Offer Price and, after such date, an amount calculated as follows:
| Market Value = Offer Price x |
Revenues n–1 | |||
| Revenues 2023 |
Where:
“Revenues n-1” means the consolidated revenues (chiffre d’affaires) achieved by the Company during the last financial year ended on or before the relevant Vesting Date, calculated in accordance with the accounting rules and methods presented in the 2023 consolidated financial report, and on the consolidation perimeter as was existing as at 31 December 2023, and
“Revenues 2023” refers to the consolidated revenues (chiffre d’affaires) achieved by the Company in fiscal year 2023, in accordance with the accounting rules and methods presented in the 2023 consolidated financial report.
Example: if the Offer Acceptance Time is 15 February 2024, the Market Value (which would be equal to the Offer Price) would be USD 3.03 per ADS and such Market Value would be valid until 14 April 2025 (14 months after 15 February 2024). As of 15 April 2025, the above formulas would become applicable.
“Member of the Group” means the Company or a subsidiary of the Company, from time to time, and “Group” will be understood accordingly;
“Offer” means the tender offer governed by the laws of the United States of America and initiated by Purchaser to purchase with cash, subject to certain conditions, all outstanding Company Shares and ADSs issued by the Company for the Offer Price;
“Offer Acceptance Time” means the time of Purchaser’s acceptance and payment for Company Shares tendered in the Offer;
“Offer Price” means USD 3.03 per ADS issued by the Company;
“Purchaser” means Renesas Electronics Europe GmbH, a limited liability company incorporated under the laws of Germany (Gesellschaft mit beschränkter Haftung – GmbH);
“Shares” means ordinary shares in the capital of the Company;
“Tax” has the meaning ascribed to it in clause 3.3;
“Terms” means the terms and conditions set out in this document; and
“Vesting Date” means any date set out in clause 3.1.2.
Exhibit (a)(5)(L)
|
|
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 22, 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 22, 2024, has been extended until one minute after 11:59 P.M., New York City time, on February 5, 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 19, 2024, approximately 116,077,972 ordinary shares of Sequans (including ordinary shares represented by ADSs), representing approximately 41.8% 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.
###
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 |