Item 1.01. Entry into a Material Definitive Agreement
On
On the terms and subject to the conditions set forth in the Merger Agreement,
Merger Sub will commence an all-cash tender offer (the "Offer") for any and all
of the outstanding Shares which Kyocera does not own at a price of
Following the completion of the Offer, Merger Sub will merge with and into AVX (the "Merger"), with AVX surviving the Merger as a wholly owned subsidiary of Kyocera, pursuant to Section 251(h) of the Delaware General Corporation Law, as amended. The Merger will be effected as soon as practicable following the acceptance for purchase by Merger Sub of Shares validly tendered and not withdrawn pursuant to the Offer, without a vote by stockholders of AVX. At the effective time of the Merger (the "Effective Time"), each issued and outstanding Share (other than certain excluded Shares or Shares irrevocably accepted for purchase pursuant to the Offer) will be converted into the right to receive the Offer Price.
The Merger Agreement has been unanimously approved by AVX's Board of Directors (the "Board of Directors"), acting upon the recommendation of a special committee (the "Special Committee") of the Board of Directors consisting solely of directors not affiliated with Kyocera.
At the Effective Time, (1) all options to purchase Shares will be cancelled and the holders will be entitled to receive the excess (if any) of the Offer Price over the exercise price per Share for each Share underlying such options (assuming full vesting of all options), less applicable withholding taxes, and (2) all awards of restricted stock units of AVX will be cancelled and the holders will be entitled to receive the Offer Price in respect of Share subject to the award (assuming full vesting of all such awards), less applicable withholding taxes.
Merger Sub's obligation to purchase Shares validly tendered and not withdrawn pursuant to the Offer is subject to the satisfaction or, where permissible, waiver, of customary closing conditions, including (i) the Merger Agreement remaining in effect, (ii) the absence of any pending proceeding investigating, challenging or seeking to make illegal the Offer or the Merger, or seeking to restrain, condition or prohibit Kyocera's ownership or operation of all or a material portion of the business or assets of AVX and its subsidiaries, taken as a whole, or to compel Kyocera to make divestitures that would reasonably be expected to have a material adverse effect on AVX or Kyocera, (iii) the absence of any action taken, or law enacted, by a governmental authority prohibiting the Offer or the Merger, (iv) the accuracy of the representations and warranties of AVX contained in the Merger Agreement (subject to certain materiality standards), and (v) AVX's material compliance with its covenants and agreements contained in the Merger Agreement. There is no minimum tender condition.
Pursuant to and subject to the terms and conditions of the Merger Agreement, AVX has agreed, among other things, (1) to use its reasonable best efforts to conduct its business in the ordinary course consistent with past practice; (2) subject to certain customary exceptions set forth in the Merger Agreement to permit the Board of Directors to comply with its fiduciary duties, to recommend that AVX's stockholders accept the Offer and tender all of their shares pursuant to the Offer; (3) not to solicit alternative acquisition proposals; and (4) to certain restrictions on its ability to respond to any unsolicited acquisition proposals. The Merger Agreement also contains customary representations, warranties and covenants of each of AVX, Kyocera and Merger Sub.
The Merger Agreement contains certain customary termination rights for both AVX and Kyocera. In addition, AVX may terminate the merger agreement following a change in the Board of Directors' recommendation in favor of the Offer in connection with the receipt of a "Superior Proposal" (as defined in the Merger Agreement), and Kyocera may terminate the Merger Agreement due to a change in the Board of Directors' recommendation in favor of the Offer.
The foregoing description of the Merger Agreement does not purport to be
complete and is qualified in its entirety by reference to the actual terms of
the Merger Agreement, a copy of which is attached to this Current Report on Form
8-K as Exhibit 2.1 and incorporated into this Item 1.01 by reference. The Merger
Agreement has been included to provide investors with information regarding its
terms and is not intended to provide any financial or other factual information
about the AVX, Kyocera or Merger Sub. In particular, the representations,
warranties and covenants contained in the Merger Agreement (1) were made only
for purposes of that agreement and as of specific dates, (2) were made solely
for the benefit of the parties to the Merger Agreement, (3) may be subject to
limitations agreed upon by the parties, including being qualified by
confidential disclosures made for the purposes of allocating contractual risk
between the parties to the Merger Agreement rather than establishing those
matters as facts and (4) may be subject to standards of materiality applicable
to the contracting parties that differ from those applicable to investors.
Moreover, information concerning the subject matter of the representations,
warranties and covenants may change after the date of the Merger Agreement,
which subsequent information may or may not be fully reflected in public
disclosures by the AVX or Kyocera. Accordingly, investors should read the
representations and warranties in the Merger Agreement not in isolation but only
in conjunction with the other information about AVX or Kyocera and their
respective subsidiaries that the respective companies include in reports,
statements and other filings they make, including filings that AVX makes with
the
Important Additional Information and Where to Find It
The tender offer for the outstanding shares of AVX's common stock described
above has not yet commenced. This communication is for informational purposes
only and is neither an offer to purchase nor a solicitation of an offer to sell
shares of AVX's common stock, nor is it a substitute for the tender offer
materials that Kyocera and Merger Sub will file with the
INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE TENDER OFFER STATEMENT, THE SOLICITATION/RECOMMENDATION STATEMENT REGARDING THE OFFER AND THE SCHEDULE 13E-3 TRANSACTION STATEMENT, AS THEY MAY BE AMENDED FROM TIME TO TIME, WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION THAT HOLDERS OF SHARES OF AVX'S COMMON STOCK SHOULD CONSIDER BEFORE MAKING ANY DECISION REGARDING TENDERING THEIR SHARES.
Investors and security holders may obtain a free copy of these materials (when
available) and other documents filed with the
Cautionary Note Regarding Forward-Looking Statements
This news release contains forward-looking statements, including statements
relating to the proposed acquisition of AVX by Kyocera and other matters, that
are not historical facts. Statements in this news release that relate to future
results and events are forward-looking statements based on AVX's current plans
and expectations and are subject to a number of risks and uncertainties that
could cause such plans and expectations, including actual results, to differ
materially from those described in these forward-looking statements. You should
not place undue reliance on these statements. All statements other than
statements of historical fact, including statements containing the words
"estimates," "believes," "anticipates," "plans," "expects," "will," and similar
expressions, are statements that could be deemed forward-looking statements.
Risks, uncertainties and other factors include, but are not limited to: (a) the
occurrence of any event, change or other circumstances that could give rise to
the termination of the merger agreement; (b) the failure of the proposed tender
offer or merger to close for any other reason; (d) risks related to disruption
of management's attention from AVX's ongoing business operations due to these
transactions; (e) the outcome of any legal proceedings, regulatory proceedings
or enforcement matters that may be instituted against AVX and others relating to
the merger agreement; (f) the risk that the pendency of the proposed tender
offer and merger disrupts current plans and operations and the potential
difficulties in employee retention as a result of the pendency of the proposed
tender offer and merger; (g) the effect of the announcement of the proposed
tender offer and merger on AVX's relationships with its customers, operating
results and business generally; and (h) the amount of the costs, fees, expenses
and charges related to the proposed transactions under the merger agreement. You
should consider these factors carefully in evaluating the forward-looking
statements. Many of these risks and uncertainties are beyond AVX's control. No
assurance can be given that actual results or events will not differ materially
from those projected, estimated, assumed or anticipated in any such
forward-looking statements. Important factors that could result in such
differences, in addition to other factors noted with such forward-looking
statements, are discussed in AVX's Annual Report on Form 10-K for the fiscal
year ended
Item 9.01. Financial Statements and Exhibits
(d) The following exhibits are included with this Report:
Exhibit Number Description 2.1 Agreement and Plan of Merger, dated as ofFebruary 21, 2020 , by and amongAVX Corporation ,Kyocera Corporation andArch Merger Sub Inc. 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
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