Item 1.02. Termination of a Material Definitive Agreement.
As previously disclosed, on July 8, 2019, Acacia Communications, Inc., a
Delaware corporation (the "Company") entered into an Agreement and Plan of
Merger (the "Merger Agreement"), by and among the Company, Cisco Systems, Inc.,
a California corporation ("Parent") and Amarone Acquisition Corp., a Delaware
corporation and wholly owned subsidiary of Parent, providing for the acquisition
of the Company by Parent (the "Merger"). On January 8, 2021, without
consummating the Merger, the Company delivered to Parent a written notice
terminating the Merger Agreement pursuant to the terms thereof. A copy of the
notice is attached hereto as Exhibit 99.1 and incorporated by reference herein.
As previously disclosed, in connection with the execution of the Merger
Agreement, on July 8, 2019 the Company, Parent and Cisco International B.V., a
wholly owned subsidiary of Parent (collectively with Parent, "Cisco"), also
entered into an addendum to the Master Purchase Agreements by and between such
parties pursuant to which Cisco agreed to purchase certain percentages, ranging
from 70% to 100% depending on product and date, of Cisco's requirements for
certain of the Company's existing products at agreed upon prices and to
negotiate in good faith with respect to Cisco's future purchase of a majority of
its requirements for certain of the Company's future products. Cisco also
agreed, subject to certain conditions, that it would make a payment to the
Company in the amount of $120 million if the Merger Agreement is terminated for
the failure to obtain required regulatory approvals when all other conditions to
closing have been satisfied. One of the conditions to such $120 million payment
obligation was that Parent had not waived the requirement to obtain required
regulatory approvals for consummation of the Merger. Prior to termination of the
Merger Agreement, Parent irrevocably waived the receipt of all regulatory
approvals for the Merger and, as a result, the Company is not entitled to such
$120 million payment from Cisco. The other provisions of the addendum remain in
effect. The Company did not waive receipt of such approvals. Because approval of
the Chinese government's State Administration for Market Regulation was not
received within the timeframe contemplated by the Merger Agreement, the Company
did not have an obligation to close the Merger before the arrival of the January
8, 2021 extended end date. As such, the Company exercised its right to terminate
the Merger Agreement in accordance with its terms. Parent has informed the
Company that it may dispute the Company's right to have terminated the Merger
Agreement. The Company intends to defend any such claims.
The foregoing descriptions of the Merger Agreement and the addendum to the
Master Purchase Agreements do not purport to be complete and are qualified in
their entirety by reference to the full text of the Merger Agreement and the
addendum to the Master Purchase Agreements, which were previously filed as
Exhibit 2.1 to the Company's Current Report on Form 8-K on July 8, 2019 and
Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q on October 30, 2019,
respectively, and are incorporated by reference herein.
Item 7.01 Regulation FD Disclosure.
The Company plans to host a conference call and live audio webcast to discuss
recent developments and certain preliminary unaudited financial results for its
fourth fiscal quarter and fiscal year ended December 31, 2020, at 5:00 p.m.
Eastern Time on January 11, 2021. The live audio webcast of the call can be
accessed at the Company's Investor Relations website at
http://ir.acacia-inc.com. The U.S. dial-in for the call is (877) 407-8293 (or
(201) 689-8349 for non-U.S. callers). Please ask to be joined to the Acacia
Communications call. A replay of the conference call will be available until
January 18, 2021, at 11:59 p.m. Eastern Time, while an archived version of the
webcast will be available on the Company's Investor Relations website for 90
days. The U.S. dial-in for the conference call replay is (877) 660-6853 (or
(201) 612-7415 for non-U.S. callers). The replay access code is 13714805.
Item 8.01. Other Events.
On January 8, 2021, the Company issued a press release announcing the
termination of the Merger Agreement. A copy of that press release is filed as
Exhibit 99.2 hereto and is incorporated herein by reference.
Safe Harbor for Forward-Looking Statements
This Current Report on Form 8-K includes statements concerning the Company and
its future expectations, plans and prospects that constitute "forward-looking
statements" within the meaning of the Private Securities Litigation Reform Act
of 1995, including statements with respect to the termination of the Merger
Agreement, the effect of the announcement of the termination of the Merger
Agreement, potential litigation that may be instituted against the Company or
its directors or officers related to the Merger, the Merger Agreement or
termination thereof, and any adverse outcome of any such potential litigation.
For this purpose, any statements contained herein that are not statements of
historical fact may be deemed to be forward-looking statements. Without limiting
the foregoing, the words "may," "should," "expects," "plans," "anticipates,"
"intends," "could," "target," "projects," "contemplates," "believes,"
"estimates," "predicts," "potential," "will" or "continue" or the negative of
these terms or other similar expressions are intended to help you identify
forward-looking statements. The forward-looking statements in this Current
Report on Form 8-K are only predictions. The events and circumstances reflected
in the forward-looking statements may not be achieved or occur and actual
results could differ materially from those projected in the forward looking
statements. The Company has based these forward-looking statements largely on
its current expectations and projections about future events and financial
trends that the Company believes may affect its business, financial condition
and results of operations. These forward-looking statements speak only as of the
date of this Current Report on Form 8-K and are subject to a number of risks,
uncertainties and assumptions including, without limitation, the potential
impacts on the Company's business, results of operations and financial condition
as a result of the termination of the Merger Agreement or any challenges to such
termination, and other risks set forth under the caption "Risk Factors" in the
Company's public reports filed with the Securities and Exchange Commission (the
"SEC"), including the Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended September 30, 2020 filed with the SEC and in other filings that
the Company may make with the SEC from time to time. Because forward-looking
statements are inherently subject to risks and uncertainties, some of which
cannot be predicted or quantified, you should not rely on these forward-looking
statements as indicative of future events. The Company assumes no obligation to
update any forward-looking statements contained in this Current Report on Form
8-K as a result of new information, future events or otherwise.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit
Number Description
99.1 Notice delivered to Cisco Systems, Inc., dated January 8, 2021.
99.2 Press release announcing termination of Merger Agreement issued by
the Company on January 8, 2021.
104 Cover Page Interactive Data File (formatted as Inline XBRL)
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