VONAGE HOLDINGS CORP. Item 1.01. Entry into a Material Definitive Agreement.
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The Merger Agreement provides that, among other things, upon the terms and subject to the conditions set forth in the Merger Agreement, Merger Sub will merge with and into the Company (the "Merger"), with the Company continuing as the surviving corporation and an indirect wholly owned subsidiary of Parent (the "Surviving Corporation"). The proposed transaction is expected to be consummated after the required approval by the stockholders of the Company and the satisfaction of certain other customary conditions summarized below.
Merger Consideration
Pursuant to the Merger Agreement, each share of common stock, par value
Treatment of Equity Awards
Unless otherwise mutually agreed by the parties, or by Parent and the applicable holder, in consultation with the Company, at the Effective Time each outstanding equity award will be treated as follows:
• Each option to purchase Shares (a "Company Option") that was granted
under the Company's 2006 Stock Incentive Plan, the Company's Amended and
Restated 2015 Equity Incentive Plan and the Nexmo Inc. 2011 Stock Plan
(collectively, the "Company Stock Plans") and is outstanding as of
immediately prior to the Effective Time, whether vested or unvested,
(i) if the per Share exercise price of such Company Option is equal to or
greater than the Merger Consideration, such Company Option will terminate
and be cancelled, without any consideration being payable in respect
thereof, and have no further force or effect and (ii) if the per Share
exercise price of such Company Option is less than the Merger
Consideration, such Company Option will terminate and be cancelled in
exchange for the right to receive a lump sum cash payment in the amount
equal to (x) the number of Shares underlying the Company Option
immediately prior to the Effective Time, multiplied by (y) an amount
equal to the Merger Consideration minus the applicable exercise price.
• Each restricted stock unit that is or was subject to only timed-based
vesting conditions (a "Restricted Stock Unit") that was granted under the
Company Stock Plans and is outstanding as of immediately prior to the
Effective Time, whether vested or unvested, will terminate and be
cancelled in exchange for: (i) with respect to Restricted Stock Units
that become vested in accordance with their terms on or prior to the
Effective Time but have not yet been paid, the right to receive a lump
sum cash payment in the amount equal to (A) the number of Shares
underlying such Restricted Stock Unit, multiplied by (B) the Merger
Consideration and (ii) with respect to all other Restricted Stock Units,
a new cash-based award representing the right to receive an unvested
amount in cash equal to (A) the number of Shares underlying such
Restricted Stock Unit, multiplied by (B) the Merger Consideration,
vesting, subject to the continued employment of the former holder of such
Restricted Stock Unit with Parent and its affiliates (including the
Surviving Corporation ), on the same vesting schedule (including with
respect to any terms providing for acceleration of vesting) and otherwise
on substantially the same terms as the corresponding Restricted Stock
Unit.
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• Each performance restricted stock unit that is or was subject to
performance-based vesting conditions (each, a "Performance Restricted
Stock Unit") that was granted under the Company Stock Plans and is
outstanding as of immediately prior to the Effective Time, whether vested
or unvested, will terminate and be cancelled in exchange for: (i) with
respect to Performance Restricted Stock Units with a performance period
that ends on or prior to the Effective Time, the right to receive a lump
sum cash payment in the amount equal to (A) the number of Shares subject
to such Performance Restricted Stock Unit that vested based on the actual
level of achievement under the awards, multiplied by (B) the Merger
Consideration and (ii) with respect to all other Performance Restricted
. . .
Item 3.03. Material Modifications to Rights of Security Holders.
In connection with the Merger and pursuant to the Merger Agreement, the Company
and
The foregoing description of Amendment No. 1 does not purport to be complete and is qualified in its entirety by reference to such amendment, a copy of which is filed as Exhibit 4.1 hereto and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On
The foregoing description of the amendment to the By-Laws is qualified in its entirety by the full text of the By-Laws, which is filed as Exhibit 3.1 hereto and incorporated herein by reference.
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Item 7.01. Regulation FD Disclosure.
On
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933 or the Exchange Act, regardless of any general incorporation language in such filings.
Forward-Looking Statements
This communication contains forward-looking statements, including statements
regarding the effects of the proposed acquisition of the Company by Parent, that
constitute forward-looking statements for purposes of the safe harbor provisions
under The Private Securities Litigation Reform Act of 1995. In addition, other
statements in this communication that are not historical facts or information
may be forward-looking statements. The forward-looking statements in this
communication are based on information available at the time the statements are
made and/or management's belief as of that time with respect to future events
and involve risks and uncertainties that could cause actual results and outcomes
to be materially different. Important factors that could cause such differences
include, but are not limited to: the occurrence of any event, change or other
circumstances that could give rise to the termination of the merger agreement;
the inability to complete the proposed merger due to the failure to obtain
stockholder approval for the proposed merger or the failure to satisfy other
conditions to completion of the proposed merger; risks related to disruption of
management's attention from the Company's ongoing business operations due to the
transaction; the effect of the announcement of the proposed merger on the
Company's relationships with its customers, operating results and business
generally; the risk that the proposed merger will not be consummated in a timely
manner; the impact of the COVID-19 pandemic; the competition the Company faces;
the expansion of competition in the cloud communications market; risks related
to the acquisition or integration of businesses the Company has acquired; the
Company's ability to adapt to rapid changes in the cloud communications market;
the nascent state of the cloud communications for business market; the Company's
ability to retain customers and attract new customers cost-effectively;
developing and maintaining market awareness and a strong brand; developing and
maintaining effective distribution channels; security breaches and other
compromises of information security; risks associated with sales of the
Company's services to medium-sized and enterprise customers; the Company's
reliance on third-party hardware and software; the Company's dependence on
third-party vendors; system disruptions or flaws in the Company's technology and
systems; the Company's ability to comply with data privacy and related
regulatory matters; the Company's ability to scale its business and grow
efficiently; the impact of fluctuations in economic conditions, particularly on
the Company's small and medium business customers; the effects of significant
foreign currency fluctuations; the Company's ability to obtain or maintain
relevant intellectual property licenses or to protect the Company's trademarks
and internally developed software; fraudulent use of the Company's name or
services; restrictions in the Company's debt agreements that may limit its
operating flexibility; the Company's ability to obtain additional financing if
required; retaining senior executives and other key employees; intellectual
property and other litigation that have been and may be brought against us;
rapid developments in global API regulation and uncertainties relating to
regulation of VoIP services; risks associated with legislative, regulatory or
judicial actions regarding the Company's business products; reliance on third
parties for the Company's 911 services; liability under anti-corruption laws or
from governmental export controls or economic sanctions; actions of activist
shareholders; risks associated with the taxation of the Company's business;
governmental regulation and taxes in the Company's international operations; the
Company's history of net losses and ability to achieve consistent profitability
in the future; the Company's ability to fully realize the benefits of its net
operating loss carry-forwards if an ownership change occurs; risks associated
with the settlement and conditional conversion of the Company's Convertible
Senior Notes; potential effects the capped call transactions may have on the
Company's stock in connection with the Company's Convertible Senior Notes;
certain provisions of the Company's charter documents; and other factors that
are set forth in the "Risk Factors" in the Company's Annual Report on Form 10-K
and in the Company's Quarterly Reports on Form 10-Q filed with the
Additional Information and Where to Find It
In connection with the proposed merger, the Company intends to file relevant
materials with the
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VOTING DECISION, STOCKHOLDERS OF THE COMPANY ARE ADVISED TO READ THE PROXY
STATEMENT AND ANY AMENDMENTS THERETO IN THEIR ENTIRETY WHEN FILED WITH THE
Participants in the Solicitation
The Company and its directors and executive officers may be deemed to be
participants in the solicitation of proxies from the Company's stockholders with
respect to the proposed merger. Information about the Company's directors and
executive officers and their ownership of the Company's common stock is set
forth in the proxy statement on Schedule 14A filed with the
Item 9.01 Financial Statements and Exhibits.
(c) Exhibits. 2.1* Agreement and Plan of Merger, by and amongVonage Holdings Corp. , Telefonaktiebolaget LM Ericsson (publ) andEricsson Muon Holding Inc. , dated as ofNovember 22, 2021 . 3.1 Amendment to the Amended and Restated By-Laws ofVonage Holdings Corp. , dated as ofNovember 21, 2021 . 4.1 Amendment No 1 to the Tax Benefits and Preservation Plan, by and betweenVonage Holdings Corp. andAmerican Stock and Transfer Company LLC , dated as ofNovember 22, 2021 . 99.1 Press Release datedNovember 22, 2021 . 104 Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document).
* Schedules omitted pursuant to item 601(b)(2) of Regulation S-K.
agrees to furnish supplementally a copy of any omitted schedule to the
request, provided, however, that the Company may request confidential treatment
pursuant to Rule 24b-2 of the Exchange Act, as amended, for any schedule or
exhibit so furnished.
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