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. 7)
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. 7 (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 and December 5, 2023 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 December 5, 2023, Purchaser announced an extension of the Expiration Date until one minute after 11:59 p.m., New York City time, on December 20, 2023, 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 December 6, 2023.
The Tender Agent has advised Purchaser that, as of 6 p.m., New York City time, on December 4, 2023, approximately 108,974,617 Ordinary Shares (including Ordinary Shares represented by ADSs) were validly tendered and not validly withdrawn pursuant to the Offer, representing approximately 38.8% 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)(H) 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 and Amendment No. 2 to the Memorandum of Understanding, dated December 4, 2023 (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 and Amendment No. 2 to the Memorandum of Understanding, dated December 4, 2023 (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 and Amendment No. 2 to the Memorandum of Understanding, dated as of December 4, 2023 (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 4, 2023, Sequans and Renesas amended the Memorandum of Understanding to extend the Ruling Date (as defined in “Special Factors—Memorandum of Understanding; Other Agreements—The Memorandum of Understanding—Termination”) from December 2, 2023 to January 9, 2024.”
| 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 December 4, 2023, the Company and Parent entered into Amendment No. 2 to the Memorandum of Understanding to extend the Ruling Date from December 2, 2023 to January 9, 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 and (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, 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 January 9, 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 second paragraph under the section of the Offer to Purchase entitled “The Tender Offer—Legal Matters; Required Regulatory Approvals—Regulatory Approvals—United Kingdom” on page 88 is hereby amended and restated in its entirety to read as follows: |
“On or about September 18, 2023, Purchaser filed with the National Security Authority a notification under the NS&I Act in relation to the Offer and other transactions contemplated by the MoU. On October 26, 2023, Purchaser received written notice from the National Security Authority that the National Security Authority has concluded that no further action is to be taken in relation to the Offer and other transactions contemplated by the MoU under the NS&I Act. As a result, the UK NSI Approval condition of the Offer has been satisfied.”
| 10. | The information set forth in the section of the Offer to Purchase entitled “The Tender Offer—Legal Matters; Required Regulatory Approvals—Regulatory Approvals—Taiwan” is hereby amended to add, after the last paragraph in such section on page 88, the following: |
“On October 6, 2023, Purchaser filed with the Taiwan Fair Trade Commission a notification under the Taiwan Fair Trade Act in relation to the Offer and other transactions contemplated by the MoU. On November 29, 2023, Purchaser received a letter of decision from the Taiwan Fair Trade Commission that pursuant to the Taiwan Fair Trade Act, Purchaser may proceed with the Offer and other transactions contemplated by the MoU. As a result, the Taiwan Merger Control Approval condition of the Offer has been satisfied. Subject to the satisfaction or waiver of the remaining conditions of the Offer, including the Minimum Condition, Regulatory Approvals (other than CFIUS Approval, UK NSI Approval and Taiwan Merger Control Approval), and other 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), Parent and Purchaser expect that the Offer will be consummated promptly following the Expiration Date (as hereby extended and as may be further extended).”
| Item 12. | Exhibits. |
Item 12 is hereby amended and supplemented by adding the following exhibits:
| Index No. |
| |
| (a)(5)(H) | Joint Press Release issued by Parent and Sequans on December 5, 2023 announcing the extension of the Offer. | |
| (d)(14) | Amendment No. 2 to the Memorandum of Understanding, by and between Sequans and Parent, dated December 4, 2023. | |
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 December 6, 2023” are amended and replaced with “one minute after 11:59 p.m., New York City time, on December 20, 2023”.
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: December 5, 2023
| 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 | |