Sierra Wireless and Wavecom Memorandum of understanding
Exhibit
(d)(i)
Dated
1st December
2008
Sierra Wireless
and
Wavecom
Memorandum of understanding
This memorandum of understanding is made on
1st December
2008 (the “Agreement”),
BETWEEN:
(1) Sierra Wireless, Inc., a corporation organised
under the Federal laws of Canada, with a share capital of
USD324,406,000, whose registered office is at Suite 2600,
Three Bentall Centre, 595 Burrard Street,
P.O. Box 49314, Vancouver, British Columbia, V7X IL3,
Canada, registered under corporation number
292543-5,
represented by Xxxxx Xxxxxxxx, duly empowered for the purpose
thereof, (the “Purchaser”);
On the one
hand
AND
(2) Wavecom, a société anonyme with
a share capital of €15,796,591, organised under French law,
whose registered office is at 0, xxxxxxxxx xx Xxxxxx, 92442 Issy
Les Moulineaux, registered under number 391 838 042 RCS
Nanterre, represented by Xxxxxx Xxxxx, duly empowered for the
purpose thereof (the “Company”);
On the other
hand
Each a “Party” and together the
“Parties”,
WHEREAS:
(A) On 6 October, 2008, Gemalto filed an unsolicited
offer on the Company’s shares with the French
Autorité des marchés financiers
(“AMF”) and subsequently filed a separate
offer in the United States (the “US”). The AMF
approved Gemalto’s offer on 24 October 2008.
Gemalto’s offer has been opened in France since
28 October 2008 and should be closed on December 15,
2008.
(B) On 7 October 2008, 9 October 2008 and
29 October 2008, the board of directors of the Company (the
“Company Board”) decided unanimously that
Gemalto’s unsolicited offer was not in the best interest of
the Company, its shareholders, its security holders and its
employees. The Company Board recommended that the Company
security holders do not tender any of their securities to
Gemalto’s offers. On 7 October 2008, Sierra Wireless
contacted Wavecom to discuss Gemalto’s offer and the
potential for a friendly acquisition of Wavecom by Sierra
Wireless.
(C) The Purchaser, either directly or through a direct or
indirect wholly owned subsidiary to be identified in accordance
with Section 9.1, is seeking to acquire for cash all
(i) the outstanding ordinary shares of the Company (the
“Shares”), including the Shares represented by
American Depositary Shares (the “ADSs”), and
the Shares issuable upon exercise of share options or
founders’ warrants (bons de créateur
d’entreprise or BCE (the “Founders’
Warrants”) or warrants (bons de souscription
d’actions or BSA (the
“Warrants”) and upon conversion or exchange of
the bonds with a conversion
and/or
exchange option for newly issued or existing shares (the
“OCEANEs”), (ii) the ADSs, and
(iii) the OCEANEs (the Shares, the ADSs and the OCEANEs
being collectively referred to as the
“Securities”), through public tender offers in
France and in the United States (as such offers may be amended
from time to time hereafter the “Offers”),
which will constitute a competing offer to the French and US
unsolicited offers launched by Gemalto.
(D) In the offer made in France, the Purchaser is seeking
to acquire all Securities (other than ADSs and Shares
represented by ADSs) held by (a) holders who are located in
France and (b) holders who are located outside of France
and the United States, if, pursuant to the local laws and
regulations applicable to those holders, they are permitted to
participate in the French offer (the “French
Offer”).
(E) In the offer made in the United States, the Purchaser
is seeking to acquire all Securities (other than Shares
represented by ADSs) held by U.S. holders (within the
meaning of
Rule 14d-1(d)
under the Exchange Act (as hereinafter defined)) and all
outstanding ADSs, wherever the holder is located (the
“US Offer”).
(F) Pursuant to the terms of the Offers, the Purchaser will
offer (a) (i) for each Share (other than Shares represented
by ADSs) validly tendered and not withdrawn €8.50 in cash,
without interest (the “Share Price”) and
(ii) for each ADS (each ADS representing one Share) validly
tendered and not withdrawn an amount in US dollars equal to
the Share Price (as further described in the US Offer Documents
(as defined below),
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without interest, and (b) for each XXXXXX validly tendered
and not withdrawn €31.93 in cash plus unpaid accrued
interests (the “XXXXXX Price”, and together
with the Share Price, the “Offer Prices”), on
the terms and subject to the conditions set forth in this
Agreement.
(G) On the date of this Agreement, based amongst others on
the information provided by Purchaser including, in particular,
the draft French Offer Prospectus (as defined in
Section 3.2 below), the Company Board has unanimously
(i) determined that the acquisition of the Company by the
Purchaser, or an affiliate thereof, through the Offers is in the
best interests of the Company, its employees, and, subject to
consideration of a fairness opinion, its shareholders and other
holders of Securities (the “Initial Company Board
Recommendation”), (ii) decided, in compliance with
article 261-1
I 2° and 5° of the Règlement général
of the AMF (the “AMF General Regulation”),
to appoint Ricol Lasteyrie & Associés as
independent expert (the “Independent Expert”)
to produce a fairness opinion regarding the terms of the French
Offer and with a view to a possible subsequent squeeze-out
(retrait obligatoire) pursuant to
article 237.16.I.1° of the AMF General Regulation (the
“Fairness Opinion”), (iii) decided that,
upon receipt of the Fairness Opinion and subject to the findings
and conclusions of such Fairness Opinion, it would decide upon a
final recommendation to all holders of Securities to tender such
Securities to the Offers, (iv) decided to adjourn the
shareholders’ meeting of the Company to be held on
8 December 2008, called on 21 November 2008, and
(v) decided to authorize the chief executive officer to
enter into this Agreement on behalf of the Company.
(H) The Purchaser and the Company desire to make certain
agreements in connection with the Offers and also to prescribe
various conditions to the Offers.
IT IS AGREED AS FOLLOWS:
1 Interpretation
In this Agreement, unless the context otherwise requires, the
provisions in this Clause 1 apply:
1.1 Definitions
“Affiliate” means, in respect of any Person, a
Person which is controlled by that first company or which
controls that first company or which is controlled by the person
controlling the first company;
“Business Day” means any day on which both the
NYSE-Euronext in France and the NASDAQ in the US are open for
trading, which shall not be a Saturday, a Sunday, a legal
holiday or other day on which banking institutions are
authorized or obligated by Law to close in France or in the US;
“Company Subsidiaries” means each of the
Company’s subsidiaries;
“Control” shall have the meaning ascribed to it
in article L.
233-3 of the
French commercial code (Code de commerce).
“Exchange Act” means US Securities Exchange Act
of 1934, as amended, and the related rules and regulations
promulgated thereunder;
“Governmental Entity” means any Federal, state,
local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other
governmental authority or instrumentality, domestic, foreign or
supranational;
“HSR Act” means the US
Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended;
“Law” means a statute, law (including common
law), ordinance, rule, legislation or regulation;
“Person” means an individual, corporation,
partnership, joint venture, association, trust, limited
liability company, Governmental Entity, unincorporated
organization or other entity, including any such entity or
entities deemed to be a “person” pursuant to
section 13(d) of the Exchange Act;
“SEC” means the US Securities and Exchange
Commission;
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“Subsidiary” of any person means another person
of which 50% or more of any class of capital stock, voting
securities, other voting ownership or voting partnership
interests (or, if there are no such voting interests, 50% or
more of the equity interests) are owned or controlled, directly
or indirectly, by such first person;
“Superior Proposal” means a Takeover Proposal
which is a good faith unsolicited, fully financed and
substantiated offer made in writing by a third party to purchase
or otherwise acquire by any means at least a majority of the
Shares or all or substantially all the assets of the Company and
the Company Subsidiaries taken as a whole, that the board of
directors of the Company has determined in its good faith
judgment is reasonably likely to be consummated in accordance
with its terms, taking into account all legal, financial and
regulatory aspects of the proposal and the Person making the
proposal, and if consummated, would result in a transaction more
favourable to the Company, its employees, its Shareholders and
other Securities holders than the transaction contemplated by
the Purchaser (after taking into account any revisions to the
terms of the transaction contemplated by this Agreement in
response to the proposal made by the third party and the time
likely to be required to consummate such proposal);
“Takeover Proposal” means any offer or proposal
or indication of interest in making an offer or proposal from
any Person (other than the Purchaser) that relates to, or that
could reasonably be expected to lead to, any direct or indirect
acquisition, in one or a series of related transactions,
including, without limitation, by way of any merger,
consolidation, amalgamation, tender offer, exchange offer, stock
purchase, asset purchase, binding share exchange, business
combination, recapitalization, liquidation, dissolution, joint
venture or any other type of transaction, of (a) assets or
businesses that constitute or represent 15% or more of the total
revenue or operating income or EBITDA or assets of the Company
and its subsidiaries, taken as a whole, for the fiscal year
ended 31 December 2007, or (b) 15% or more of the
outstanding shares of any class of capital stock of, or other
equity or voting interests in, the Company or any class of
capital stock of, or other equity or voting interests in, any of
the Company or the Company Subsidiaries directly or indirectly
holding, individually or taken together, the assets or
businesses referred to in clause (a) above, in each case
other than the Offers; and
“Treasury Shares” means Shares held, from time
to time, by the Company or any member of Company’s group;
2 Principles
of Construction
2.1 The Schedules form part of this Agreement and any
reference to this Agreement shall include the Schedules.
2.2 The meanings of the defined terms are applicable
to both the singular and plural forms thereof.
2.3 The headings used in this Agreement have been
adopted by the parties for ease of reference only and the
parties declare that these headings are not to be comprised in
this Agreement and shall not in any event influence the meaning
or interpretation of this Agreement.
2.4 When calculating the period of time within which
or following which any act is to be done or step taken, the
rules described in articles 640 to 642 of the Nouveau
Code de Procédure Civile shall be applied.
2.5 Reference to a “company” shall include
any company, corporation or other body corporate wherever and
however incorporated (including a Groupement
d’Intérêts Economiques).
2.6 A company is a “subsidiary” of another
company (its “holding company”) if that other company
controls it.
3 UNDERTAKINGS
OF THE PURCHASER
3.1 Key
terms of the Offers
The French Offer shall be subject to the AMF General Regulation.
The key terms and conditions of the Offers are set forth in
Schedule 1 (any or all of which such conditions may be
waived by the Purchaser, subject to applicable laws and
regulations). For the avoidance of doubt, the Purchaser shall
have the right to amend the key terms of the Offers once filed
with the AMF only with the prior written approval of the Company.
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3.2 French
Offer
Subject to the terms and conditions of this Agreement, the
Purchaser shall instruct Lazard Frères Banque, in its
capacity as presenting bank (établissement
présentateur) of the French Offer, to file the French
Offer together with the draft tender offer prospectus (projet
de note d’information or draft “French
Offer Prospectus”) substantially in the form presented
to the Company Board with the AMF on the next Business Day
following the date hereof. For the avoidance of doubt, the
Purchaser shall have the right to amend the terms of the draft
French Offer Prospectus (other than the key terms set forth in
Schedule 1) once filed with the AMF (i) to the
extent required to reflect comments from the AMF
and/or the
SEC, as the case may be, subject to prior consultation with the
Company and (ii) in other cases provided that such
amendments shall not make the Offers substantially less
favourable to the Company, its employees, its Shareholders and
other Securities holders and subject to prior consultation with
the Company.
3.3 US
Offer
On the date of opening (ouverture) of the French Offer,
the Purchaser shall also commence the US Offer, in accordance
with the Exchange Act, and the Purchaser shall file with the SEC
a Tender Offer Statement on
Schedule TO-T
with respect to the US Offer, which shall contain an offer to
purchase and a related letter of transmittal and summary
advertisement (such
Schedule TO-T
and the documents included therein pursuant to which the US
Offer will be made, together with any supplements or amendments
thereto, the “US Offer Documents”). For the
avoidance of doubt, the Purchaser shall have the right to amend
the terms of the US Offer Documents to reflect any changes made
to the draft French Offer Prospectus and any comments from the
AMF and/or
the SEC subject to the same limitations as set out in
Section 3.2 above.
| 3.4 | Liquidity mechanism in relation to the Company’s share options, bonus shares, Founders’ Warrants and Warrants |
If the Offers are successful and (i) upon implementation of
a squeeze-out relating to the Shares or (ii) if the trading
of the Company’s Securities is otherwise substantially
reduced, the Purchaser and the Company agree that the Purchaser
or any of its Subsidiaries will offer the benefit of a liquidity
mechanism in relation to the Company’s share options, bonus
shares, Founders’ Warrants and Warrants (to the extent the
corresponding Shares cannot be tendered to the Offers).
3.5 Company
Board
As promptly as practicable upon the settlement and delivery
(règlement-livraison) of the Offers, the Company
Board shall be restructured so that all members thereof are
designated by the Purchaser. Any appropriate actions will be
taken as promptly as practicable to that effect.
4 UNDERTAKINGS
OF THE COMPANY
4.1 Fairness
Opinion — Company Board Recommendation
Upon receipt of the Fairness Opinion stating that the Offer
Prices are fair to the holders of Securities from a financial
point of view (a “Favourable Fairness
Opinion”), the Company Board shall confirm that the
Offers are in the interest of the Company, its employees, its
shareholders and holders of Securities and shall recommend that
all holders of Securities tender such Securities to the Offers
(the “Company Board Recommendation”), which
Company Board Recommendation shall be included in the
documentation for the Offers.
4.2 French
Offer
In accordance with applicable Law, the Company shall undertake
all necessary information procedures with the Company’s
workers’ councils with respect to the Offers.
The Company shall file the draft target prospectus (projet de
note en réponse or draft “French Company
Prospectus”) as soon as practicable and in any event
within two days of receipt of the Fairness Opinion.
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4.3 US
Offer
On the date the US Offer Documents are filed with the SEC, the
Company shall file with the SEC a recommendation or solicitation
statement on
Schedule 14D-9
with respect to the US Offer, including to the extent required
an appropriate information statement (US Information Statement)
under Exchange Act
Rule 14f-1
(such
Schedule 14D-9
and US Information Statement, as amended or supplemented from
time to time, the “Schedule 14D-9”) containing
the Company Board Recommendation and shall deliver the
Schedule 14D-9
to all holders of Securities included in the US Offer in the
manner prescribed by the Exchange Act.
4.4 Treasury
Shares
The Company shall, and cause its affiliates, (i) not to
tender to the French Offer, any of the Treasury Shares it or
such affiliates hold and will come to hold from the date hereof
to the closing of the French Offer or the closing of its
re-opening period and (ii) not to transfer any of the
Treasury Shares (through sale on the market or otherwise) to any
third party except to beneficiaries in accordance with the terms
and conditions of the existing bonus share plan (plan
d’attribution gratuite d’actions), and to that
effect, shall put the Treasury Shares under escrow with a
financial institution of international standing and reputation,
until termination of this Agreement pursuant to Section 8
below.
As a result of the undertaking of the Company not to tender the
Treasury Shares detailed above in this Section, the Parties
agree that the Offers will not target any Treasury Shares.
4.5 Non
solicitation
For the Term of this Agreement, the Company shall, and cause the
Company Subsidiaries, its and their directors, officers,
managers, Affiliates, employees, investment bankers, attorneys,
accountants, other advisors, agent or representatives (the
“Representatives”):
(i) not to, directly or indirectly, (i) solicit,
initiate or encourage, or take any action to facilitate, any
Takeover Proposal or any inquiries reasonably likely to result
in the making of any Takeover Proposal, or (ii) enter into,
continue or otherwise participate in any discussions or
negotiations with a third party regarding, or furnish to any
third party any information, or take any other action to
facilitate any inquiries with respect to, or otherwise cooperate
in any way with, any Takeover Proposal;
(ii) immediately cease and cause to be terminated all
discussions or negotiations with any Person conducted heretofore
with respect to any proposal that constitutes or would
reasonably be expected to lead to a Takeover Proposal, and cause
all materials and written information communicated by the
Company or its advisors and agents to such Person to be returned
to the Company or destroyed;
(iii) to notify the Purchaser of the receipt by it, from
the date of execution hereof, of each and any Takeover Proposal
or of any contact reasonably likely to lead to a Takeover
Proposal including the full details thereof (and any subsequent
amendment thereof) and the identity of the persons involved,
promptly and in any event within 24 hours of such receipt
or contact, unless the Company is bound to keep such information
confidential pursuant to a confidentiality agreement entered
into prior to the date of execution hereof, provided that the
Company shall notify the Person making the Takeover Proposal of
the provisions of Section 4.5 (i) and
(ii) above; and
(iv) to keep the Purchaser reasonably and regularly
informed of the status of any such Takeover Proposal or contact,
including the material details thereof,
provided, however, that nothing contained in this Section or
elsewhere in this Agreement shall (i) prohibit the Company
or the Company Board from complying with applicable laws and
regulations (including in respect of their fiduciary duties), or
(ii) prevent discussions or negotiations with a third party
who files with the AMF a Superior Proposal for the
Company’s securities.
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4.6 Right
to match
The Company covenants that it will not accept, approve,
recommend or enter into any agreement, in respect of a Takeover
Proposal (and shall not make nor allow any public communication
about such Takeover Proposal), unless:
(i) the Takeover Proposal is a Superior Proposal;
(ii) the Company has provided to the Purchaser a copy of
the Takeover Proposal or the full details thereof (and any
subsequent amendment thereof) and the identity of the persons
involved, which information Purchaser shall keep strictly
confidential; and
(iii) a period (the “Response Period”) of
five Business Days shall have elapsed from the date that is the
latest of (i) the date on which the Purchaser received
written notice from the Company that the Company Board
determined, subject only to compliance with this
Section 4.6, to accept, approve, recommend or enter into a
binding agreement to proceed with the Superior Proposal, and
(ii) the date the Purchaser received a copy of the Superior
Proposal,
provided, for the avoidance of doubt, that, notwithstanding
Section 4.5 above, in the event of receipt of any such
Takeover Proposal, the Company and its Representatives shall be
allowed to provide information to, and participate in
discussions and negotiations with the person having made such
Takeover Proposal, provided such person has signed a
confidentiality agreement with the Company on terms not less
restrictive (including standstill provisions) on the other party
than the confidentiality agreement signed on October 24,
2008 between the Company and the Purchaser, and provided that
all information which is provided to the third party is
simultaneously provided to the Purchaser.
During the Response Period, the Purchaser shall have the right,
but not the obligation, to offer to amend the terms of this
Agreement
and/or of
the Offers and the Company shall, and shall cause its advisors
to, negotiate in good faith with the Purchaser to make such
adjustments to the terms and conditions of this Agreement
and/or the
Offers as would enable the Company to proceed with this
Agreement and the Offers as amended, rather than the Superior
Proposal.
If during the Response Period, the Purchaser submits a proposal
to amend the terms of this Agreement, including an increase in,
or modification of, the Offer Prices, the Company Board shall
review and determine whether the Takeover Proposal to which the
Purchaser is responding would be a Superior Proposal when
assessed against this Agreement
and/or the
Offers as they are proposed by the Purchaser to be amended. If
the Company Board does not so determine, the Company Board,
subject to Purchaser and Company entering into an amendment to
this Agreement, will promptly reaffirm that the Offers, as
revised, are in the best interests of the Company, its employees
and its shareholders and other holders of Securities by
confirming its Initial Company Board Recommendation or its
Company Board Recommendation. If the Company Board does so
determine, the Company may approve and recommend that holders of
Securities accept such Superior Takeover Proposal and may
terminate this Agreement pursuant to Section 8.1 to proceed with
the Superior Proposal, provided that such termination shall only
be effective if such Superior Proposal, to the extent it is a
tender offer, is filed with the AMF and cleared
(déclaré conforme) by the AMF.
4.7 Other
undertakings
From the date hereof until the earlier of (i) immediately
before redemption by the Company and payment for the OCEANEs of
the holders who required such early redemption as contemplated
pursuant to Section 4.8 below or (ii) announcement of
the results of the Offers by the AMF (if the Offers are not
successful), the Company shall, and shall cause its Subsidiaries
to:
(i) operate its business in the ordinary course consistent
with past practice (and in particular not change existing
employment agreements and not pay bonuses inconsistent with past
practice) and take all commercially reasonable steps available
to it to preserve the goodwill of its business, its financial
capacities and the relationships with employees and business
partners, provided that (i) any plan, action or decision
made public as of the date hereof or resulting from any such
plan, action or decision (including, in particular, the
6
implementation of the current reorganization), and (ii) the
payment of the one-year special bonus to the Company’s CEO
decided by the Company Board on 17 June 2008 upon
completion of the Offers and the grant of reasonable bonuses
(not exceeding an aggregate gross amount of €350,000) to
the employees most involved in the takeover process shall be
deemed in the ordinary course;
(ii) not to (i) declare, authorize, make or pay a
dividend (in cash or in kind) or interim dividend or other
distribution of a similar nature (such as distribution of the
additional paid-in capital (compte primes
d’émission) or of reserves) or any repurchase,
redemption or other reduction of capital, (ii) except for
trade payables incurred in the ordinary course of business
consistent with past practice, incur or modify any indebtedness
or guarantee or otherwise become liable for the obligations of
any other person, (iii) make capital expenditures
(including acquisitions of businesses or shares in any entity)
or incur any debt in excess in each case of €5,000,000 in
the aggregate, (iv) amend its articles of association,
(v) make, agree to make or decide upon any change to the
capital structure of Company (including by way of redemption,
reduction or increase), any issuance of shares or securities
(including defensive warrants pursuant to section L.233-32 of
the French Code de commerce) or any grant of share
options or bonus shares (other than any issuance of Shares upon
exercise of share options or Founders’ Warrants or Warrants
or share options or upon conversion or exchange of OCEANEs or
upon vesting of bonus shares) or the terms of its existing
securities and (vi) implement double voting rights with
respect to the Shares;
(iii) maintain its cash (or cash equivalents) in an amount
not to be less than €110,000,000;
(iv) maintain a minimum cash balance of €30,000,000,
after giving effect to the completion of the Offers and the
redemption of the OCEANEs as contemplated pursuant to
Section 4.8 below;
(v) not take or agree to take any decision or measure which
(i) may frustrate the Offers or lead to the withdrawal of
the French Offer under
Article 232-11
of the AMF Regulations or (ii) may lead to the consummation
of a Takeover Proposal (other than a Superior Proposal
consummated in compliance with the provisions of Sections 4.5
and 4.6 above);
(vi) fully cooperate with the Independent Expert in order
to allow him to establish the Fairness Opinion; and
(vii) promptly furnish to the Purchaser all information
concerning the Company requested by the Purchaser to be included
in the French Offer Prospectus and the US Offer Documents and in
any correspondence between the Purchaser and the AMF and the SEC
(including any SEC “no action” letters) in respect of
the French Offer and the US Offer respectively.
4.8 OCEANEs
If the Offers are successful and as soon as practicable upon the
announcement of the results of the successful Offers by the AMF,
the Company undertakes to promptly implement the steps
contemplated under paragraph 4.9.4.2 of the prospectus
(note d’opération) relating to the issuance
OCEANEs, which has been approved by the AMF on 5 July 2007
under the visa
n°07-242
and in particular make an announcement within three days of the
settlement and delivery of the Offers (i) in the
Bulletin des Annonces Légales Obligatoires (BALO),
(ii) in a national financial newspaper and (iii) at
NYSE-Euronext informing the OCEANEs holders of the change of
control of the Company and specify a period not exceeding
30 days during which such OCEANEs holders may require the
early cash redemption of their OCEANEs (the
“Redemption Request Period”). The Company
shall redeem and pay for the OCEANEs of the holders who required
such early redemption no later than 5 Business Days after expiry
of the Redemption Request Period.
4.9 Change
of control
The Company undertakes to use its commercially reasonable
efforts (not including the payment of additional consideration)
to obtain, prior to announcement of the results of the Offers by
the AMF, consents by third parties under change of control
clauses in the contracts entered into by the Company where it is
necessary to avoid disruption or prejudice to the business of
the Company as a result of the change of control of the Company
in connection with the Offers.
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4.10 Litigation
To the extent permitted by applicable Law, the Company shall
give the Purchaser the opportunity to consult with the Company
with respect to any litigation commenced prior to, on or after
the date hereof against the Company or any of its directors or
executive officers by any shareholder of the Company relating to
this Agreement or the Offers, and shall not settle or offer to
settle any such litigation without the prior written consent of
Purchaser (not to be unreasonably withheld or delayed).
4.11 Shareholders
meeting
The Company Board has decided on the date hereof to adjourn the
shareholders’ meeting called to be held on 8 December
2008 until the earlier of (i) the date when the French
Offer is held not compliant (non-conforme), as the case
may be, (ii) the filing of a competing offer by any third
party declared compliant (conforme) by the AMF,
(iii) the withdrawal of the Offers, and
(iv) 30 days following the publication of settlement
and delivery of the Offer (règlement-livraison). The
Company undertakes to effect the publication no later than on
Friday 5 December 2008 of the adjournment notice attached
hereto in Schedule 3 in the Bulletin des Annonces
Légales Obligatoires (BALO), in a Journal
d’Annonces Légales and in a daily financial
newspaper to that effect.
It is expressly agreed by the Company that the adjournment of
the shareholders’ meeting referred to this Section is an
essential condition for the Purchaser, who would otherwise not
have entered into this Agreement with the Company.
The Purchaser also expressly agrees with the terms of the first
draft resolution of the agenda of the above mentioned
shareholders’ meeting and accordingly agrees to present and
vote in favour of a resolution substantially similar to such
draft resolution at a Company’s shareholders’ meeting
to be convened after completion of the Offers, and, as the case
may be, procure that the Company Board (once restructured
pursuant to Section 3.5 above) will approve a resolution
necessary to that effect, to the extent in each case that the
Offers are successful and provided that any such actions can be
implemented in compliance with French law as in force and effect
at the time of their implementation.
4.12 Other
confidentiality agreement, standstill or similar
arrangements
The Company shall use its reasonable best efforts to ensure
that, from the date of execution hereof, all confidentiality
agreement, standstill or other similar arrangements to which it
is a party be fully complied with by all the relevant parties
thereto, and by their relevant representatives.
5 Representations
and warranties
The Company represents and warrants that:
(i) the Securities, the Founders’ Warrants and the
Warrants have been duly and validly issued or granted and the
Securities are fully paid up.
(ii) the Company and the Company Subsidiaries do not carry
out any activities as a result of which (i) a filing with
the French Ministry of Economy for prior authorization pursuant
to article L.151-3 of the French Financial and Monetary Code
relating to foreign investment control, or (ii) as far as
the Company is aware, after due and careful inquiry, a prior
approval from a Governmental Entity (other than the AMF, the SEC
and any competent antitrust authorities) prior to closing of the
Offers would be required to implement the Offers and the
transactions contemplated in this Agreement;
(iii) The Company is not prohibited by contract or
otherwise from redeeming the OCEANEs upon the occurrence of a
change of control of the Company; and
(iv) as far as the Company is aware, after due and careful
inquiry, the Company and the Company Subsidiaries do not provide
products or technologies having military, police or other
national security applications to the US Government.
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No investigation by or on behalf of the Purchase prior to the
date of this Agreement shall mitigate, diminish or affect the
representations and warranties made by the Purchaser pursuant to
this Agreement.
6 Break-Up
Fee
6.1 The Company shall pay to the Purchaser a
break-up fee
of €3,270,000, in order to compensate the Purchaser for a
fraction of its costs, if:
(i) the Company Board withdraws or modifies the Initial
Company Board Recommendation or the Company Board Recommendation
or does not issue the Company Board Recommendation (as
contemplated in Section 4.1);
(ii) The Company recommends a tender offer or a Takeover
Proposal from a third party
and/or
enters into an agreement with respect to a Takeover
Proposal; or
(iii) the French Offer is withdrawn pursuant to
article 232-11
of the AMF General Regulation; or
(iv) the AMF announces that the results of a competing
offer for the Company’s securities made by a third party is
successful or another Takeover Proposal is consummated in breach
of this Agreement.
For the avoidance of doubt, no
Break-Up Fee
shall be payable in the event (i) the French Offer is held
not compliant (non conforme) by the AMF for reasons other
than resulting from a breach, by the Company of this Agreement,
in particular the provisions of Section 7.1 below or
(ii) Purchaser amends the terms and conditions of the
Offers in a way which significantly and detrimentally affects
the interests of the Company, the Shareholders or the employees
of the Company.
Also for the avoidance of doubt, the
Break-Up Fee
may only be paid once.
6.2 The payment of such
Break-Up Fee
shall occur within five (5) calendar days of the date on
which the event having triggered it shall have occurred. The
Company acknowledges that the provisions contained in this
Section 6 are an integral part of the Offers and that,
without these provisions, the Purchaser would not have entered
into this Agreement.
6.3 The payment of the
Break-Up Fee
shall be without prejudice of any other rights of the Parties
hereunder.
7 COOPERATION
BETWEEN THE PARTIES
7.1 The Parties undertake to cooperate for the purpose of
completing the Offers and the acquisition of the Company by the
Purchaser (or an affiliate thereof) described in this Agreement.
In particular, the Purchaser and the Company shall cooperate
with each other to fulfil all applicable requirements of the
AMF, the SEC, Nasdaq and NYSE-Euronext to respond to comments
from any of the foregoing, to make such amendments and
supplements to filings as may be required. Without limiting the
foregoing, to the extent not prohibited by applicable Law, the
Company shall furnish to the Purchaser such information and
assistance (including updated lists of security holders,
security position listings and computer files) as Purchaser may
reasonably request in structuring the Offers, communicating the
Offers to the holders of Securities or otherwise.
7.2 For the purposes of completing the Offers, the Parties
also undertake to cooperate and promptly inform each other with
respect to issuing all notifications, making any requests and
obtaining all necessary approvals and authorizations under all
laws and regulations of any relevant jurisdictions and each of
the Parties shall, provided that it does not have adverse
consequences for such Party or any member of its group
(i) use commercially reasonable efforts to obtain, as soon
as practicable after the date of this Agreement, all necessary
no-action letters, approvals and authorizations from
governmental entities, including the US Department of Justice
and any other local antitrust authority and (ii) take all
reasonable steps as may be necessary to obtain an approval or
waiver from, or to avoid an action or proceeding by, any
governmental entity.
7.3 Each Party shall promptly notify the other Party:
(i) if and to the extent it becomes aware that any
information supplied by it or included in filings with the AMF
in respect of the French Offer or with the SEC in respect of the
US Offer shall have become false or misleading in any material
respect; and (ii) upon the receipt of
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any comments from the AMF or the SEC or any request from the AMF
or the SEC for amendments or supplements to filings, in each
case, in respect of the French Offer or the US Offer.
8 TERMINATION
8.1 Term
8.1.1 Save for Sections 1, 2, 6 and 9, this Agreement
shall terminate on the earlier of:
(i) the date when the French Offer is held not compliant
(non-conforme), as the case may be;
(ii) the date of announcement of the results of the Offers
by the AMF if the Offers are not successful;
(iii) by mutual written consent of Purchaser and the
Company;
(iv) a written notice by either Purchaser or the Company to
the other Party, if any Governmental Entity issues an order,
decree or ruling or takes any other action permanently
enjoining, restraining or otherwise prohibiting the acceptance
for payment of, or payment for, Shares pursuant to the Offers
and such order, decree, ruling or other action shall have become
final and non-appealable; or
(v) a written notice of the Company to the Purchaser, if
the Company Board determines that a Takeover Proposal qualifies
as a Superior Takeover Proposal within the meaning of
Section 4.6 above, provided that such termination
shall only be effective if (i) the Superior Proposal, to
the extent it is a tender offer, is filed with the AMF and
cleared (déclaré conforme) by the AMF and
(ii) the Company has effectively paid the
Break-Up Fee
to the Purchaser under Section 6 above.
8.1.2 In addition, the Purchaser shall be entitled to
terminate this Agreement (save for Sections 1, 2, 6 and
9) if:
(i) the Purchaser withdraws the French Offer pursuant to
article 232-11
of the AMF General Regulation; or
(ii) the Company Board withdraws or modifies the Initial
Company Board Recommendation or the Company Board Recommendation
and/or
recommends a tender offer or a Takeover Proposal from a third
party.
8.2 Effect
of Termination
In the event of termination of this Agreement by either the
Company
and/or
Purchaser as provided in Section 8.1, this Agreement shall
forthwith become void and have no effect (save as contemplated
in Section 8.1.1(iv)), without any liability or obligation
on the part of Purchaser or the Company, other than Sections 1,
2, 6 and 9 and this Section 8.2; provided, however, that no
such termination shall relieve any Party hereto from any
liability or damages resulting from a wilful breach by such
Party of any of its undertakings set forth in this Agreement,
and all rights and remedies of such non-breaching party under
this Agreement in the case of any such breach shall be
preserved. The confidentiality agreement (the
“Confidentiality Agreement”) between the
Parties dated 24 October 2008 shall survive any termination
of this Agreement and shall apply to all information and
material delivered by any party hereunder, in each case in
accordance with its terms.
9 GENERAL
PROVISIONS
9.1 Successors
and Assigns
This Agreement is personal to the Parties thereto. Accordingly,
neither the Purchaser nor the Company may, without the prior
written consent of the other Party, assign the benefit of all or
any of their obligations under this Agreement, nor any benefit
arising under or out of this Agreement except that the Purchaser
may assign, in its sole discretion, any of or all its rights,
interests and obligations under this Agreement to any direct or
indirect wholly-owned subsidiary of the Purchaser (including
designating any such entity to act as Purchaser hereunder), but
no such assignment shall relieve the Purchaser of any of its
obligations under this Agreement if its transferee does not
perform such obligations. Any purported assignment without such
consent shall be void. Subject to the preceding
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sentences, this Agreement will be binding upon, inure to the
benefit of, and be enforceable by, the Parties hereto and their
respective successors and assigns.
9.2 Variation
etc.
No variation of this Agreement shall be effective unless in
writing and signed by or on behalf of each of the parties to
this Agreement.
9.3 Costs
The Purchaser shall bear all investment banking advisory, legal,
accountancy and other costs and expenses incurred by it in
connection with this Agreement. The Company shall bear all such
costs and expenses incurred by it.
9.4 Communication
and announcement
Promptly following the execution of this Agreement, the Company
and Purchaser shall jointly issue a press release substantially
in the form of Schedule 2 (the “Public
Announcement”).
The Purchaser and the Company shall, to the extent reasonably
practicable, consult with each other before issuing, and provide
each other a reasonable opportunity to review and comment upon,
any press release or other public statements with respect to the
Offers and shall not issue any such press release or make any
such public statement prior to such consultation, except as may
be required by applicable Law, by court process, by obligations
pursuant to any listing agreement or market rules of any
national securities exchange on which such Party’s shares
are traded.
The Parties agree that executives from both Parties will
participate in media presentations, analysts presentations and
road-shows to explain the Offers.
9.5 Whole
Agreement
This Agreement and the other agreements entered into on or
subsequent to the date hereof contain the whole agreement
between the parties relating to their subject matter to the
exclusion of any terms implied by law which may be excluded by
contract and supersedes any previous written or oral agreement
between the parties in relation to the matters dealt with in
this Agreement to the exception of the Confidentiality Agreement.
9.6 Notices
Any notice or other communication requiring to be given or
served under or in connection with this Agreement shall be in
writing and shall be sufficiently given or served if delivered
or sent:
In the case of the Purchaser, to Sierra Wireless at:
Suite 2600,
Three Bentall Centre,
595 Burrard Street,
X.X. Xxx 00000,
Xxxxxxxxx,
Xxxxxxx Xxxxxxxx,
X0X XX0,
Xxxxxx
Attention: Xxxx XxXxxxxx
In the case of the Company to, Wavecom at:
0, xxxxxxxxx xx Xxxxxx,
00000 Xxxx Xxx Xxxxxxxxxx
Xxxxxx
Attention: Xxxxxx Xxxxx
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Any such notice or other communication shall be delivered by
hand or sent by courier or fax. If sent by courier or fax, such
notice or communication shall conclusively be deemed to have
been given or served on the Business Day following the time of
despatch. Any fax shall, in addition, be sent by post the day on
which it is sent but this shall not alter the time it is deemed
served pursuant to this Clause.
The Purchaser and the Company may by notice to the other and in
accordance with the above-mentioned provisions of
Clause 9.6 specify from time to time a different address
for notice within France or Canada upon 10 Business Days notice.
9.7 Severability
If any term or provision of this Agreement is held to be illegal
or unenforceable, in whole or in part, under any enactment or
rule of Law, such term or provision or part shall to that extent
be deemed not to form part of this Agreement but the
enforceability of the remainder of this Agreement shall not be
affected. Furthermore, in lieu of such invalid illegal or
unenforceable provision, the parties shall add as part of this
Agreement a provision as similar in terms to such invalid,
illegal or unenforceable provision as may be possible and be
valid, legal and enforceable.
9.8 Governing
Law and Jurisdiction
This Agreement shall be governed by and construed in accordance
with French law.
Any dispute relating to its validity, interpretation or
execution shall be submitted to the exclusive jurisdiction of
the Tribunal de Commerce de Paris.
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Executed in Paris on
1st December
2008, in two original copies
/s/ Xxxxx
Xxxxxxxx
Sierra Wireless, Inc.
Represented by: Xxxxx Xxxxxxxx
| Title: | Chief Executive Officer |
/s/ Xxxxxx
Xxxxx
Wavecom
Represented by: Xxxxxx Xxxxx
Title: Directeur Général
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SCHEDULE 1
KEY TERMS
OF THE OFFERS
|
Share Price
|
€8.50 | |
|
XXXXXX Price
|
€31.93 (plus unpaid accrued interest) | |
|
Minimum tender condition
|
50% + 1 voting right of the Company’s voting rights i.e. number of shares tendered to the Offers/(number of outstanding shares on closing of the Offer — number of Treasury Shares) |
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