Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED
PURSUANT TO RULE 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. )*
Integrated Device Technology, Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
458118106
(CUSIP Number)
Libin Sun, Liang Xu, Haiping Zhou, Zhibin Lin
Junping Chen, Libin Yang
Suite A601, Ecommerce Service Base, Gongyuannan Rd.
Nanshan District, Shenzhen, Guangdong 518070
Peoples Republic of China
+86-755-2602-7862
With a Copy to:
Nauman A. Aly
1812 N Columbia Blvd
Gate C15, Suite 514-668
Portland, Oregon 97217
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
April 12, 2016
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
| | | | | | | | |
Item 1. Security and Issuer |
Item 2. Identity and Background |
Item 3. Source and Amount of Funds or Other Consideration |
Item 4. Purpose of Transaction |
Item 5. Interest in Securities of the Issuer |
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer |
Item 7. Material to Be Filed as Exhibits |
Signatures |
Exhibit 99.1 – Joint Filing Agreement by and among the Reporting Persons, dated April 12, 2016 |
Exhibit 99.2 – Proposal Letter to the Board of Directors of Integrated Device Technology, Inc., dated April 12, 2016 |
Exhibit 99.3 – Form of Draft Merger Agreement by and among SUN Parent, Inc., SUN Merger Sub, Inc., and Integrated Device Technology, Inc. |
| | |
|   1 |   NAME OF REPORTING PERSON   Libin Sun |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   6,010,886(1) |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   6,010,886(1) |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   6,010,886(1) |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(2) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   4.4%(3) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Includes 3,600,000 shares of common stock subject to American-style call options with strike prices ranging from $0.25 to $0.38 and exercisable through dates ranging from November 3, 2016 to November 14, 2016.
(2) Libin Sun may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(3) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Liang Xu |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   260,433 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   260,433 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   260,433 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.2%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Liang Xu may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Haiping Zhou |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   130,775 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   130,775 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   130,775 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.1%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Haiping Zhou may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Zhibin Lin |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   75,915 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   75,915 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   75,915 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.1%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Zhibin Lin may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Junping Chen |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   72,000 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   72,000 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   72,000 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.1%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Junping Chen may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Libin Yang |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Peoples Republic of China |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   70,877 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   70,877 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   70,877 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.1%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Libin Yang may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
| | |
|   1 |   NAME OF REPORTING PERSON   Nauman A. Aly |
|   2 |   CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP   (a) o (b) x |
|   3 |   SEC USE ONLY |
|   4 |   SOURCE OF FUNDS   PF, OO |
|   5 |   CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)   o |
|   6 |   CITIZENSHIP OR PLACE OF ORGANIZATION   Pakistan |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |   7 |   SOLE VOTING POWER   185,000 |
|   8 |   SHARED VOTING POWER   0 |
|   9 |   SOLE DISPOSITIVE POWER   185,000 |
|   10 |   SHARED DISPOSITIVE POWER   0 |
|   11 |   AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON   185,000 |
|   12 |   CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES   x(1) |
|   13 |   PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)   0.1%(2) |
|   14 |   TYPE OF REPORTING PERSON   IN |
(1) Nauman A. Aly may be deemed to be part of a group with certain other Reporting Persons. See Item 5.
(2) Calculated based on 135,373,226 shares of the common stock, $0.001 par value, of Integrated Device Technology, Inc., outstanding as of February 5, 2016, as reported in Integrated Device Technology, Inc.s Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016 filed with the Securities and Exchange Commission on February 9, 2016.
Item 1. Security and Issuer
This statement of beneficial ownership on Schedule 13D relates to the common stock, par value $0.001 per share (the Common Stock), of Integrated Device Technology, Inc., a corporation organized under the laws of the state of Delaware (the Issuer). The principal executive offices of the Issuer are located at 6024 Silver Creek Valley Road, San Jose, California 95138.
The Common Stock is listed on the NASDAQ Global Select Market under the ticker symbol IDTI. Information given in response to each item shall be deemed incorporated by reference in all other items, as applicable.
Item 2.  Identity and Background
(a) (c) and (f) This statement of beneficial ownership on Schedule 13D is being filed jointly by and on behalf of each of Libin Sun (LSUN), Liang Xu (LXU), Haiping Zhou (HZHOU), Zhibin Lin (ZLIN), Junping Chen (JCHEN), Libin Yang (LYANG), and Nauman A. Aly (NALY and together with LSUN, LXU, HZHOU, ZLIN, JCHEN, and LYANG, the Reporting Persons and each, a Reporting Person).
This Schedule 13D is filed jointly by the Reporting Persons pursuant to Rule 13d-1(k) promulgated by the SEC under Section 13 of the Securities Exchange Act of 1934, as amended (the Act).
The Reporting Persons have entered into a Joint Filing Agreement, dated as of April 12, 2016, a copy of which is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
The Reporting Persons are filing this statement jointly, as they may be considered a group within the meaning of Section 13(d)(3) of the Act with respect to the Proposed Transaction described in Item 4 of this Schedule 13D.
Information with respect to each of the Reporting Persons is given solely by such Reporting Person, and no Reporting Person assumes responsibility for the accuracy or completeness of the information concerning the other Reporting Persons, except as otherwise provided in Rule 13d-1(k).
Each of LSUN, LXU, HZHOU, ZLIN, JCHEN, and LYANG is a citizen of the Peoples Republic of China.
The business address of each of LSUN, LXU, HZHOU, ZLIN, JCHEN, and LYANG is Suite A601, Ecommerce Service Base, Gongyuannan Rd., Nanshan District, Shenzhen, Guangdong 518070, Peoples Republic of China.
Each of LSUN, LXU, HZHOU, ZLIN, JCHEN, LYANG, and NALY is an investor.
The business address of NALY is 1812 N Columbia Blvd Gate C15, Suite 514-668, Portland, Oregon 97217. NALY is a citizen of Pakistan.
(d) During the last five years, none of the Reporting Persons has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors).
(e) During the last five years, none of the Reporting Persons was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violations with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration
LSUN purchased 2,410,886 shares of Common Stock for aggregate consideration of $58,726,747.
LSUN purchased American-style call options referencing 3,600,000 shares of Common Stock for aggregate consideration of $93,168,241.
LXU purchased 260,433 shares of Common Stock for aggregate consideration of $6,401,443.
HZHOU purchased 130,775 shares of Common Stock for aggregate consideration of $3,176,524
ZLIN purchased 75,915 shares of Common Stock for aggregate consideration of $1,856,881.
JCHEN purchased 72,000 shares of Common Stock for aggregate consideration of $1,746,090.
LYANG purchased 70,877 shares of Common Stock for aggregate consideration of $1,742,156.
NALY purchased American-style call options referencing 185,000 shares of Common Stock for aggregate consideration of $19,966.
Each of the Reporting Persons used personal funds to acquire the securities of the Issuer.
The Reporting Persons may effect purchases of securities through margin accounts maintained for them with brokers, which extend margin credit as and when required to open or carry positions in their margin accounts, subject to applicable federal margin regulations, stock exchange rules and such firms credit policies. Positions in shares of Common Stock may be held in margin accounts and may be pledged as collateral security for the repayment of debit balances in such accounts. Such margin accounts may from time to time have debit balances. In addition, since other securities may be held in such margin accounts, it may not be possible to determine the amounts, if any, of margin used to purchase shares of Common Stock.
Item 4. Purpose of Transaction
On April 12, 2016, the Reporting Persons sent a letter (the April Letter) to the Board of Directors of the Issuer (the Board), pursuant to which the Reporting Persons made a proposal (Proposal) to acquire all of the outstanding shares of Common Stock not beneficially owned by the Reporting Persons for $32.00 per share in cash, subject to the terms described in the April Letter (the Proposed Transaction).
In the April Letter, the Reporting Persons expressed their belief that the Proposal represents a compelling opportunity that stockholders will find extremely attractive.
Together with the April Letter, the Reporting Persons provided the Board with a draft merger agreement (the “Draft Merger Agreement”) and advised the Board that the Reporting Persons were prepared to begin negotiating a definitive merger agreement immediately. The Draft Merger Agreement contemplates the acquisition of the Issuer by an affiliate of the Reporting Persons (“Parent”), by means of the merger of a subsidiary of Parent with and into the Issuer (the “Merger”). Under the terms of the Merger Agreement, at the effective time of the Merger, each share of outstanding Common Stock would convert into the right to receive the merger consideration of $32.00, without interest, in cash, subject to terms and conditions of the Draft Merger Agreement. In addition to other customary terms and conditions, the Draft Merger Agreement includes a “go-shop” provision, which would permit the Issuer to solicit competing acquisition proposals for a period of 45 days following the signing date of the definitive merger agreement. The Draft Merger Agreement does not contain a financing condition.
The description of the April Letter and the Draft Merger Agreement in this Item 4 is qualified in its entirety by reference to the complete text of the April Letter and the Draft Merger Agreement, which have been filed as Exhibit 99.2 and 99.3 to this Schedule 13D and are incorporated herein by reference in their entirety.
There can be no assurance that any definitive agreement will be entered into regarding the proposed acquisition of the Issuer, or, if entered into, what the terms thereof will be, or that the Proposed Transaction or any other transaction will be approved or consummated. The Proposal is subject to a number of conditions, including, among other things, the negotiation and execution of a definitive agreement and other related agreements mutually acceptable in form and substance to the Issuer and the Reporting Persons. Neither the Issuer nor any Reporting Person is obligated to complete the Proposed Transaction, and a binding commitment with respect to the Proposed Transaction will result only from the execution of definitive documents, and then will be on the terms provided in such documentation.
The Reporting Persons purchased the shares of Common Stock based on the Reporting Persons belief that the shares, when purchased, were undervalued and represented an attractive investment opportunity. No Reporting Person has any present plan or proposal which would relate to or result in any of the matters set forth in subsections (a) through (j) of Item 4 of Schedule 13D except as set forth herein or such as would occur upon or in connection with completion of, or following, any of the actions discussed herein.
The Reporting Persons expect to engage in discussions with management, the Board, other stockholders of the Issuer, potential financing sources as well as other relevant or interested parties concerning the transactions contemplated by the April Letter, as well as concerning the business, assets, capitalization, financial condition, operations, governance and board composition, management, strategy and future plans of the Issuer, which discussions may include proposing or considering one or more of the actions described in subsections (a) through (j) of Item 4 of Schedule 13D.
The Reporting Persons intend to review their investments in the Issuer on a continuing basis. Depending on various factors, including, without limitation, the Issuers financial position and strategic direction, the outcome of the discussions referenced above, actions taken by the Board, price levels of the securities of the Issuer, other investment opportunities available to the Reporting Persons, concentration of positions in the portfolios managed by the Reporting Persons, the availability and cost of debt financing, whether any offer has been made by a third party to acquire the Issuer or the outstanding shares of Common Stock, the terms and conditions of any offer that is made by a third party to acquire the Issuer or the outstanding shares of Common Stock, conditions in the capital markets and general economic and industry conditions, the Reporting Persons may in the future take such actions with respect to their investments in the Issuer as they deem appropriate, including, without limitation, purchasing additional shares of the Common Stock or other financial instruments related to the Issuer or selling some or all of their beneficial or economic holdings, engaging in hedging or similar transactions with respect to the securities relating to the Issuer and/or otherwise changing their intention with respect to any and all matters referred to in Item 4 of Schedule 13D.
Item 5. Interest in Securities of the Issuer
(a) (b) Based upon the Issuers Quarterly Report on Form 10-Q for the quarterly period ended January 3, 2016, as filed with the Securities and Exchange Commission on February 9, 2016, there were 135,373,226 shares of the Common Stock outstanding as of February 5, 2016.
As of the date of this Schedule 13D, (i) LSUN beneficially holds and has the sole voting and dispositive power over 6,010,886 shares of Common Stock (which includes 3,600,000 shares of Common Stock subject to American-style call options), or approximately 4.4% of the outstanding shares of Common Stock of the Issuer; (ii) LXU beneficially holds and has the sole voting and dispositive power over 260,433 shares of Common Stock, or approximately 0.2% of the outstanding shares of Common Stock of the Issuer; (iii) HZHOU beneficially holds and has the sole voting and dispositive power over 130,775 shares of Common Stock, or approximately 0.1% of the outstanding shares of Common Stock of the Issuer; (iv) ZLIN beneficially holds and has the sole voting and dispositive power over 75,915 shares of Common Stock, or approximately 0.1% of the outstanding shares of Common Stock of the Issuer; (v) JCHEN beneficially holds and has the sole voting and dispositive power over 72,000 shares of Common Stock, or approximately 0.1% of the outstanding shares of Common Stock of the Issuer; (vi) LYANG beneficially holds and has the sole voting and dispositive power over 70,877 shares of Common Stock, or approximately 0.1% of the outstanding shares of Common Stock of the Issuer; and (vii) NALY beneficially holds and has the sole voting and dispositive power over 185,000 shares of Common Stock (which includes 185,000 shares of Common Stock subject to American-style call options), or approximately 0.1% of the outstanding shares of Common Stock of the Issuer.
Due to the nature of the transaction described in Item 4 of this statement, the Reporting Persons may be deemed to be part of a group (within the meaning of Section 13(d)(3) of the Exchange Act). As a result, each of the Reporting Persons may be deemed to beneficially own an aggregate of 6,805,886 shares of Common Stock, or approximately 5% of the outstanding shares of Common Stock of the Issuer. Each Reporting Person hereby expressly disclaims beneficial ownership of any shares of Common Stock beneficially owned by any other Reporting Person or any other person, and does not affirm membership in a group (within the meaning of Rule 13(d)-5 of the Exchange Act) with any other Reporting Person or any other person, and this Schedule 13D shall not be construed as acknowledging that any Reporting Person, for any or all purposes, beneficially owns any shares of Common Stock beneficially owned by any other Reporting Person or any other person or is a member of a group with any other Reporting Person or any other person.
Except as disclosed in this statement, none of the Reporting Persons (i) beneficially owns any shares of Common Stock or has the right to acquire any shares of Common Stock or (ii) presently has the power to vote or to direct the vote or to dispose or direct the disposition of any of the shares of Common Stock that they may be deemed to beneficially own.
(c) To the best knowledge of each of the Reporting Persons, none of the Reporting Persons has effected any transactions relating to the securities of the Issuer during the past 60 days, except that NALY bought American-style call options referencing 185,000 shares of Common Stock, on April 12, 2016 for an aggregate consideration of $19,966.
(d) To the best knowledge of each of the Reporting Persons, no person other than the Reporting Persons has the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, the securities beneficially owned by the Reporting Persons identified in this Item 5.
(e) Not applicable.
Item 6.  Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
LSUN beneficially holds options to purchase 3,600,000 shares of Common Stock pursuant to various American-style call options with strike prices ranging from $0.25 to $0.38 and exercisable through dates ranging from November 3, 2016 to November 14, 2016. NALY beneficially holds options to purchase 185,000 shares of Common Stock pursuant to various American-style call options with a strike price of $20 and exercisable through April 15, 2016. None of the options gives the Reporting Persons direct or indirect voting, investment or dispositive control over any securities of the Issuer or require the counterparties thereto to acquire, hold, vote or dispose of any securities of the Issuer.
The Reporting Persons may, from time to time, enter into and dispose of options or other derivative transactions with one or more counterparties that are based upon the value of shares of Common Stock, which transactions may be significant in amount. The profit, loss and/or return on such contracts may be wholly or partially dependent on the market value of the shares of Common Stock.
Except for the matters described herein, none of the Reporting Persons has any contract, arrangement, understanding or relationship (legal or otherwise) with any person with respect to securities of the Issuer.
Item 7.  Material to be Filed as Exhibits
Exhibit 99.1 – Joint Filing Agreement by and among the Reporting Persons, dated April 12, 2016.
Exhibit 99.2 – Proposal Letter to the Board of Directors of Integrated Device Technology, Inc., dated April 12, 2016.
Exhibit 99.3 – Form of Draft Merger Agreement by and among SUN Parent, Inc., SUN Merger Sub, Inc., and Integrated Device Technology, Inc.
SIGNATURES
After reasonable 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: April 12, 2016
| | |
| LIBIN SUN |
| |
| By: | | /s/ Libin Sun |
| | Name: Libin Sun |
|
| LIANG XU |
| |
| By: | | /s/ Liang Xu |
| | Name: Liang Xu |
|
| HAIPING ZHOU |
| |
| By: | | /s/ Haiping Zhou |
| | Name: Haiping Zhou |
|
| ZHIBIN LIN |
| |
| By: | | /s/ Zhibin Lin |
| | Name: Zhibin Lin |
|
| JUNPING CHEN |
| |
| By: | | /s/ Junping Chen |
| | Name: Junping Chen |
|
| LIBIN YANG |
| |
| By: | | /s/ Libin Yang |
| | Name: Libin Yang |
|
| NAUMAN A. ALY |
| |
| By: | | /s/ Nauman A. Aly |
| | Name: Nauman A. Aly |
|
Signature Page to Schedule 13D
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, each of the undersigned hereby agrees to the joint filing on behalf of each of them of a statement on Schedule 13D (including amendments thereto) with respect to the common stock, par value $0.001 per share, of Integrated Device Technology, Inc., and that this agreement be included as an Exhibit 99.1 to such joint filing. This agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. Each of the undersigned acknowledges that each shall be responsible for the timely filing of any statement (including amendments) on Schedule 13D, and for the completeness and accuracy of the information concerning him or her contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the other persons making such filings, except to the extent that he or she knows or has reason to believe that such information is inaccurate.
[Signature Page Follows]
Dated: April 12, 2016 | | |
| LIBIN SUN |
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| By: | | /s/ Libin Sun |
| | Name: Libin Sun |
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| LIANG XU |
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| By: | | /s/ Liang Xu |
| | Name: Liang Xu |
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| HAIPING ZHOU |
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| By: | | /s/ Haiping Zhou |
| | Name: Haiping Zhou |
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| ZHIBIN LIN |
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| By: | | /s/ Zhibin Lin |
| | Name: Zhibin Lin |
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| JUNPING CHEN |
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| By: | | /s/ Junping Chen |
| | Name: Junping Chen |
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| LIBIN YANG |
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| By: | | /s/ Libin Yang |
| | Name: Libin Yang |
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| NAUMAN A. ALY |
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| By: | | /s/ Nauman A. Aly |
| | Name: Nauman A. Aly |
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Signature Page to Joint Filing Agreement
PROPOSAL LETTER
CONFIDENTIAL
April 12, 2016
The Board of Directors
Integrated Device Technology, Inc.
6024 Silver Creek Valley Road
San Jose, California 95138
Dear Members of the Board of Directors:
We, Libin Sun, Liang Xu, Haiping Zhou, Zhibin Lin, Junping Chen, Libin Yang, and Nauman A. Aly (collectively, we or us), are pleased to submit this preliminary non-binding proposal (the “Proposal”) to acquire all of the outstanding shares of common stock of Integrated Device Technology, Inc. (the “Company” or “IDT”) not beneficially owned by us for a purchase price of $32.00 per share in cash (the “Transaction”).
This all-cash Transaction would provide stockholders with immediate liquidity at a substantial premium to the markets assessment of IDTs value. Our Proposal represents a premium of 65% to the closing price of the Companys common stock on April 11, 2016. By any measure, we believe our Proposal represents a compelling opportunity that your stockholders will find extremely attractive.
In addition, in order to guarantee that stockholder value is being maximized, we have included in our filings today a draft merger agreement that contemplates a “go shop” provision that would allow the Board to solicit competing proposals for a period following execution of our agreement. We are aware that numerous parties have expressed acquisition interest in IDT, and this structure guarantees that the Company will secure a healthy premium for its stockholders while holding open the opportunity to obtain an even higher premium. Our draft merger agreement contains no financing condition, and we have endeavored to make this a document that is both customary for transactions of this type and fair to both sides in order to facilitate a quick negotiation. We are eager to move ahead expeditiously.
Our Proposal is subject to a confirmatory due diligence review of the Company which, with the cooperation of management, we believe can be completed within 30 days. With access to private diligence materials, we believe there is a further opportunity to increase our current offer, which is based on publicly disclosed information only. We are available to sign an appropriate confidentiality agreement and commence our due diligence review immediately.
The Transaction would be subject to the approval of the Companys Board of Directors and the negotiation and execution of mutually agreeable definitive transaction documents. We would be happy to meet with members of the Board, senior management and your advisors as soon as practicable to answer any questions about our Proposal or the attached draft and to work out the details for moving toward a completed Transaction.
We intend to finance the Transaction with a combination of debt and equity capital. Equity financing would be provided by us, in the form of cash and rollover equity in the Company, and from any additional equity investor who may be admitted to the Transaction. Debt financing is expected to be provided by loans from third party financial institutions. We are confident that we can timely secure adequate financing to consummate the Transaction.
Please note that this Proposal is not a binding offer, agreement or agreement to make a binding offer or agreement at any point in the future. This letter is a preliminary indication of interest by us and does not contain all matters upon which agreement must be reached in order to consummate the proposed Transaction, nor does it create any binding rights or obligations in favor of any person. The parties will be bound only upon the execution of mutually agreeable definitive documentation.
Please note that we will promptly file a beneficial ownership report on Schedule 13D disclosing the submission of this letter. As a result of our substantial share ownership in IDT, SEC rules oblige us to make the existence and contents of this letter public.
In closing, we would like to express our commitment to working together to bring this Transaction to a successful and timely conclusion. Should you have any questions regarding this Proposal, please do not hesitate to contact us. We look forward to hearing from you.
[Signature Page Follows]
Sincerely,
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| LIBIN SUN |
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| By: | | /s/ Libin Sun |
| | Name: Libin Sun |
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| LIANG XU |
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| By: | | /s/ Liang Xu |
| | Name: Liang Xu |
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| HAIPING ZHOU |
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| By: | | /s/ Haiping Zhou |
| | Name: Haiping Zhou |
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| ZHIBIN LIN |
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| By: | | /s/ Zhibin Lin |
| | Name: Zhibin Lin |
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| JUNPING CHEN |
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| By: | | /s/ Junping Chen |
| | Name: Junping Chen |
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| LIBIN YANG |
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| By: | | /s/ Libin Yang |
| | Name: Libin Yang |
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| NAUMAN A. ALY |
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| By: | | /s/ Nauman A. Aly |
| | Name: Nauman A. Aly |
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“Acceptable Confidentiality Agreement” means a confidentiality agreement that contains terms that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreements; provided, that an Acceptable Confidentiality Agreement shall not include any provision having the effect of prohibiting the Company from satisfying its obligations under this Agreement.
“Acquisition Proposal” means any proposal or offer relating to (a) a merger, joint venture, partnership, consolidation, dissolution, liquidation, tender offer, recapitalization, reorganization, share exchange, business combination or similar transaction involving the Company (or any Subsidiary or Subsidiaries of the Company whose business constitutes 20% or more of the net revenues, net income or assets of the Company and its Subsidiaries, taken as a whole), (b) the acquisition of 20% or more of the outstanding shares of any class of capital stock of the Company or 20% or more of the voting power represented by the outstanding voting securities of the Company, (c) a tender offer or exchange offer or other transaction which, if consummated, would result in a direct or indirect acquisition of more than 20% of the total voting power of the capital stock of the Company or 20% or more of the voting power represented by the outstanding voting securities of the Company, (d) the acquisition in any manner, directly or indirectly, of over 20% of the consolidated total assets of the Company and its Subsidiaries (or to which 20% or more of the Company’s revenues or earnings on a consolidated basis are attributable) including, for this purpose, the outstanding assets and Equity Interests of the Subsidiaries of the Company, in each case other than the transactions contemplated by this Agreement, or (e) any other transaction having a similar effect to those described in clauses (a) through (d) and in each case other than the transactions contemplated by this Agreement.
“Action” means any claim, charge, complaint, dispute, demand, grievance, action, litigation, audit, investigation, review, inquiry, arbitration, suit in equity or at law, administrative, regulatory or quasi-judicial proceeding, or other proceeding of whatever kind or character.
“Affiliate” means, with respect to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such Person, and for purposes of this definition, the term “control” (including the correlative terms “controlling”, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Available Cash” means the cash and cash equivalents of the Company and its domestic Subsidiaries that are not held outside of the United States, are not subject to any escrow or reserve requirements (e.g., settlement-related cash balances and merchant reserves), and can be made available for use in funding the aggregate Per Share Merger Consideration without the incurrence of any Tax or violation of any contractual, legal or other restriction on the use thereof for such purpose, less (ii) the principal amount drawn under the Credit Facilities as of the Closing (excluding any undrawn amounts under outstanding letters of credit).
“Benefit Plan” means any “employee benefit plan”, as defined in Section 3(3) of ERISA, whether or not subject to ERISA, and any employment, change in control, retention, bonus, defined benefit or defined contribution, pension, profit sharing, deferred compensation, stock ownership, stock purchase, stock option, stock appreciation, restricted stock, restricted stock unit, phantom stock or other equity-based management, retirement, vacation, severance, termination, disability, death benefit, hospitalization, medical, dental, or other employee benefit plan, program, scheme, policy, agreement or arrangement as to which the Company or any of its Subsidiaries sponsors, maintains, contributes to or is obligated to contribute to, or has or may have any liability, for the benefit of any current or former officer, employee, consultant or director of the Company or any of its Subsidiaries.
“Business Day” means any day except a Saturday, a Sunday or any other day on which commercial banks are required or authorized to close in New York, New York.
“CFIUS Approval” means Parent and the Company shall have received written notice from CFIUS stating that: (i) CFIUS has concluded that the transaction is not a covered transaction and not subject to review under applicable Law; (ii) the review of the transaction contemplated by this Agreement under Section 721 of the U.S. Defense Production Act of 1950 has been concluded, and there are no unresolved national security concerns with respect to the transaction contemplated by this Agreement; or (iii) CFIUS has sent a report to the President of the United States requesting the Presidents decision on the CFIUS notice submitted by Parent and Company and either (A) the period under the Defense Production Act of 1950 during which the President may announce his decision to take action to suspend, prohibit or place any limitations on the transactions contemplated hereby has expired without any such action being threatened, announced or taken or (B) the President has announced a decision not to take any action to suspend, prohibit or place any limitations on the transactions contemplated hereby.
“Company ESPP” means the Company’s 2009 Employee Stock Purchase Plan.
“Company ESPP Purchase Right” means a right to purchase a number of Shares pursuant to the Company ESPP.
“Common Stock” means the common stock of the Company, par value $0.001 per share.
“Company Group” means the Company, its Subsidiaries and any of their respective former, current, or future stockholders, directors, officers, Affiliates or agents.
“Company Intellectual Property” means Intellectual Property owned by the Company and its Subsidiaries.
“Company Material Adverse Effect” means any fact, development, condition, matter, state of facts, circumstance, change, event, occurrence or effect that has, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the condition (financial or otherwise), business, properties, assets, liabilities or results of operations of the Company and its Subsidiaries taken as a whole; provided, that none of the following, and no effect arising out of or resulting from the following, shall constitute or be taken into account in determining whether a “Company Material Adverse Effect” has occurred or may, would or could occur:
(i) any facts, circumstances, changes, events, occurrences or effects generally affecting (A) the principal industries in which the Company and its Subsidiaries operate or (B) the economy, credit or financial or capital markets in the United States or elsewhere in the world, including changes in interest or exchange rates; or
(i) (ii) any facts, circumstances, changes, events, occurrences or effects, to the extent arising out of, resulting from or attributable to (A) generally applicable changes after the date hereof in applicable Law or GAAP, or any changes after the date hereof in the interpretation or enforcement thereof, (B) the public announcement of this Agreement, to the extent arising from the identity of Parent or its Affiliates (provided, that this clause (B) shall be disregarded for purposes of any representations and warranties set forth in Section 3.5), (C) acts of war (whether or not declared), sabotage or terrorism, or any escalation or worsening of any such acts of war (whether or not declared), sabotage or terrorism, (D) any decline in the market price, or change in trading volume, of any capital stock of the Company, (E) the existence, occurrence or continuation of any force majeure events, including any earthquakes, floods, hurricanes, tropical storms, fires or other natural disasters, or (F) any failure to meet any internal or public projections, forecasts or estimates of revenue, earnings, cash flow or cash position;
provided, that (x) facts, developments, conditions, matters, states of facts, circumstances, changes, events, occurrences or effects set forth in clauses (a)(i), (a)(ii)(A), (a)(ii)(C) and (a)(ii)(E) above may be taken into account in determining whether there has been or is a Company Material Adverse Effect to the extent such facts, developments, conditions, matters, states of facts, circumstances, changes, events, occurrences or effects have a disproportionate adverse effect on the condition (financial or otherwise), business, properties, assets, liabilities or results of operations of the Company and its Subsidiaries, taken as a whole, in relation to others in the principal industries in which the Company and its Subsidiaries operate, and (y) that the underlying cause of any decline, change or failure referred to in clauses (a)(ii)(D) and (a)(ii)(F) above may be taken into account in determining whether there has been or is a Company Material Adverse Effect; or (b) would, or would reasonably be expected to, prevent or materially delay the consummation of the Merger.
“Company Stock Incentive Plans” means, collectively, the Company’s 2004 Equity Plan, as amended; and 2009 Employee Stock Purchase Plan, each as in effect on the date of this Agreement.
“Contract” means any note, bond, mortgage, indenture, lease, license, permit, concession, franchise, contract, agreement, commitment, arrangement or other instrument or obligation.
“Credit Facilities” means the credit facilities provided for in the agreements listed on Section 8.10(a) of the Company Disclosure Letter.
“Environmental Laws” means any and all applicable Laws which (i) regulate or relate to the protection or clean up of the environment; the use, treatment, storage, transportation, handling, disposal or release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water or air; or the health and safety of persons or property, including protection of the health and safety of employees; or (ii) impose liability or responsibility with respect to any of the foregoing, including the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.) the Toxic Substance Control Act (15 U.S.C. 2601 et seq.) and the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) (Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006), or any other Law of similar effects.
“Environmental Permits” means any Permit required under applicable Environmental Laws.
“Equity Interest” means any share, capital stock, partnership, member or similar interest in any entity and any option, warrant, right or security convertible, exchangeable or exercisable therefor or other instrument or right the value of which is based on any of the foregoing.
“ERISA Affiliate” means a corporation which is or was a member of a controlled group of corporations with the Company and/or its Subsidiaries within the meaning of Code Section 414(b), a trade or business which is or was under common control with the Company and/or its Subsidiaries within the meaning of Code Section 414(c), or a member of an affiliated service group with the Company and/or its Subsidiaries within the meaning of Code Section 414(m) or (o).
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
“Facilities” means all real property owned, leased, or operated by the Company or its Subsidiaries and any buildings, facilities, machinery, equipment, furniture, leasehold and other improvements, fixtures, vehicles, structures, any related capital items and other tangible property located on, in, under, or above the real property of the Company or its Subsidiaries.
“FCPA” means the U.S. Foreign Corrupt Practices Act of 1977, 15 U.S.C. §§ 78dd-1 et seq., as amended, modified, recodified or supplemented, together with all rules and regulations thereunder.
“Financing Sources” means the Persons that have committed to provide or have otherwise entered into agreements in connection with the Debt Financing (including any alternative debt financings) in connection with the transactions contemplated hereby, and any joinder agreements, indentures or credit agreements entered into pursuant thereto, including the parties named in Section 4.7(a), together with their Affiliates, officers, directors, employees, agents and representatives involved in the Debt Financing and their successors and assigns.
“GAAP” means United States generally accepted accounting principles in effect from time to time, consistently applied.
“Governmental Entity” means any federal, state, local, municipal or foreign government, any court, tribunal, administrative agency or commission or other governmental or quasi-governmental or other regulatory authority or agency, whether federal, state, local, municipal, foreign or supranational, or any arbitral body or the NASDAQ.
“Hazardous Substance” means any pollutant, chemical, substance and any toxic, infectious, carcinogenic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation under any Environmental Laws, including any quantity of asbestos, urea formaldehyde, polychlorinated biphenyls (PCBs), radon gas, toxic mold, and petroleum products or by-products.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.
“Intellectual Property” means all intellectual property rights of any type or nature recognized by law, however, denominated, throughout the world, including such intellectual property rights in: trademarks, trade names, service marks, service names, mark registrations and applications, trade dress, logos, slogans, assumed names, domain names, the goodwill in any of the foregoing; works of authorship, registered and unregistered copyrights, software, data, databases; technology, inventions (whether patentable or not), patents and patent applications; trade secrets and confidential information; rights of privacy and publicity; and any similar or equivalent property of any of the foregoing (as applicable).
“Knowledge” means with respect to the Company, the actual knowledge of those persons set forth in Section 8.10(a)-1 of the Company Disclosure Letter after reasonable inquiry and (b) with respect to Parent, the actual knowledge of those person set forth in Section 8.10(a) of the Parent Disclosure Letter after reasonable inquiry.
“Law” means any Order or any federal, state, local, foreign, supranational or international law, statute, treaty, convention or ordinance, common law, or any rule, regulation, standard, directive, requirement, policy, license or permit of any Governmental Entity.
“Leased Real Property” means any parcel of real property together with all buildings, structures, facilities, fixtures, systems, improvements and items of property currently or hereafter attached or appurtenant thereto and all easements, rights of way, reservations, privileges, appurtenances and other estates and rights pertaining to the foregoing, in each case, held by the Company or any of its Subsidiaries pursuant to a lease, sublease, license or other written agreement.
“Lien” means any mortgage, pledge, security interest, encumbrance, adverse claim, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof).
“Marketing Period” means the first period of thirty (30) consecutive calendar days commencing after the date hereof and throughout and at the end of which (a) Parent shall have received the Required Information from the Company and the Required Information shall be complete, (b) the conditions set forth in Article VI are satisfied (except for those conditions that by their terms are to be satisfied by actions at the Closing) and (c) nothing has occurred and no condition exists that would reasonably be expected to cause any of the conditions set forth in Article VI to fail to be satisfied, assuming the Closing were to be scheduled for any time during such thirty (30) consecutive calendar day period; provided, that: (i) if the Marketing Period does not end prior to [●], then the Marketing Period shall be deemed not to commence earlier than [●], (ii) if any financial information for any fiscal quarter included in the Required Information becomes stale under Regulation S-X promulgated under the Securities Act, the Marketing Period shall not be deemed to have commenced unless and until the Company has furnished Parent with updated Required Information, (iii) the Marketing Period shall not be deemed to have commenced if, after the date of this Agreement and prior to the completion of the Marketing Period, (A) PricewaterhouseCoopers LLP shall have withdrawn its audit opinion with respect to any of the financial statements contained in the Company SEC Documents, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest, a new unqualified audit opinion is issued with respect to such financial statements by PricewaterhouseCoopers LLP or another independent accounting firm reasonably acceptable to Parent, or (B) the Company shall have announced any intention to restate any historical financial statements of the Company or other financial information included in the Required Information, or that any such restatement is under consideration or may be a possibility, in which case the Marketing Period shall not be deemed to commence unless and until, at the earliest such restatement has been completed and the applicable Required Information has been amended or the Company has announced that it has concluded no such restatement shall be required in accordance with GAAP, (iv) if the Company shall have been delinquent in filing or furnishing any Company SEC Document, the Marketing Period shall not be deemed to have commenced unless and until, at the earliest, all such delinquencies have been cured, and (v) if the Company has received any material accounting comments from the staff of the SEC on its Annual Reports on Form 10-K or Quarterly Reports on Form 10-Q, as such may be amended, the Marketing Period shall not be deemed to have commenced unless and until, at the earliest, all such material accounting comments have been satisfactorily resolved with the SEC staff. Notwithstanding anything to the contrary herein, the Marketing Period shall not commence until the date on which the Company has first mailed (or, to the extent permitted by Law, made available) the Proxy Statement to the stockholders of the Company.
“Merger Communication” means, with respect to the Company, any document or other written communication prepared by or on behalf of the Company or any of its Subsidiaries, or any document or other material or information posted or made accessible on the website of the Company (whether in written, video or oral form via webcast, hyperlink or otherwise), that is related to any of the transactions contemplated by this Agreement and, if reviewed by a stockholder of the Company, would reasonably be deemed to constitute a “solicitation” of “proxies” (in each case, as defined in Rule 14a-1 of the Exchange Act) with respect to the Merger.
“NASDAQ” means NASDAQ Global Select Market.
“Order” means any order, judgment, writ, stipulation, settlement, award, injunction, decree, consent decree, decision, ruling, subpoena, verdict, arbitration award or finding entered, issued, made or rendered by any arbitrator or Governmental Entity of competent jurisdiction.
“Parent Material Adverse Effect” means any fact, circumstance, change, event or occurrence, that, individually or in the aggregate, would or would be reasonably expected to, prevent or materially delay the performance by Parent or Merger Sub of its obligations under this Agreement or the consummation by Parent and Merger Sub of the transactions contemplated hereby, including the Merger, on a timely basis.
“Permitted Liens” means (a) zoning restrictions, easements, rights-of-way or other restrictions on the use of real property (provided, that such liens and restrictions do not materially interfere with the use of such real property or the Company’s or its Subsidiaries’ operation of their respective businesses as currently operated or otherwise materially and adversely impair the Company’s current business operations at such location), (b) pledges or deposits by the Company or any of its Subsidiaries under workmen’s compensation Laws, unemployment insurance Laws or similar legislation, or good faith deposits in connection with bids, tenders, Contracts or leases to which such entity is a party, or deposits to secure public or statutory obligations of such entity or to secure surety or appeal bonds to which such entity is a party, or deposits as security for contested Taxes, in each case incurred or made in the ordinary course of business consistent with past practice, (c) Liens imposed by Law, including carriers’, warehousemen’s, landlords’ and mechanics’ liens, in each case incurred in the ordinary course of business consistent with past practice for sums not yet due or being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, (d) statutory Liens for Taxes, assessments or other governmental charges not yet due and payable or which are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP, and (e) non-exclusive licenses granted to third parties in the ordinary course of business by the Company or its Subsidiaries.
“Person” means any individual, corporation (including not-for-profit), general or limited partnership, limited liability company, joint venture, estate, trust, association, organization, Governmental Entity or other entity of any kind or nature.
“Real Estate Leases” means, collectively, each lease, sublease, license and other similar written agreement pursuant to which the Company or any of its Subsidiaries is granted the right to use or occupy, now or in the future, the Leased Real Property or any portion thereof, including any and all modifications, amendments and supplements thereto and any assignments thereof.
“Record Holder” means, with respect to any Shares, a Person who was, immediately prior to the Effective Time, the holder of record of such Shares.
“Regulatory Law” means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, any applicable foreign antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate (a) foreign investment, (b) foreign exchange or currency controls, or (c) actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
“Reimbursable Expenses” means all documented out-of-pocket expenses incurred by Parent and any of its Affiliates, as applicable, in connection with this Agreement and the transactions contemplated hereby (including, for the avoidance of doubt, any interest expense on any of the Debt Financing that is funded into escrow prior to the Closing Date and released as a result of the termination of this Agreement, net of any interest income on the escrowed proceeds of such Debt Financing and any non-reimbursable underwriting fee paid in connection therewith), in either case, up to a maximum aggregate amount of $[●].
“Representatives” means, as to any Person, its directors, officers, employees, agents and representatives acting on such Person’s behalf, including any such investment banker, financial advisor, attorney, accountant or other advisor, agent, representative, intermediary or Affiliate.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
“Subsidiary” means, with respect to any Person, any other Person of which at least a majority of the securities or ownership interests having by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.
“Superior Proposal” means a bona fide written Acquisition Proposal that is not solicited or received in connection with a violation of Section 5.2 and that the Company Board has concluded in its good faith judgment, after consultation with its independent financial advisor and outside legal counsel, and taking into consideration, among other things, all of the terms, conditions, impact and all legal, financial, regulatory, fiduciary and other aspects of such Acquisition Proposal and this Agreement (in each case taking into account any changes to this Agreement or the transactions contemplated hereby (or any other proposals) made or proposed in writing by Parent prior to the time of determination), including financing, regulatory approvals, stockholder litigation, breakup fee and expense reimbursement provisions and other events or circumstances beyond the control of the party invoking the condition, (a) is reasonably likely to be consummated in accordance with its terms and (b) if consummated, would result in a transaction more favorable to the Company’s stockholders from a financial point of view than the transactions contemplated by this Agreement (after taking into account the expected timing and risk and likelihood of consummation); provided, that for purposes of the definition of “Superior Proposal,” the references to “20%” in the definition of Acquisition Proposal shall be deemed to be references to “80%” and any transaction described in clause (a) of the definition of Acquisition Proposal must result in a third party acquiring all of the outstanding Shares or all or substantially all of the assets of the Company and its Subsidiaries taken as a whole.
“Takeover Statutes” means any “moratorium,” “control share acquisition,” “fair price,” “supermajority,” “affiliate transactions” or “business combination statute or regulation” or similar state antitakeover Law.
“Tax” (including, with correlative meaning, the term “Taxes”) means all federal, state, local and foreign income, profits, franchise, gross receipts, environmental, customs duty, capital stock, severance, stamp, payroll, sales, employment, unemployment, disability, use, unclaimed property or escheat obligation, ad valorem, real or personal property, withholding, excise, production, value added, goods and services, transfer, license, occupation, premium, windfall profits, social security (or similar), registration, alternative or add-on minimum, estimated, occupancy and other taxes, duties, fees, governmental charges or other assessments of any nature whatsoever, whether disputed or not, together with all interest, penalties and additions imposed with respect to such amounts and any interest in respect of such penalties and additions, and including any obligations to indemnify or otherwise assume or succeed to the Tax liability of any other Person.
“Tax Return” means all returns and reports (including elections, declarations, disclosures, schedules, claims for refund, statements, estimates, information returns and other similar documents) required to be supplied to a Governmental Entity relating to Taxes, including any attachments thereto and any amendments thereof.
(b) Construction. The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. Where a reference in this Agreement is made to a Section or Exhibit, such reference shall be to a Section of or Exhibit to this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation.” Terms defined in the text of this Agreement as having a particular meaning have such meaning throughout this Agreement, except as otherwise indicated in this Agreement. The fact that any item of information is disclosed in a Disclosure Letter to this Agreement shall not be construed to mean that such information is required to be disclosed by this Agreement. The mere listing (or inclusion of a copy) of a Contract or other document or item shall not be adequate to disclose an exception to a representation, warranty or covenant made in this Agreement, except to the extent such representation, warranty or covenant calls only for the listing (or inclusion of a copy) of such Contract or other document or other item itself. The phrase “made available,” when used in reference to anything made available to Parent, Merger Sub or their Representatives, shall be deemed to mean uploaded to and made available to Parent, Merger Sub and their Representatives in the on-line data room hosted by [●] on behalf of the Company.
8.11. Severability. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity or enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any Person or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other Persons or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction.
8.12. Assignment. Except as provided in Section 7.5(b) and 7.5(c), neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other parties; provided, that Parent and Merger Sub may assign this Agreement (in whole but not in part) to any Affiliate of Parent and/or to any Financing Sources for purposes of creating a security interest herein or otherwise assign as collateral in respect of the Financing. No assignment by any party hereto shall relieve such assigning party of any of its obligations hereunder. Subject to the foregoing, this Agreement will be binding upon, inure to the benefit of and be enforceable by the parties and their respective permitted successors and assigns.
8.13. Headings. The table of contents and headings herein are for convenience of reference only, do not constitute part of this Agreement and shall not be deemed to limit or otherwise affect any of the provisions hereof.
8.14. Delivery by Facsimile or Electronic Transmission. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments or waivers hereto or thereto, to the extent signed and delivered by means of a facsimile machine or by e-mail delivery of a “.pdf” format data file, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or e-mail delivery of a “.pdf” format data file to deliver a signature to this Agreement or any amendment hereto or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or e-mail delivery of a “.pdf” format data file as a defense to the formation of a contract and each party hereto forever waives any such defense.
[Signature Page Follows]
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.
INTEGRATED DEVICE TECHNOLOGY, INC.
By:
Name:
Title:
SUN PARENT, INC.
By:
Name:
Title:
SUN MERGER SUB, INC.
By:
Name:
Title: