UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 


 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d) of

the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported)

October 29, 2015

 


 

OMNIVISION TECHNOLOGIES, INC.

(Exact name of registrant as specified in its charter)

 

Delaware

 

000-29939

 

77-0401990

(State or other jurisdiction of
incorporation)

 

(Commission File Number)

 

(IRS Employer
Identification No.)

 

4275 Burton Drive

Santa Clara, California 95054

(Address of principal executive offices, including zip code)

 

(408) 567-3000

(Registrant’s telephone number, including area code)

 

 

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

o

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

o

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

o

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

o

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

 

 



 

Section 1 — Registrant’s Business and Operations

Item 1.01                                                 Entry into a Material Definitive Agreement.

 

On April 30, 2015, OmniVision Technologies, Inc. (“OmniVision”), Seagull International Limited (“Investor”), a wholly owned subsidiary of Seagull Investment Holdings Limited (“Investor Parent”), and Seagull Acquisition Corporation, a wholly owned subsidiary of Investor (“Acquisition Sub”), entered into an Agreement and Plan of Merger (as it may be amended from time to time, the “Merger Agreement”), providing for the merger of Acquisition Sub with and into OmniVision (the “Merger”), with OmniVision surviving the Merger as a wholly owned subsidiary of Investor.  Capitalized terms used but not defined herein shall have their meanings set forth in the Merger Agreement, which was previously filed as Exhibit 2.1 to OmniVision’s Form 8-K covering Items 1.01 and 9.01, filed on April 30, 2015.

 

On October 30, 2015, OmniVision, Investor and Acquisition Sub entered into the first amendment to the Merger Agreement (the “Amendment”).  Pursuant to the terms and conditions of the Merger Agreement and the Amendment, each Company Option that is unvested and outstanding as of immediately prior to the Effective Time and each Vested Out-of-the-Money Option will be assumed and converted into an option to purchase shares of Investor Parent (an “Investor Parent Option”).  As a result of the Amendment, the number of shares of Investor Parent subject to each Investor Parent Option will equal the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time.  The new exercise price of each Investor Parent Option will be determined by subtracting from the per-share exercise price for the shares of Company Common Stock otherwise purchasable pursuant to the Company Option immediately prior to the Effective Time an amount equal to the difference between the Merger Consideration and the fair market value of a share of Investor Parent as of the Effective Time, with the result rounded up to the nearest whole cent.

 

In addition, the Amendment extends the deadline to repay OmniVision’s indebtedness under the Loan and Security Agreement, dated March 16, 2007 (as amended from time to time), by and between OmniVision and Citibank N.A.

 

The Amendment also modifies certain customary covenants regarding the operation of the business of OmniVision and its subsidiaries.

 

The foregoing summary of the terms of the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Amendment, which is attached hereto as Exhibit 2.1 and is incorporated by reference herein.

 

Section 8 — Other Events

Item 8.01.                            Other Events

 

On October 29, 2015, OmniVision elected to extend the termination date specified in the Merger Agreement until January 31, 2016.  Except as otherwise described herein, no other provisions of the Merger Agreement were otherwise amended or waived, and the Merger Agreement remains in full force and effect.

 

The proposed acquisition remains subject to the receipt of certain foreign antitrust and regulatory approvals, as well as other customary closing conditions. OmniVision expects the proposed acquisition to close in the third or fourth fiscal quarter of fiscal year 2016.

 

Section 9 — Financial Statements and Exhibits

Item 9.01.                                             Financial Statements and Exhibits.

 

(d)   Exhibits.

 

Exhibit
No.

 

Description

 

 

 

2.1*

 

Amendment No. 1 to the Agreement and Plan of Merger, dated as of October 30, 2015

 


*Schedules and annexes have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or annex will be furnished supplementally to the Securities and Exchange Commission upon request.

 

2



 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, hereunto duly authorized.

 

Date: November 3, 2015

 

OMNIVISION TECHNOLOGIES, INC.

 

 

 

 

By:

/s/ Y. VICKY CHOU

 

 

Y. Vicky Chou
Senior Vice President of Global Management and General Counsel

 

3



 

EXHIBIT INDEX

 

Exhibit
No.

 

Description

 

 

 

2.1*

 

Amendment No. 1 to the Agreement and Plan of Merger, dated as of October 30, 2015

 


*Schedules and annexes have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule and/or annex will be furnished supplementally to the Securities and Exchange Commission upon request.

 

4




Exhibit 2.1

 

AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER

 

This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made and entered into as of October 30, 2015, by and among Seagull International Limited, a Cayman Islands exempted limited company (“Investor”), Seagull Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of Investor (“Acquisition Sub”), and OmniVision Technologies, Inc., a Delaware corporation (the “Company”).

 

WHEREAS, Investor, Acquisition Sub and the Company are parties to that certain Agreement and Plan of Merger, dated as of April 30, 2015 (the “Merger Agreement”).

 

WHEREAS, Investor, Acquisition Sub and the Company desire to amend the Merger Agreement and schedules thereto to reflect certain understandings as set forth below.

 

NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Investor, Acquisition Sub and the Company hereby agree as follows:

 

Section 1.              Section 2.7(d).  Section 2.7(d) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

 

(d)           Company Options.  Each Company Option that (i) is unvested and outstanding as of immediately prior to the Effective Time shall, as of the Effective Time, or (ii) is vested and outstanding as of immediately prior to the Effective Time and (A) has a per share exercise price that is greater than or equal to the Merger Consideration, and (B) is held by an employee, director or consultant of the Company who is providing services to the Company as of immediately prior to the Effective Time (each such Company Option, a “Vested Out-of-the-Money Option”) shall be assumed and converted into an option to purchase, on the same terms and conditions as were applicable to such Company Option immediately prior to the Effective Time, the number of shares of Investor Parent equal to the number of shares of Company Common Stock that were issuable upon exercise of such Company Option immediately prior to the Effective Time, at an exercise price per share of Investor Parent, determined by subtracting from the per-share exercise price for the shares of Company Common Stock otherwise purchasable pursuant to the Company Option immediately prior to the Effective Time an amount equal to the difference between the Merger Consideration and the fair market value of a share of Investor Parent as of the Effective Time, with the result rounded up to the nearest whole cent (each such option, an “Investor Parent Option”).  In addition, each Company Option held by a U.S. taxpayer shall be adjusted as required by Section 409A of the Code and the Treasury Regulations thereunder, so as not to constitute a modification, extension or renewal of the option, within the meaning of the Treasury Regulations under Section 409A of the Code.  Each Company Option that is vested and outstanding as of immediately prior to the Effective Time (other than a Vested Out-of-the-Money-Option) shall be cancelled and terminated as of the Effective Time, and each holder of each such Company Option shall receive, subject to Section

 



 

2.8(e), an amount in cash (without interest), if any, equal to the product obtained by multiplying (x) the aggregate number of shares of Company Common Stock that were issuable upon exercise of such vested Company Option immediately prior to the Effective Time, by (y) the excess of the amount of the Merger Consideration less the per share exercise price of such Company Option (the “Vested Option Consideration”) (it being understood and agreed that such exercise price shall not actually be paid to the Company by the holder of a Company Option).  The Company shall take all actions reasonably necessary to deliver all required notices under all Company Option agreements and any other plan or arrangement of the Company.  For avoidance of doubt, the Company shall not take any action that would accelerate the vesting of the Company Options in connection with any of the transactions contemplated by this Agreement, except to the extent directed by Investor in Investor’s sole discretion between the date of this Agreement and the Effective Time, in which case the Company shall cause the vesting of any such Company Options to occur on or immediately prior to the Effective Time.  Within three (3) Business Days after the Closing, Investor shall pay by wire transfer of immediately available funds to the Surviving Corporation, and Investor shall cause the Surviving Corporation to pay to each of the holders of vested Company Options, the applicable Vested Option Consideration (less any applicable withholding taxes payable in respect thereof) as promptly as practicable (and in no event later than the next regular payroll date) thereafter.

 

Section 2.              Section 6.18(b).  Section 6.18(b) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

 

(b)           As soon as reasonably practicable but in any event no later than the earlier of (i) 15 days after Investor delivers a written notice to the Company confirming that all closing conditions set forth in Section 7.1(b)(ii) have been satisfied and (ii) the Closing, the Company shall repay and extinguish in full, with its own funds, all Indebtedness outstanding under the Loan and Security Agreement, dated March 16, 2007 (as amended from time to time), by and between the Company and Citibank N.A. (the “Citi Loan Agreement”) and shall use reasonable best efforts to cause the lender under the Citi Loan Agreement to execute all documents, take all actions, and deliver to Investor termination statements and mortgage releases that, when executed, carried out, filed or recorded, as the case may be, will be necessary to release any and all Liens relating to the Citi Loan Agreement.

 

Section 3.              Schedule 5.1(b).  Schedule 5.1(b) to the Merger Agreement is hereby amended and restated in its entirety to read as set forth in Schedule 5.1(b) attached hereto.

 

Section 4.              Company Disclosure Letter.  In connection with the execution and delivery of this Amendment, the Company has delivered to Investor a supplement to the Company Disclosure Letter, which shall be deemed to have amended the Company Disclosure Letter delivered by the Company to Investor on the date of the Merger Agreement.

 

Section 5.              Effect on Merger Agreement.  Except as expressly set forth herein, the Merger Agreement shall remain in full force and effect in accordance with its terms.  This Amendment is hereby deemed a part of the Merger Agreement, the terms of which are incorporated herein by this reference.

 

2



 

Section 6.              Miscellaneous.  The provisions of Article IX (General Provisions) of the Merger Agreement shall apply mutatis mutandis to this Amendment.

 

Section 7.              Severability.  In the event that any provision of this Amendment, or the application thereof, becomes or is declared by a court of competent jurisdiction to be illegal, void or unenforceable, the remainder of this Amendment will continue in full force and effect and the application of such provision to other Persons or circumstances will be interpreted so as reasonably to effect the intent of the parties hereto.  The parties hereto further agree to replace such void or unenforceable provision of this Amendment with a valid and enforceable provision that will achieve, to the extent possible, the economic, business and other purposes of such void or unenforceable provision.

 

Section 8.              Governing Law.  This Amendment shall be governed by and construed in accordance with the Laws of the State of Delaware, regardless of the Laws that might otherwise govern under applicable principles of conflicts of law thereof.

 

Section 9.              Counterparts; Facsimile or .pdf Signature.  This Amendment may be executed in two or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties, it being understood that all parties need not sign the same counterpart.  This Amendment may be executed by facsimile or .pdf signature, and a facsimile or .pdf signature shall constitute an original for all purposes.

 

[Remainder of Page Intentionally Left Blank]

 

3



 

IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed by their respective duly authorized representatives to be effective as of the date first above written.

 

 

SEAGULL INTERNATIONAL LIMITED

 

 

 

 

 

By:

/s/ JI Zhen

 

 

 

 

Name: JI Zhen

 

 

 

Title: Authorized Signatory

 

 

 

 

 

SEAGULL ACQUISITION CORPORATION

 

 

 

 

 

By:

/s/ JI Zhen

 

 

 

 

Name: JI Zhen

 

 

 

Title: Authorized Signatory

 

 

 

 

 

OMNIVISION TECHNOLOGIES, INC.

 

 

 

 

 

By:

/s/ Henry Yang

 

 

 

 

Name: Henry Yang

 

 

 

Title: Chief Operating Officer

 

[AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER
by and among
SEAGULL INTERNATIONAL LIMITED,
SEAGULL ACQUISITION CORPORATION

and
OMNIVISION TECHNOLOGIES, INC.]

 


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