MRV COMMUNICATIONS, INC. (NASDAQ:MRVC) Files An 8-K Completion of Acquisition or Disposition of AssetsItem 2.01
The Offer and withdrawal rights expired as scheduled at 12:00 midnight, Eastern Time, at the end of the day, August 11, 2017 (such date and time, the “Expiration Time”), without being extended. American Stock Transfer & Trust Company, LLC, the depositary for the Offer (the “Depositary”), has advised that, as of the Expiration Time, a total of 5,296,053 Shares had been validly tendered and not properly withdrawn to the Offer, representing approximately 79% of the aggregate number of then issued and outstanding Shares. Accordingly, the Minimum Condition to the Offer has been satisfied. As a result of the satisfaction of the Minimum Condition and each of the other conditions to the Offer, Purchaser has accepted for payment all Shares that were validly tendered and not properly withdrawn to the Offer. The Depositary has advised that, as of the Expiration Time, there were no Shares that have been tendered by Notice of Guaranteed Delivery.
On August 14, 2017, to the terms of the Merger Agreement and in accordance with Section 251(h) of the Delaware General Corporation Law (“DGCL”), Merger Sub was merged with and into MRV, with MRV being the surviving corporation (the “Merger”). Upon completion of the Merger, MRV became a wholly-owned subsidiary of Parent, which in turn is a wholly-owned subsidiary of ADVA Optical Networking SE, a European public limited liability company incorporated in Germany and organized under the laws of Germany and the European Union and registered in the commercial register of the local court of Jena, Germany, under HRB 508155 (“ADVA SE”).
At the effective time of the Merger (the “Effective Time”), and as a result of, the Merger and to the terms and subject to the conditions of the Merger Agreement, each Share issued and outstanding immediately prior to the Effective Time was converted into the right to receive the Offer Price, in cash, without interest thereon and subject to any required tax withholding (the “Merger Consideration”), other than (1) Shares held by MRV as treasury stock or owned by ADVA SE, Merger Sub, Parent or any subsidiary of MRV; and (2) Shares held by stockholders entitled to, who demanded appraisal of their Shares and who otherwise validly exercised their appraisal rights under the DGCL with respect to such Shares and did not withdraw their demand or lose their right to appraisal.
In addition, at the Effective Time, any then outstanding option to acquire Shares granted under a MRV equity incentive plan (an “Option”) whether or not then otherwise vested or exercisable, were cancelled in exchange for the right of the holder of such Option to receive a cash amount equal to the product of (i) the total number of Shares then still covered by the Option multiplied by (ii) the excess, if any, of (A) the Merger Consideration over (B) the exercise price per Share under such Option, without any interest thereon and subject to applicable tax withholding; provided that if the exercise price per share under any such Option was equal to or greater than the Merger Consideration, such Option was canceled immediately prior to the Effective Time without any payment or other consideration being made or owed in respect thereof. Further, immediately prior to the Effective Time, each then outstanding share of restricted stock issued to a MRV Stock Plan became fully vested and participated in the Merger on the same basis as any other outstanding Shares.
In addition, at the Effective Time, in accordance with the terms of that certain Warrant Agreement, dated as of July 16, 2013, as amended (the “Warrant Agreement”), by and between the Company, and American Stock Transfer & Trust Company, LLC, as warrant agent, each outstanding warrant issued under the Warrant Agreement was terminated in accordance with the terms of the Warrant Agreement, and the warrant holder received, upon surrender of such warrant in accordance with the Warrant Agreement, an amount in cash (the “Warrant Consideration”) equal to the greater of (A) the number of warrants tendered by such warrant holder multiplied by the amount by which the Offer Price exceeded the exercise price of such warrants; and (B) the number of warrants tendered by such warrant holder multiplied by the “value” of a warrant as of the date of consummation of the Merger, such “value” to be determined in accordance with the Black-Scholes Option Pricing Model.
The aggregate consideration paid by ADVA SE, Parent and Merger Sub in the Offer and Merger was approximately $69 million without giving effect to related transaction fees and expenses. ADVA SE, Parent and Merger Sub funded the consideration paid to stockholders in the Offer and to the Merger through ADVA SE’s and Parent’s internally available cash, cash from operations and cash from previous borrowings.
The foregoing summary description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the terms of the Merger Agreement, which is included as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 3.01 | Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing. |
In connection with the closing of the Merger, MRV notified the NASDAQ Stock Market (“NASDAQ”) on August 14, 2017 that the Merger was consummated, and trading of the common stock of MRV on NASDAQ has been suspended. Accordingly, NASDAQ has filed a notification of delisting of the Company’s common stock from NASDAQ and deregistration of MRV’s common stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) on Form 25 with the SEC. MRV intends to file a certification on Form 15 with the SEC to cause MRV’s reporting obligations under Sections 13 and 15(d) of the Exchange Act to be suspended.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information disclosed under Item 2.01 and Item 5.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.
| Item 5.01 | Changes in Control of Registrant. |
As a result of Merger Sub’s acceptance for payment on August 12, 2017 of all Shares that were validly tendered and not properly withdrawn in accordance with the terms of the Offer, and the consummation of the Merger to Section 251(h) of the DGCL on August 14, 2017, a change in control of MRV occurred and MRV now is a wholly-owned subsidiary of Parent.
The information disclosed under Item 2.01 and Item 3.01 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
to the terms of the Merger Agreement, at the Effective Time, the certificate of incorporation of MRV was amended and restated to read in its entirety as the certificate of incorporation attached as Exhibit B to the Merger Agreement and the by-laws of MRV were amended and restated to read in their entirety as the by-laws of Merger Sub in effect immediately prior to the Effective Time. The amended and restated certificate of incorporation and amended and restated bylaws of MRV are filed as Exhibits 3.1 and 3.2 hereto, respectively, and are incorporated by reference herein.
| Item 9.01. | Financial Statements and Exhibits. |
(d)Exhibits.
| ExhibitNo. | Description |
| 2.1 | Agreement and Plan of Merger, dated as of July 2, 2017, by and among MRV Communications, Inc., ADVA NA Holdings, Inc., and Golden Acquisition Corporation (incorporated by reference to Exhibit 2.1 of MRV Communications, Inc.’s Current Report on Form 8-K filed with the SEC on July 3, 2107) |
| 3.1 | Amended and Restated Certificate of Incorporation of MRV Communications, Inc. |
| 3.2 | Amended and Restated By-Laws of MRV Communications, Inc. |
MRV COMMUNICATIONS INC ExhibitEX-3.1 2 t1702379_ex3-1.htm EXHIBIT 3.1 Exhibit 3.1 AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF MRV COMMUNICATIONS,…To view the full exhibit click here
About MRV COMMUNICATIONS, INC. (NASDAQ:MRVC)
MRV Communications, Inc. (MRV) is a supplier of communications solutions to telecommunications service providers, enterprises and governments throughout the world. The Company’s products enable customers to provide high-bandwidth data, and video services and mobile communications services. The Company operates through Network Equipment segment. Its Network Equipment segment designs, manufactures, sells and services equipment used by commercial customers, governments and telecommunications service providers. Its products include switches, optical transport platforms, physical layer products and out-of-band management products, and specialized networking products. MRV markets and sells its products, through a range of channels, which include a direct sales force, manufacturers’ representatives, value-added-resellers, distributors and systems integrators. The Network Equipment business includes two business units: Optical Communications Systems division and Appointech, Inc.