The Offer is conditioned upon, among other things, (1) there being a number of Shares validly tendered (and not properly withdrawn) prior to the expiration of the Offer (but excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received,” as defined by Section 251(h)(6) of the Delaware General Corporation Law (“DGCL”)), together with the Shares then owned by Coach and its wholly-owned subsidiaries, represents at least one Share more than 50% of all Shares then outstanding (the “Minimum Condition”) and (2) expiration or termination of any applicable waiting period (any extensions thereof) and any approvals, clearances or other governmental authorizations applicable to the Offer or the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder and the Japanese Act on Prohibition of Private Monopolization and Maintenance of Fair Trade (Act No. 54 of April 14, 1947, as amended) (the “Japanese Anti-Monopoly Act”), shall have expired or otherwise been terminated or obtained, as applicable. The Offer is also subject to the other conditions described in the Offer to Purchase. There is no financing condition to the Offer.
Offeror is making the Offer pursuant to the Agreement and Plan of Merger, dated as of May 7, 2017 (as it may be amended from time to time, the “Merger Agreement”), by and among Coach, Offeror and Kate Spade. The Merger Agreement provides, among other things, that following the consummation of the Offer, Offeror will merge with and into Kate Spade (the “Merger”), with the separate corporate existence of Offeror ceasing and Kate Spade continuing as the surviving corporation and becoming a direct, wholly-owned subsidiary of Coach (the “Surviving Corporation”). Each Share issued and outstanding immediately prior to the effective time of the Merger (the “Merger Effective Time”) (excluding Shares owned by (i) Kate Spade (including treasury shares), Coach or any of their respective wholly-owned subsidiaries, which will be canceled automatically and will cease to exist, and no cash or other consideration will be delivered with respect thereto or (ii) stockholders of Kate Spade who properly demanded the appraisal of their respective Shares and exercised their appraisal rights in compliance with Section 262 of the DGCL) will be converted into a right to receive an amount in cash equal to the Offer Price (the “Merger Consideration”), payable without interest and less any applicable withholding taxes.
The board of directors of Kate Spade, among other things, has unanimously (i) declared that the Merger Agreement, the Merger and the other Transactions are fair to and in the best interests of Kate Spade and its stockholders, (ii) in accordance with the DGCL, approved the terms and conditions of the Merger Agreement and the Transactions, declared it advisable that Kate Spade enter into the Merger Agreement and consummate the Transactions, and authorized the execution, delivery and performance of the Merger Agreement, (iii) resolved that the Merger Agreement and the Merger shall be governed by and effected under Section 251(h) of the DGCL and (iv) resolved to recommend that Kate Spade’s stockholders accept the Offer and tender their Shares in the Offer. As further described in its Solicitation/Recommendation Statement on Schedule 14D-9, Kate Spade has informed us that, to its knowledge after making reasonable inquiry, all of Kate Spade’s executive officers and directors currently intend to tender all of the Shares that they hold of record or beneficially own in the Offer.
The Offer will expire at 11:59 p.m., New York City time, on June 23, 2017, unless the Offer is extended or earlier terminated (such time and date, as it may be extended, the “Expiration Time”). If, on any then-scheduled Expiration Time, any of the conditions of the Offer have not been satisfied or waived (to the extent permitted by applicable law), Offeror will extend the Offer on one or more occasions in consecutive increments of not more than ten business days each (or such other period as Coach, Offeror and Kate Spade may agree) in order to permit the satisfaction of the conditions of the Offer; provided that if all the conditions of the Offer have been satisfied other than the Minimum Condition, Offeror shall not be required to extend the Offer by more than twenty additional business days in the aggregate, until the earlier of (1) the date on which all of the conditions of the Offer are satisfied or waived (to the extent permitted by applicable law), (2) the date on which the Merger Agreement is terminated in accordance with its terms and (3) February 7, 2018. Notwithstanding the foregoing, Offeror will extend the Offer for any period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission, or its staff. During any extension of the Offer, all Shares previously validly tendered and not properly withdrawn will remain subject to the Offer and subject to the rights of a tendering stockholder to withdraw such stockholder’s Shares.
If Offeror extends the Offer, Offeror will make a public announcement of such extension or provision by no later than 9:00 a.m., New York City time, on the next business day after the Expiration Time.
Offeror expressly reserves the right to waive (to the extent permitted by applicable law) any condition to the Offer or modify the terms of the Offer, except that, without the prior written consent of Kate Spade, Offeror
