CDC Software isn’t happy about losing out to M2M Holdings for acquiring Onyx Software and has sent letters to the board of directors of Onyx and to the Securities and Exchange Commission to bolster its case for acquisition and is threatening to take the matter to court.
In the letters CDC Software reiterated its proposed “superior competing transaction” announced on June 20, 2006. The company said unusually high breakup fees, estimated at $0.24 per Onyx share may be a conflict of interest in the agreement with M2M and that the fees should be abandoned so that the fees can be paid to Onyx shareholders rather than to M2M. CDC Software is an Onyx shareholder.
CDC Software is prepared to challenge the breakup fees in court, if M2M enters into a definitive agreement with Onyx. The company is awaiting a reply from the independent directors of Onyx and ready to commence negotiations.
In the letter to the Securities and Exchange Commission, CDC Software
expresses its concern that Onyx may have failed to adequately consider
prior proposals from CDC Software because M2M Holdings intends to keep the current Onyx management in place.
Here is a copy of the letter:
* CDC Letter to ONYX
June 21, 2006
The Board of Directors
Onyx Software Corporation
1100 112th Avenue Northeast
Suite 100
Bellevue, Washington 98004
Ladies and Gentlemen:
We are writing to reiterate the terms of our proposal to acquire Onyx Software Corporation.
We are prepared to offer Onyx shareholders $5.00 per share comprised of 50% cash and 50% registered Class A Common Shares of CDC Corporation.
The Share portion of our offer would be protected by a ”collar” such that Onyx shareholders would be protected against a decrease in CDC Share value of more than $0.50. Our offer is not subject to any financing contingency.
We are prepared to increase our offer if we are afforded reasonable due diligence, and that diligence indicates such an increase. In addition, the ”mix” of considerations also remains negotiable.
We have attached to this letter a standard form of confidentiality agreement which we are prepared to execute with Onyx immediately. We think it appropriate that the confidentiality agreement protects Onyx’s confidential business information without restricting our ability to address Onyx shareholders directly. We are prepared to commence our due diligence promptly upon execution of this confidentiality agreement. In the event Onyx believes the attached standard form of confidentiality agreement is materially less favorable to Onyx than the confidentiality agreement it has entered into with M2M, then please submit to us the form of confidentiality agreement Onyx has entered into with M2M for our review and consideration.
We believe that our proposal constitutes a Superior Competing Transaction under your Merger Agreement with M2M Holdings Inc. We do not believe Onyx has seriously considered our prior offers and we note that Loeb Partners Corporation, a significant shareholder, stated its concurrence with this belief in its April 20, 2006 13D filing. We believe that the Onyx Board’s fiduciary duties mandate that the Board immediately commence negotiation with us on our $5.00 per share offer.
As an Onyx shareholder, we were deeply troubled with the size of the break-fees and expense obligations which significantly dissuades competing bids and limit the premium a competing bidder can offer to Onyx’s shareholders. Rather than using such amounts to benefit shareholders, the Onyx board has in effect decided to line the pockets of M2M and, by dissuading competing bids, existing Onyx management who keep their positions after the acquisition.
The merger agreement provides for the payment of up to $4.5 million in fees and expenses from Onyx to M2M in connection with the termination of the merger agreement in the event Onyx enters into an agreement for a superior competing transaction. Based upon approximately 18.5 million Onyx shares outstanding, the break-fees and expenses Onyx would be required to pay to M2M amount to in excess of $0.24 per Onyx share.
We believe this excessive break up fee and expense reimbursement provision should be abandoned, and the $0.24 per share should be distributed to Onyx shareholders. If we enter into a merger agreement with you, we are prepared in that connection to take legal action to challenge the fees for the benefit of shareholders. In other words, if the court strikes down the breakup fees, we will pay the $0.24 per share to the shareholders, enhancing our already superior offer.
We stand ready to commence negotiation of our superior competing offer immediately.
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