<PAGE> 1
OFFER TO PURCHASE FOR CASH
ALL OF THE OUTSTANDING SHARES OF COMMON STOCK
(INCLUDING THE ASSOCIATED RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK)
OF
CERPROBE CORPORATION
AT
$20 NET PER SHARE
BY
CARDINAL MERGER SUB., INC.
A WHOLLY OWNED SUBSIDIARY OF
KULICKE AND SOFFA INDUSTRIES, INC.
THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT,
NEW YORK CITY TIME, ON TUESDAY, NOVEMBER 21, 2000,
UNLESS THE OFFER IS EXTENDED.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN A NUMBER OF SHARES OF COMMON STOCK, PAR VALUE $0.05
PER SHARE (THE "COMMON STOCK"), TOGETHER WITH THE ASSOCIATED RIGHTS TO PURCHASE
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK (THE "RIGHTS" AND, COLLECTIVELY
WITH THE COMMON STOCK, THE "SHARES"), OF CERPROBE CORPORATION (THE "COMPANY"),
REPRESENTING AT LEAST A MAJORITY OF THE OUTSTANDING SHARES. THE CONSUMMATION OF
THE OFFER IS ALSO SUBJECT TO THE OTHER CONDITIONS DESCRIBED IN THIS OFFER TO
PURCHASE. SEE SECTION 13.
THE OFFER IS BEING MADE UNDER AN AGREEMENT AND PLAN OF MERGER, DATED AS OF
OCTOBER 11, 2000 (THE "MERGER AGREEMENT"), BY AND AMONG KULICKE AND SOFFA
INDUSTRIES, INC., CARDINAL MERGER SUB., INC. AND THE COMPANY. THE BOARD OF
DIRECTORS OF THE COMPANY, BY UNANIMOUS VOTE AT A MEETING HELD ON OCTOBER 11,
2000, DETERMINED THAT THE TERMS OF THE OFFER AND THE MERGER (EACH AS DEFINED IN
THIS OFFER TO PURCHASE) ARE FAIR TO, AND IN THE BEST INTERESTS OF, THE
STOCKHOLDERS OF THE COMPANY, APPROVED THE OFFER, THE MERGER AND THE OTHER
TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND APPROVED THE MERGER
AGREEMENT. THE BOARD OF DIRECTORS OF THE COMPANY RECOMMENDS THAT THE COMPANY'S
STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES IN THE OFFER.
IMPORTANT
Any stockholder desiring to tender all or any portion of such stockholder's
Shares should (1) complete and sign the Letter of Transmittal or a facsimile of
the letter in accordance with the instructions in the Letter of Transmittal,
including any required signature guarantees, and mail or deliver the Letter of
Transmittal or such facsimile with such stockholder's certificate(s) for the
tendered Shares and any other required documents to the Depositary named in this
Offer to Purchase, (2) follow the procedures for book-entry tender of Shares
described in Section 3, or (3) request such stockholder's broker, dealer,
commercial bank, trust company or other nominee to effect the transaction for
such stockholder. Stockholders having Shares registered in the name of a broker,
dealer, commercial bank, trust company or other nominee must contact such
broker, dealer, commercial bank, trust company or other nominee if they desire
to tender Shares so registered.
The Rights are presently evidenced by the certificates for the Common Stock
and a tender by a stockholder of such stockholder's Shares will also constitute
a tender of the associated Rights. Unless the context otherwise requires, all
references to Shares in this Offer to Purchase shall include the associated
Rights. A stockholder of the Company who desires to tender Shares and whose
certificates for such Shares are not immediately available, or who cannot comply
with the procedure for book-entry transfer on a timely basis, may tender such
Shares by following the procedures for guaranteed delivery set forth in Section
3.
Questions and requests for assistance may be directed to the Information
Agent or the Dealer Manager at their respective addresses and telephone numbers
set forth on the back cover of this Offer to Purchase. Requests for additional
copies of this Offer to Purchase, the Letter of Transmittal, the Notice of
Guaranteed Delivery and other tender offer materials may be directed to the
Information Agent or the Dealer Manager. Stockholders may also contact their
broker, dealer, commercial bank, trust company or other nominee.
The Dealer Manager for the Offer is:
[GEORGESON SHAREHOLDER LOGO]
October 25, 2000
<PAGE> 2
SUMMARY TERM SHEET
This summary highlights important information from this Offer to Purchase
but does not purport to be complete. To fully understand the offer described in
this document and for a more complete description of the terms of the offer, you
should read carefully this entire Offer to Purchase and the Letter of
Transmittal, which together, as they may be amended and supplemented, constitute
the "Offer." We have included section references to direct you to a more
complete description of the topics contained in this summary.
- WHO IS OFFERING TO BUY MY SECURITIES?
Our name is Cardinal Merger Sub., Inc. We are a Delaware corporation and a
wholly owned subsidiary of Kulicke and Soffa Industries, Inc. formed for the
purpose of making this tender offer for all the outstanding Shares. See
Section 9 of this document for more information about us and Kulicke and Soffa
Industries, Inc.
- WHAT ARE THE CLASSES AND AMOUNTS OF SECURITIES SOUGHT IN THE OFFER?
We are offering to buy all of the outstanding Shares, including the associated
Rights, of Cerprobe Corporation. See the "Introduction" and Section 1 of this
document for more information about the terms of the Offer, and Section 13 of
this document for more information about the conditions to which the Offer is
subject.
- HOW MUCH IS CARDINAL MERGER SUB., INC. OFFERING TO PAY AND WHAT IS THE FORM OF
PAYMENT?
We are offering to pay $20 in cash for each Share, including the associated
Rights, of Cerprobe Corporation. See the "Introduction" and Section 1 of this
document for more information about the terms of the Offer.
- DO YOU HAVE THE FINANCIAL RESOURCES TO MAKE PAYMENT?
Yes. Kulicke and Soffa Industries, Inc., our parent, will be financing the
Offer described in this document with funds provided by Kulicke and Soffa
Industries, Inc. See Section 12 of this document for more information about
how Kulicke and Soffa Industries, Inc. will finance the Offer.
- ARE KULICKE AND SOFFA INDUSTRIES, INC.'S FINANCIAL RESULTS RELEVANT TO MY
DECISION AS TO WHETHER TO TENDER IN THE OFFER?
Because the Offer is for cash and is not subject to any financing condition,
Kulicke and Soffa Industries, Inc.'s financial results should not be relevant
to your decision on whether to tender your Shares in the Offer.
- HOW LONG DO I HAVE TO DECIDE WHETHER TO TENDER IN THE INITIAL OFFERING PERIOD?
You may tender your Shares into the Offer until 12:00 midnight, New York City
time, on Tuesday, November 21, 2000, which is the scheduled expiration date of
the offering period, unless we decide to extend the offering period or provide
a subsequent offering period. See Sections 1 and 3 of this document for more
information about tendering your Shares.
- CAN THE OFFER BE EXTENDED, AND UNDER WHAT CIRCUMSTANCES?
Yes, we can elect to extend the Offer (1) on one or more occasions, each for a
period not longer than 5 business days at any one time and not longer than 10
business days in total, if on November 21, 2000 (A) any of the conditions to
our obligations to accept for payment and pay for the Shares shall not have
been satisfied or waived, or (B) a number of Shares representing at least a
majority but less than 90% of the total number of outstanding Shares shall
have then been validly tendered and not withdrawn, or (2) for any period
required by any rule, regulation, interpretation or position of the Securities
and
i
<PAGE> 3
Exchange Commission (the "SEC") applicable to the Offer. See Section 1 of this
document for more information about extensions of the Offer.
- HOW WILL I BE NOTIFIED IF THE OFFER IS EXTENDED?
We will announce by press release any extension of the Offer no later than
9:00 a.m., New York City time, on the next business day after the previously
scheduled expiration date. See Section 1 of this document for more information
about extension of the Offer.
- WILL THERE BE A SUBSEQUENT OFFERING PERIOD?
Following the satisfaction or waiver of all the conditions to the Offer and
the acceptance of and payment for all the Shares tendered during the offering
period, we may elect to provide a subsequent offering period, although we
currently have no intention to do so. If we decide to provide a subsequent
offering period, we will publicly disclose our intentions by issuing a press
release no later than 9:00 a.m., New York City time, on the next business day
after the expiration date of the initial offering period. Any such press
release will state the approximate number of Shares tendered to date. See
Section 1 of this document for more information about subsequent offering
periods.
- WHAT ARE THE MOST SIGNIFICANT CONDITIONS TO THE OFFER?
The Offer is conditioned upon, among other things, at least a majority of the
total number of outstanding Shares being validly tendered and not withdrawn
and the expiration or termination of the applicable waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended. The Offer is
also subject to other conditions. See Section 13 of this document for more
information on all of the conditions to which the Offer is subject.
- HOW DO I TENDER MY SHARES?
If you hold the certificates for your Shares, you should complete the enclosed
Letter of Transmittal and enclose all the documents required by it, including
your certificates, and send them to the Depositary at the address listed on
the back cover of this document. If your broker holds your Shares for you in
nominee or "street" name you must instruct your broker to tender your Shares
on your behalf. In any case, the Depositary must receive all required
documents before 12:00 midnight, New York City time, on Tuesday, November 21,
2000, which is the expiration date of the Offer, unless we decide to extend
the Offer. If you cannot comply with any of these procedures, you still may be
able to tender your Shares by using the guaranteed delivery procedures
described in Section 3 of this document. See Section 3 of this document for
more information on the procedures for tendering your Shares.
- UNTIL WHAT TIME CAN I WITHDRAW PREVIOUSLY TENDERED SHARES?
You may withdraw the tender of your Shares at any time before the expiration
date of the offering period, including any extensions. There will, however, be
no withdrawal rights for Shares tendered during any subsequent offering
period. See Section 4 of this document for more information on withdrawing
your previously tendered Shares.
- HOW DO I WITHDRAW PREVIOUSLY TENDERED SHARES?
You (or your broker or bank if your Shares were held in nominee or "street"
name), must notify the Depositary at the address and telephone number listed
on the back cover of this Offer to Purchase, and this notice must include the
name of the stockholder that tendered the Shares, the number of Shares to be
withdrawn and the name in which the tendered Shares are registered. See
Section 4 of this document for more information about the procedures for
withdrawing your previously tendered Shares.
ii
<PAGE> 4
- WHAT DOES MY BOARD OF DIRECTORS THINK OF THE OFFER?
THE BOARD OF DIRECTORS OF CERPROBE CORPORATION, BY UNANIMOUS VOTE AT A MEETING
HELD ON OCTOBER 11, 2000, DETERMINED THAT THE TERMS OF THE OFFER AND THE
MERGER ARE FAIR TO, AND IN THE BEST INTEREST OF, THE STOCKHOLDERS OF CERPROBE
CORPORATION, APPROVED THE OFFER, THE MERGER AND THE OTHER TRANSACTIONS
CONTEMPLATED BY THE MERGER AGREEMENT AND APPROVED THE MERGER AGREEMENT. THE
BOARD OF DIRECTORS RECOMMENDS THAT CERPROBE CORPORATION STOCKHOLDERS ACCEPT
THE OFFER AND TENDER THEIR SHARES IN THE OFFER. SEE THE "INTRODUCTION" AND
SECTION 10 OF THIS DOCUMENT FOR MORE INFORMATION ON YOUR DIRECTORS' ACTIONS
REGARDING THE MERGER AGREEMENT.
- IF YOU CONSUMMATE THE TENDER OFFER, WHAT ARE YOUR PLANS WITH RESPECT TO SHARES
THAT ARE NOT TENDERED IN THE OFFER?
If we purchase at least a majority of the Shares in the Offer, we intend to
cause a merger to occur between ourselves and Cerprobe Corporation in which
stockholders who have not previously tendered their Shares will also receive
$20 in cash, subject to their right under Delaware law to dissent and demand
the fair cash value of their Shares. If a majority of the Shares are not
tendered to us in the Offer, we do not presently intend to acquire any Shares.
See Section 11 of this document about our plans following our purchase of
Shares in the Offer with respect to Shares not tendered in the Offer.
- IF I DECIDE NOT TO TENDER, HOW WILL THE OFFER AFFECT MY SHARES?
Our purchase of the Shares will reduce the number of the Shares that might
otherwise trade publicly and may reduce the number of holders of the Shares,
which could adversely affect the liquidity and market value of the remaining
Shares held by the public. The Shares may also cease to be quoted on the
Nasdaq Stock Market. Also, Cerprobe Corporation may cease being required to
comply with the SEC's filing requirements and other rules relating to publicly
held companies. See Section 7 of this document for more information about the
effect of the Offer on your Shares.
- WHAT IS THE MARKET VALUE OF MY SHARES AS OF A RECENT DATE?
On October 11, 2000, the last full trading day before the public announcement
of the Offer and the Merger, the reported closing price of the Common Stock on
the Nasdaq Stock Market was $12.50 per Share. On October 24, 2000, the last
full trading day for which prices were available before the commencement of
the Offer, the reported closing price of the Common Stock on the Nasdaq Stock
Market was $19.6875 per Share. You should obtain a recent market quotation for
your Shares in deciding whether to tender them. See Section 6 of this document
for recent high and low sales prices for the Shares.
- WHO IS RESPONSIBLE FOR THE PAYMENT OF TAXES AND BROKERAGE FEES?
Stockholders of record who tender Shares directly will not be obligated to pay
brokerage fees or commissions or, except as set forth in Instruction 6 of the
Letter of Transmittal, stock transfer taxes on the purchase of the Shares by
us under the Offer. However, any tendering stockholder or other payee who
fails to complete and sign the Substitute Form W-9 included in the Letter of
Transmittal may be subject to backup federal income tax withholding of 31% of
the gross proceeds payable to such stockholder or other payee under the Offer.
See Section 3. Stockholders who hold their Shares through a broker, bank or
other nominee should check with such institution as to whether they charge any
service fees.
- WHO CAN I TALK TO IF I HAVE QUESTIONS ABOUT THE TENDER OFFER?
If you have any questions you can call the Information Agent, Corporate
Investor Communications, Inc. at (888) 682-7239 (toll free) or the Dealer
Manager, Georgeson Shareholder Securities Corporation at (800) 445-1790 (toll
free). See the back cover of this Offer to Purchase.
iii
<PAGE> 5
TABLE OF CONTENTS
<TABLE>
<CAPTION>
SECTION PAGE
------- ----
<S> <C> <C>
SUMMARY TERM SHEET.................................................... i
INTRODUCTION.......................................................... 1
1. Terms of the Offer.......................................... 2
2. Acceptance for Payment and Payment for the Shares........... 5
3. Procedure for Tendering Shares.............................. 5
4. Rights of Withdrawal........................................ 8
5. Certain Federal Income Tax Consequences of the Offer........ 9
6. Price Range of the Shares................................... 10
7. Effect of the Offer on the Market for the Shares; Stock
Quotation, Margin Regulations and Exchange Act
Registration................................................ 10
8. Certain Information Concerning the Company.................. 11
9. Certain Information Concerning Parent and the Merger Sub.... 13
10. Background of the Offer; Contacts with the Company.......... 14
11. Purpose of the Offer; Plans for the Company; the Merger..... 16
12. Source and Amount of Funds.................................. 31
13. Certain Conditions of the Offer............................. 31
14. Dividends and Distributions................................. 33
15. Certain Legal Matters....................................... 34
16. Fees and Expenses........................................... 35
17. Miscellaneous............................................... 35
SCHEDULE A INFORMATION CONCERNING DIRECTORS AND EXECUTIVE
OFFICERS OF KULICKE AND SOFFA INDUSTRIES, INC. AND THE MERGER SUB..... A-1
</TABLE>
iv
<PAGE> 6
TO THE STOCKHOLDERS OF CERPROBE CORPORATION:
INTRODUCTION
Cardinal Merger Sub., Inc., a Delaware corporation (the "Merger Sub") and a
wholly owned subsidiary of Kulicke and Soffa Industries, Inc., a Pennsylvania
corporation ("Parent"), hereby offers to purchase all of the outstanding shares
of Common Stock, par value $0.05 per share (the "Common Stock"), of Cerprobe
Corporation, a Delaware corporation (the "Company"), together with the
associated rights to purchase Series A Junior Participating Preferred Stock (the
"Rights") issued under the Rights Agreement, dated as of September 28, 1998 (the
"Rights Agreement"), between the Company and Computershare Trust Company, Inc.
(as successor in interest to American Securities Transfer & Trust, Inc.), as
amended by the First Amendment thereto dated October 11, 2000 (the Common Stock
and the Rights are together referred to as the "Shares"), at $20 per Share, net
to the seller in cash (including any higher price per share that may be paid in
the Offer, the "Common Stock Price"), upon the terms and subject to the
conditions set forth in this Offer to Purchase and in the related Letter of
Transmittal (which, together with any amendments or supplements, collectively
constitute the "Offer"). Tendering stockholders who are record holders of their
Shares and tender directly to Harris Trust Company of New York (the
"Depositary") will not be obligated to pay brokerage fees or commissions or,
subject to Instruction 6 of the Letter of Transmittal, stock transfer taxes on
the purchase of the Shares by the Merger Sub under the Offer. Stockholders who
hold their Shares through a broker or bank should consult such institution as to
whether it will charge any service fees. The Merger Sub will pay all charges and
expenses of Georgeson Shareholder Securities Corporation, as dealer manager (the
"Dealer Manager"), the Depositary and Corporate Investor Communications, Inc.
(the "Information Agent"). Unless the context requires otherwise, all references
to the Shares in this Offer to Purchase shall also include the associated
Rights, and all references to the Rights shall include all benefits that may
inure to the holders of the Rights under the Rights Agreement.
The Offer is being made under an Agreement and Plan of Merger (the "Merger
Agreement"), dated as of October 11, 2000, among Parent, the Merger Sub and the
Company, in accordance with which, and subject to its terms and conditions, at
the Effective Time (as defined below) in accordance with the Delaware General
Corporation Law (the "DGCL"), the Merger Sub will be merged with and into the
Company and the separate existence of the Merger Sub will cease (the "Merger").
The Company thereafter will continue its existence under the laws of the State
of Delaware. As a result of the Merger, the Company (sometimes referred to
herein as the "Surviving Corporation") will become a wholly owned subsidiary of
Parent.
The Merger will become effective (i) upon the filing of a certificate of
merger with the Secretary of State of the State of Delaware under the DGCL or
(ii) at such later time as may be stated in such filing (such time, the
"Effective Time"). In the Merger, each issued and outstanding Share not owned by
Parent or any subsidiary of Parent (including the Merger Sub) or held in
treasury by the Company or any subsidiary of the Company, other than Shares, if
any, that are held by stockholders who are entitled to and who properly exercise
dissenters' rights under Section 262 of the DGCL, will, by virtue of the Merger
and without any action on the part of the holder, be converted into the right to
receive, without interest, an amount in cash equal to the Common Stock Price
(the "Merger Consideration").
Simultaneously with the execution of the Merger Agreement, Parent and the
Company entered into a Stock Option Agreement (the "Stock Option Agreement")
pursuant to which the Company granted Parent an option, exercisable in certain
circumstances following termination of the Merger Agreement, to purchase from
time to time up to that number of Shares equal to 19.9% of the total Shares
outstanding on October 11, 2000. In addition, Parent and eight stockholders of
the Company entered into separate Affiliate Tender Agreements (the "Affiliate
Tender Agreements") pursuant to which, among other things, such stockholders
agreed to tender all of their Shares into the Offer and otherwise to support the
Merger.
THE BOARD OF DIRECTORS OF THE COMPANY (THE "COMPANY BOARD"), BY UNANIMOUS
VOTE AT A MEETING HELD ON OCTOBER 11, 2000, DETERMINED THAT THE TERMS OF THE
OFFER AND THE MERGER ARE FAIR TO, AND IN THE
<PAGE> 7
BEST INTERESTS OF, THE STOCKHOLDERS OF THE COMPANY, APPROVED THE OFFER, THE
MERGER AND THE OTHER TRANSACTIONS CONTEMPLATED BY THE MERGER AGREEMENT AND
APPROVED THE MERGER AGREEMENT. THE COMPANY BOARD RECOMMENDS THAT THE COMPANY'S
STOCKHOLDERS ACCEPT THE OFFER AND TENDER THEIR SHARES IN THE OFFER.
BANC OF AMERICA SECURITIES LLC, FINANCIAL ADVISOR TO THE COMPANY, HAS
DELIVERED TO THE COMPANY BOARD ITS OPINION, DATED OCTOBER 11, 2000, TO THE
EFFECT THAT, AS OF SUCH DATE, AND BASED ON AND SUBJECT TO THE MATTERS SET FORTH
THEREIN, THE $20.00 PER SHARE IN CASH TO BE RECEIVED BY HOLDERS OF THE SHARES IN
THE OFFER AND THE MERGER IS FAIR FROM A FINANCIAL POINT OF VIEW TO SUCH HOLDERS.
A COPY OF THIS OPINION IS ATTACHED AS AN EXHIBIT TO THE COMPANY'S
SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 (THE "SCHEDULE 14D-9"),
WHICH HAS BEEN FILED BY THE COMPANY WITH THE SECURITIES AND EXCHANGE COMMISSION
(THE "SEC") IN CONNECTION WITH THE OFFER AND WHICH IS BEING MAILED TO
STOCKHOLDERS TOGETHER WITH THIS OFFER TO PURCHASE. STOCKHOLDERS ARE URGED TO
READ THE OPINION IN ITS ENTIRETY FOR A DESCRIPTION OF THE ASSUMPTIONS MADE,
MATTERS CONSIDERED AND LIMITATIONS OF THE REVIEW UNDERTAKEN BY BANC OF AMERICA
SECURITIES LLC.
THE OFFER IS CONDITIONED UPON, AMONG OTHER THINGS, THERE BEING VALIDLY
TENDERED AND NOT WITHDRAWN A NUMBER OF SHARES REPRESENTING AT LEAST A MAJORITY
OF THE OUTSTANDING SHARES (THE "MINIMUM CONDITION") AND THE APPLICABLE WAITING
PERIOD UNDER THE HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976, AS
AMENDED (THE "HSR ACT"), HAVING EXPIRED OR HAVING BEEN TERMINATED. THE OFFER IS
ALSO SUBJECT TO THE OTHER CONDITIONS SET FORTH IN THIS OFFER TO PURCHASE. SEE
SECTION 13.
ACCORDING TO THE COMPANY, AS OF SEPTEMBER 30, 2000 THERE WERE 9,489,760
SHARES OUTSTANDING AND THERE WERE 1,252,273 ADDITIONAL SHARES RESERVED FOR
FUTURE ISSUANCE UNDER GRANTS MADE UNDER THE COMPANY'S STOCK OPTION AND INCENTIVE
PLANS. BASED ON SUCH INFORMATION (IF NO ADDITIONAL OPTIONS WERE EXERCISED AFTER
THAT DATE), THE MINIMUM CONDITION WOULD BE SATISFIED IF 4,744,881 SHARES WERE
VALIDLY TENDERED AND NOT WITHDRAWN.
THIS OFFER TO PURCHASE AND THE RELATED LETTER OF TRANSMITTAL CONTAIN
IMPORTANT INFORMATION AND THEY SHOULD BE READ IN THEIR ENTIRETY BEFORE ANY
DECISION IS MADE WITH RESPECT TO THE OFFER.
1. TERMS OF THE OFFER.
Upon the terms and subject to the conditions set forth in the Offer
(including the terms and conditions set forth in Section 13 (the "Offer
Conditions") and, if the Offer is extended or amended, the terms and conditions
of such extension or amendment), the Merger Sub will accept for payment, and pay
for, all Shares validly tendered on or before the Expiration Date, as defined
herein, and not withdrawn as permitted by Section 4. The term "Expiration Date"
means 12:00 Midnight, New York City time, on November 21, 2000, unless and until
the Merger Sub shall have extended the period for which the Offer is open in
accordance with the Merger Agreement, in which event the term "Expiration Date"
will mean the latest time and date on which the Offer, as so extended by the
Merger Sub, will expire. The period from the date hereof until 12:00 Midnight,
New York City time, on November 21, 2000, as such period may be extended, is
referred to as the "Offering Period."
The Merger Sub may elect, in its sole discretion, to provide a subsequent
offering period of three to twenty business days (the "Subsequent Offering
Period"). For purposes of the Offer, a "business day" means any day other than a
Saturday, Sunday or federal holiday and consists of the time period from 12:01
a.m. through 12:00 midnight, New York City time. A Subsequent Offering Period,
if one is provided, would not be an extension of the Offering Period. A
Subsequent Offering Period would be an additional period of time, following the
expiration of the Offering Period, in which stockholders could tender Shares not
tendered during the Offering Period. Any decision to provide a Subsequent
Offering Period will be announced no later than 9:00 a.m., New York City time,
on the next business day after the expiration of the Offering Period. If the
Merger Sub elects to provide a Subsequent Offering Period, it expressly reserves
the right, in its sole discretion, at any time or from time to time, to extend
the Subsequent Offering Period, not beyond a total of 20 business days, by
giving oral or written notice of such
2
<PAGE> 8
extension to the Depositary. The Merger Sub will announce the approximate number
and percentage of the Shares deposited as of the expiration of the Offering
Period no later than 9:00 a.m., New York City time, on the next business day
following the expiration of the Offering Period, and such Shares, subject to the
satisfaction or waiver of all of the Offer conditions, will be immediately
accepted and promptly paid for. All Offer Conditions must be satisfied or waived
before the commencement of any Subsequent Offering Period, and the Offer
Conditions shall not apply to any Subsequent Offering Period.
The Rights presently are transferable only with the certificates for the
Shares, and the surrender for transfer of certificates for any Shares also
constitutes the transfer of the Rights associated with the Shares represented by
such certificates. As required by the Merger Agreement, the Company has taken
all necessary action so that as a result of the Offer and the Merger no Rights
will be entitled to be exercised, distributed or triggered.
The Offer is conditioned upon the satisfaction of the Minimum Condition,
the expiration or termination of the waiting period imposed by the HSR Act, and,
in most instances, the other conditions set forth in Section 13. If these
conditions are not satisfied at or before the Expiration Date, the Merger Sub
reserves the right, subject to the terms of the Merger Agreement and subject to
complying with applicable rules and regulations of the SEC, to (i) decline to
purchase any Shares tendered in the Offer and terminate the Offer and return all
tendered Shares to the tendering stockholders, (ii) waive any or all of the
Offer Conditions, other than the Minimum Condition and the condition that the
Merger Agreement shall not have been terminated under its terms, which
conditions may be waived only with the Company's consent, and, subject to
complying with applicable rules and regulations of the SEC, purchase all Shares
validly tendered, (iii) subject to the provisions of the next paragraph, extend
the Offer and, subject to the right of stockholders to withdraw Shares until the
Expiration Date, retain all Shares which have been tendered during the period or
periods for which the Offer is extended or (iv) subject to the provisions of
next paragraph, amend the Offer.
Under the Merger Agreement and the applicable rules of the SEC, the Merger
Sub has the right, in its sole discretion, to modify and make changes to the
terms and conditions of the Offer, provided that without the prior consent of
the Company (which consent will not be valid unless authorized by the Company
Board) no modification or change may be made which (i) decreases the
consideration payable in the Offer, except as permitted in the Merger Agreement,
(ii) changes the form of consideration payable in the Offer (other than by
adding consideration), (iii) changes the Minimum Condition, (iv) decreases the
maximum number of Shares sought under the Offer, (v) changes the material
conditions to the Offer in a manner adverse to the Company or its stockholders
or option holders, (vi) imposes additional conditions to the Offer, or, (vii)
except as described in the next sentence, extends the Offer if on the initial
Expiration Date all of the Offer Conditions have been satisfied or waived.
Notwithstanding the foregoing, the Merger Sub may, but is not required under the
Merger Agreement or otherwise to, without the consent of the Company, (i) extend
the Offer on one or more occasions for such period as may be determined by the
Merger Sub in its sole discretion (each such extension period not to exceed 5
business days at a time or an aggregate of 10 business days), if on the initial
Expiration Date (A) any of the Offer Conditions shall not be satisfied or
waived, or (B) the Minimum Condition has been satisfied but less than 90% of the
Shares have been validly tendered and not properly withdrawn, provided, that if
the Merger Sub elects to extend the Offer under this subclause (B), then all of
the Offer Conditions, other than conditions described in clauses (2) and (3) of
Section 13, will be deemed to have been irrevocably waived as of the
commencement of such extension, or (ii) extend the Offer for any period required
by any rule, regulation, interpretation or position of the SEC or the SEC staff
applicable to the Offer. The Offer Conditions are for the benefit of the Merger
Sub and may be waived by the Merger Sub (provided that the Merger Sub may not
waive the condition that the Merger Agreement shall not have terminated in
accordance with its terms or the Minimum Condition without the Company's
consent) in whole or in part at any time and from time to time, in its sole
discretion to the extent available, although the Merger Sub has no current
intention of availing itself of such right.
Subject to the terms of the Merger Agreement and applicable rules and
regulations of the SEC, the Merger Sub expressly reserves the right, in its sole
discretion, at any time or from time to time, to
3
<PAGE> 9
(i) extend the period of time during which the Offer is open and thereby delay
acceptance for payment of and the payment for any Shares, by giving oral or
written notice of such extension to the Depositary and (ii) amend the Offer in
any other respect by giving oral or written notice of such amendment to the
Depositary. UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE
FOR TENDERED SHARES, WHETHER OR NOT THE MERGER SUB EXERCISES ITS RIGHT TO EXTEND
THE OFFER.
Any extension, delay, waiver, amendment or termination of the Offer will be
followed as promptly as practicable by public announcement (which in the case of
an extension will be issued no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled Expiration Date) under Rules
14d-4(d), 14d-6(c) and 14e-1 under the Securities Exchange Act of 1934 (the
"Exchange Act"), which require that material changes be promptly disseminated to
holders of Shares. Subject to applicable law and without limiting the obligation
of the Merger Sub under such rules or the manner in which the Merger Sub may
choose to make any public announcement, the Merger Sub will not have any
obligation to publish, advertise or otherwise communicate any such public
announcement other than by making a press release or other public announcement.
If the Merger Sub extends the Offer, or if the Merger Sub, whether before
or after its acceptance for payment of Shares, is delayed in its purchase of, or
payment for, Shares or is unable to pay for Shares under the Offer for any
reason, then, without prejudice to the Merger Sub's rights under the Offer, the
Depositary may retain tendered Shares on behalf of the Merger Sub, and such
Shares may not be withdrawn except to the extent tendering security holders are
entitled to the withdrawal rights described in Section 4. However, the ability
of the Merger Sub to delay the payment for Shares which the Merger Sub has
accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which
requires that a bidder pay the consideration offered or return the securities
deposited by, or on behalf of, holders of securities promptly after the
termination or withdrawal of the Offer.
If the Merger Sub makes a material change in the terms of the Offer (which
may require authorization by the Company Board) or in the information concerning
the Offer or waives a material condition of the Offer, the Merger Sub will
disseminate additional tender offer materials and extend the Offer to the extent
required by Rules 14d-4(d), 14d-6(c) and 14e-1 under the Exchange Act. The
minimum period during which the Offer must remain open following material
changes in the terms of the Offer or information concerning the Offer, other
than a change in price or a change in percentage of securities sought, will
depend upon the facts and circumstances then existing, including the relative
materiality of the changed terms or information. In a public release, the SEC
has stated its view that an offer must remain open for a minimum period of time
following a material change in the terms of such offer and that waiver of a
material condition, such as the Minimum Condition, would be a material change in
the terms of such offer. The release states that an offer should remain open for
a minimum of five business days from the date a material change is first
published, or sent or given to securityholders and that, if material changes are
made with respect to information that approaches the significance of the offer
price and the number of shares being sought, a minimum of 10 business days may
be required to allow adequate dissemination and investor response. The
requirement to extend the Offer will not apply to the extent that the number of
business days remaining between the occurrence of the change and the then
scheduled Expiration Date equals or exceeds the minimum extension period that
would be required because of such amendment. If, before the Expiration Date, the
Merger Sub increases the consideration offered to holders of Shares under the
Offer, such increased consideration will be paid to all holders whose Shares are
purchased in the Offer, whether or not such Shares were tendered before such
increase.
The Company has provided the Merger Sub with the Company's stockholder
lists and security position listings for the purpose of disseminating the Offer
to holders of the Shares. This Offer to Purchase, the related Letter of
Transmittal and other relevant materials will be mailed by the Merger Sub to
record holders of the Shares and will be furnished by the Merger Sub to brokers,
dealers, banks, trust companies and similar persons whose names, or the names of
whose nominees, appear on the stockholder lists or, if applicable, who are
listed as participants in a clearing agency's security position listing, for
subsequent transmittal to beneficial owners of the Shares.
4
<PAGE> 10
2. ACCEPTANCE FOR PAYMENT AND PAYMENT FOR THE SHARES.
Upon the terms and subject to the conditions of the Offer, including the
Offer Conditions and, if the Offer is extended or amended, the terms and
conditions of any such extension or amendment, the Merger Sub will accept for
payment, and will pay for, all Shares validly tendered and not withdrawn
promptly after the expiration of the Offering Period. If there is a Subsequent
Offering Period, all Shares tendered during the Subsequent Offering Period will
be immediately accepted for payment and paid for as they are tendered.
For purposes of the Offer, the Merger Sub will be deemed to have accepted
for payment Shares validly tendered and not withdrawn as, if and when the Merger
Sub gives oral or written notice to the Depositary of its acceptance for payment
of such Shares under the Offer. Payment for any Shares accepted for payment in
the Offer will be made by deposit of the purchase price therefor with the
Depositary, which will act as agent for the tendering stockholders for the
purpose of receiving payments from the Merger Sub and transmitting such payments
to the tendering stockholders. In all cases, payment for any Shares accepted for
payment under the Offer will be made only after timely receipt by the Depositary
of (i) certificates for such Shares, or a timely Book Entry Confirmation, as
defined below, with respect thereto, (ii) the Letter of Transmittal, or a
manually signed facsimile, properly completed and duly executed, with any
required signature guarantees, or, in the case of a book-entry transfer, an
Agent's Message, as defined below, and (iii) any other documents required by the
Letter of Transmittal. Accordingly, payment may be made to tendering
stockholders at different times if delivery of the certificates and other
required documents occur at different times. The price paid to any holder of the
Shares under the Offer will be the highest price per Share paid to any other
holder of such Shares under the Offer.
UNDER NO CIRCUMSTANCES WILL INTEREST BE PAID ON THE PURCHASE PRICE FOR
TENDERED SHARES, REGARDLESS OF ANY EXTENSION OF THE OFFER OR ANY DELAY IN MAKING
SUCH PAYMENT.
If any tendered Shares are not accepted for payment under the terms and
conditions of the Offer for any reason, or if certificates are submitted for
more Shares than are tendered, certificates for such unpurchased Shares will be
returned, without expense, to the tendering stockholder or to such other person
as the tendering stockholder specified in the Letter of Transmittal, as promptly
as practicable following the expiration or termination of the Offer. In the case
of any Shares delivered by book-entry transfer into the Depositary's account at
the Book-Entry Transfer Facility, as defined below, under the procedures set
forth in Section 3, such Shares will be credited to such account maintained at
the Book-Entry Transfer Facility as the tendering stockholder specified in the
Letter of Transmittal, as promptly as practicable following the expiration or
termination of the Offer. If no such instructions are given with respect to any
Shares delivered by book-entry transfer, any such Shares not tendered or not
purchased will be returned by crediting the account at the Book-Entry Transfer
Facility designated in the Letter of Transmittal as the account from which such
Shares were delivered.
The Merger Sub reserves the right, subject to the terms of the Merger
Agreement, to transfer or assign in whole or in part from time to time to one or
more direct or indirect subsidiaries of Parent the right to purchase all or any
portion of the Shares tendered under the Offer, but any such transfer or
assignment will not relieve the Merger Sub of its obligations under the Offer
and will in no way prejudice the rights of tendering stockholders to receive
payment for any Shares validly tendered and accepted for payment under the
Offer.
3. PROCEDURE FOR TENDERING SHARES.
VALID TENDER. To tender Shares under the Offer, either (i) a Letter of
Transmittal, or a manually signed facsimile, properly completed and duly
executed in accordance with the instructions of the Letter of Transmittal,
together with any required signature guarantees and certificates for the Shares
to be tendered, or, in the case of a book-entry transfer, an Agent's Message,
and any other required documents must be received by the Depositary before the
Expiration Date or the expiration of any Subsequent Offering Period,
5
<PAGE> 11
at one of its addresses set forth on the back cover of this Offer to Purchase or
(ii) the tendering stockholder must comply with the guaranteed delivery
procedures set forth below.
The Rights presently are transferable only with the certificates for the
Shares and the surrender for transfer of certificates for any Shares also
constitutes the transfer of the Rights associated with the Shares represented by
such certificates. As required by the Merger Agreement, the Company has taken
all necessary action so that the Offer will not result in the grant of any
Rights or enable or require any Rights to be exercised, distributed or
triggered.
BOOK-ENTRY DELIVERY. The Depositary will establish accounts with respect
to the Shares at The Depository Trust Company (the "Book-Entry Transfer
Facility") for purposes of the Offer within two business days after the date of
this Offer to Purchase. Any financial institution that is a participant in the
Book-Entry Transfer Facility's systems may make book-entry transfer of Shares by
causing the Book-Entry Transfer Facility to transfer such Shares into the
Depositary's account in accordance with the Book-Entry Transfer Facility's
procedures for such transfer. However, although delivery of the Shares may be
effected through book-entry transfer, either the Letter of Transmittal, or a
manually signed facsimile, properly completed and duly executed, together with
any required signature guarantees, or an Agent's Message instead of the Letter
of Transmittal, and any other required documents, must, in any case, be
transmitted to and received by the Depositary at one of its addresses set forth
on the back cover of this Offer to Purchase by the Expiration Date or by the
expiration of any Subsequent Offering Period, or the tendering stockholder must
comply with the guaranteed delivery procedures described below. The confirmation
of a book-entry transfer of the Shares into the Depositary's account at the
Book-Entry Transfer Facility, as described above, is referred to herein as a
"Book-Entry Confirmation." The term "Agent's Message" means a message
transmitted by the Book-Entry Transfer Facility to, and received by, the
Depositary and forming a part of a Book-Entry Confirmation, which states that
the Book-Entry Transfer Facility has received an express acknowledgment from the
participant in the Book-Entry Transfer Facility tendering the Shares which are
the subject of such Book-Entry Confirmation, that such participant has received
and agrees to be bound by the terms of the Letter of Transmittal and that the
Merger Sub may enforce such agreement against the participant. DELIVERY OF
DOCUMENTS TO A BOOK-ENTRY TRANSFER FACILITY IN ACCORDANCE WITH SUCH BOOK-ENTRY
TRANSFER FACILITY'S PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE DEPOSITARY.
THE METHOD OF DELIVERY OF ANY SHARES, THE LETTER OF TRANSMITTAL AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH THE BOOK-ENTRY TRANSFER
FACILITY, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. SHARES WILL
BE DEEMED DELIVERED ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY, INCLUDING, IN
THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION. IF DELIVERY IS BY
MAIL, IT IS RECOMMENDED THAT THE STOCKHOLDER USE PROPERLY INSURED REGISTERED
MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE
ALLOWED TO ENSURE TIMELY DELIVERY.
SIGNATURE GUARANTEES. Except as otherwise provided below, all signatures
on a Letter of Transmittal must be guaranteed by a financial institution,
including most commercial banks, savings and loan associations and brokerage
houses, that is a participant in the Security Transfer Agents Medallion Program,
the New York Stock Exchange Medallion Signature Guarantee Program or the Stock
Exchange Medallion Program or by any other "eligible guarantor institution," as
such term is defined in Rule 17Ad-15 under the Exchange Act (each, an "Eligible
Institution"). Signatures on a Letter of Transmittal need not be guaranteed (a)
if the Letter of Transmittal is signed by the registered holder (which term, for
purposes of this section, includes any participant in the Book-Entry Transfer
Facility's systems whose name appears on a security position listing as the
owner of the Shares) of the Shares tendered therewith and such registered holder
has not completed the box entitled "Special Payment Instructions" or the box
entitled "Special Delivery Instructions" on the Letter of Transmittal or (b) if
such Shares are tendered for the account of an Eligible Institution. See
Instructions 1 and 5 of the Letter of Transmittal. If the certificates for any
Shares are registered in the name of a person other than the signer of the
Letter of Transmittal, or if payment is to be made or certificates for any
Shares not tendered or not accepted for payment are to be returned to a person
other than the registered holder of the certificates surrendered, then the
tendered certificates must be endorsed or accompanied by appropriate stock
powers, in either case signed exactly as the name or names of the registered
holders or owners appear on the certificates, with
6
<PAGE> 12
the signatures on the certificates or stock powers guaranteed as described
above. See Instructions 1 and 5 of the Letter of Transmittal.
GUARANTEED DELIVERY. A stockholder who desires to tender Shares under the
Offer and whose certificates for any Shares are not immediately available or who
cannot comply with the procedure for book-entry transfer on a timely basis, or
who cannot deliver all required documents to the Depositary before the
Expiration Date, may tender such Shares by following all of the procedures set
forth below:
(i) such tender is made by or through an Eligible Institution;
(ii) a properly completed and duly executed Notice of Guaranteed Delivery,
substantially in the form provided by the Merger Sub, is received by
the Depositary, as provided below, before the Expiration Date; and
(iii) the certificates for all tendered Shares, in proper form for
transfer, or a Book-Entry Confirmation with respect to all such
Shares, together with a properly completed and duly executed Letter
of Transmittal, or a manually signed facsimile, with any required
signature guarantees or, in the case of a book-entry transfer, an
Agent's Message instead of the Letter of Transmittal, and any other
required documents, are received by the Depositary within three
trading days after the date of execution of such Notice of Guaranteed
Delivery. A "trading day" is any day on which the Nasdaq Stock Market
is open for business.
The Notice of Guaranteed Delivery may be delivered by hand to the
Depositary or transmitted by telegram, facsimile transmission or mail to the
Depositary and must include a guarantee by an Eligible Institution in the form
set forth in such Notice of Guaranteed Delivery.
OTHER REQUIREMENTS. Notwithstanding any provision of this document,
payment for the Shares accepted for payment under the Offer will in all cases be
made only after timely receipt by the Depositary of the instruments and
documents referred to in Section 2.
TENDER CONSTITUTES AN AGREEMENT. The valid tender of any Shares under one
of the procedures described above will constitute a binding agreement between
the tendering stockholder and the Merger Sub upon the terms and subject to the
conditions of the Offer (including the tendering stockholder's rights of
withdrawal as described in Section 4).
APPOINTMENT. By executing a Letter of Transmittal as set forth above
(including delivery through an Agent's Message), the tendering stockholder will
(subject to the stockholder's withdrawal rights as described in Section 4)
irrevocably appoint designees of the Merger Sub as such stockholder's attorneys-
in-fact and proxies in the manner set forth in the Letter of Transmittal, each
with full power of substitution, to the full extent of such stockholder's rights
with respect to the Shares tendered by such stockholder and accepted for payment
by the Merger Sub and with respect to any and all non-cash dividends,
distributions, rights, and other shares of Common Stock or other securities
issued or issuable in respect of such Shares on or after October 11, 2000
(collectively, "Distributions"). All such proxies will be considered coupled
with an interest in the tendered Shares. Such appointment will be effective
when, and only to the extent that, the Merger Sub deposits the payment for such
Shares with the Depositary. All such powers of attorney and proxies will be
irrevocable and will be deemed granted in consideration of the acceptance for
payment by the Merger Sub of the Shares tendered in accordance with the terms of
the Offer. Upon the effectiveness of such appointment, all prior powers of
attorney, proxies and consents given by such stockholder will be revoked, and no
subsequent powers of attorney, proxies and consents may be given, and, if given,
will not be deemed effective. The Merger Sub's designees will be empowered to
exercise all voting and other rights of such stockholder with respect to such
Shares, and any and all Distributions, as they, in their sole discretion, may
deem proper at any annual, special or adjourned meeting of the stockholders of
the Company, with respect to any actions by written consent instead of any such
meeting or otherwise. The Merger Sub reserves the right to require that, in
order for any Shares to be deemed validly tendered, immediately upon the Merger
Sub's depositing the payment for such Shares with the Depositary, the Merger Sub
must be able to exercise full voting, consent and other rights with respect to
such Shares and any and all Distributions.
7
<PAGE> 13
DETERMINATION OF VALIDITY. All questions as to the validity, form,
eligibility (including time of receipt) and acceptance of any tender of the
Shares will be determined by the Merger Sub in its sole discretion, which
determination will be final and binding. The Merger Sub reserves the absolute
right to reject any and all tenders determined by it not to be in proper form or
the acceptance for payment of or payment for which may, in the opinion of the
Merger Sub's counsel, be unlawful. The Merger Sub also reserves the absolute
right to waive any defect or irregularity in the tender of any Shares of any
particular stockholder, whether or not similar defects or irregularities are
waived in the case of other stockholders. No tender of any Shares will be deemed
to have been validly made until all defects and irregularities relating thereto
have been cured or waived. None of Parent, the Merger Sub, the Depositary, the
Information Agent, the Dealer Manager or any other person will be under any duty
to give notification of any defects or irregularities in tenders or incur any
liability for failure to give any such notification. The Merger Sub's
interpretation of the terms and conditions of the Offer, including the Letter of
Transmittal and Instructions thereto, will be final and binding.
BACKUP WITHHOLDING. To avoid "backup withholding" of Federal income tax on
payments of cash under the Offer, a stockholder surrendering Shares in the Offer
must, unless an exemption applies, provide the Depositary with such
stockholder's correct taxpayer identification number ("TIN") on a Substitute
Form W-9 and certify under penalties of perjury that such TIN is correct and
that such stockholder is not subject to backup withholding. If a stockholder
does not provide such stockholder's correct TIN or fails to provide the
certifications described above, the Internal Revenue Service may impose a
penalty on such stockholder and payment of cash to such stockholder under the
Offer may be subject to backup withholding of 31%. All stockholders surrendering
Shares under the Offer should complete and sign the main signature form and the
Substitute Form W-9 included as part of the Letter of Transmittal to provide the
information and certification necessary to avoid backup withholding, unless an
applicable exemption exists and is proved in a manner satisfactory to the Merger
Sub and the Depositary. Certain stockholders, including, among others, all
corporations and certain foreign individuals and entities, are not subject to
backup withholding. Non-corporate foreign stockholders should complete and sign
the main signature form and a Form W-8, Certificate of Foreign Status, a copy of
which may be obtained from the Depositary, to avoid backup withholding. See
Instruction 8 to the Letter of Transmittal.
4. RIGHTS OF WITHDRAWAL.
Tenders of the Shares made under the Offer are irrevocable except that
Shares tendered under the Offer may be withdrawn at any time before the
expiration of the Offering Period and, unless theretofore accepted for payment
by the Merger Sub under the Offer, may also be withdrawn at any time after
December 24, 2000. There will be no withdrawal rights during any Subsequent
Offering Period for any Shares tendered during the Subsequent Offering Period.
For a withdrawal to be effective, a written, telegraphic, telex or
facsimile transmission notice of withdrawal must be timely received by the
Depositary at one of its addresses set forth on the back cover of this Offer to
Purchase. Any such notice of withdrawal must specify the name of the person
having tendered the Shares to be withdrawn, the number of the Shares to be
withdrawn and the names in which the certificate(s) evidencing the Shares to be
withdrawn are registered, if different from that of the person who tendered such
Shares. The signature(s) on the notice of withdrawal must be guaranteed by an
Eligible Institution, unless such Shares have been tendered for the account of
an Eligible Institution. If Shares have been tendered under the procedures for
book-entry tender as set forth in Section 3, any notice of withdrawal must
specify the name and number of the account at the Book-Entry Transfer Facility
to be credited with the withdrawn Shares. If certificates for the Shares to be
withdrawn have been delivered or otherwise identified to the Depositary, the
name of the registered holder and the serial numbers of the particular
certificates evidencing the Shares to be withdrawn must also be furnished to the
Depositary as aforesaid before the physical release of such certificates. All
questions as to the form and validity, including time of receipt, of any notice
of withdrawal will be determined by the Merger Sub, in its sole discretion,
which determination will be final and binding. None of Parent, the Merger Sub,
the Dealer Manager, the Depositary, the Information Agent, or any other person
will be under any duty to give
8
<PAGE> 14
notification of any defects or irregularities in any notice of withdrawal or
incur any liability for failure to give such notification. Withdrawals of
tendered Shares may not be rescinded, and any Shares properly withdrawn will be
deemed not to have been validly tendered for purposes of the Offer. However,
withdrawn Shares may be retendered by following one of the procedures described
in Section 3 at any time before the Expiration Date, or the expiration of any
Subsequent Offering Period.
If the Merger Sub extends the Offer, is delayed in its acceptance for
payment of any Shares, or is unable to accept for payment any Shares under the
Offer, for any reason, then, without prejudice to the Merger Sub's rights under
this Offer, the Depositary may, nevertheless, on behalf of the Merger Sub,
retain tendered Shares, but such Shares may be withdrawn to the extent that
tendering stockholders are entitled to withdrawal rights as set forth in this
Section 4. However, the ability of the Merger Sub to delay payment for Shares
which Merger Sub has accepted for payment is limited by Rule 14e-1(c) under the
Exchange Act, which requires that a bidder pay the consideration offered or
return the securities deposited by, or on behalf of, holders of securities
promptly after the termination or withdrawal of the Offer.
5. CERTAIN FEDERAL INCOME TAX CONSEQUENCES OF THE OFFER.
Sales of the Shares under the Offer and the exchange of the Shares for cash
under the Merger will be taxable transactions for Federal income tax purposes
and may also be taxable under applicable state, local and other tax laws. For
Federal income tax purposes, a stockholder whose Shares are purchased under the
Offer or who receives cash as a result of the Merger will realize gain or loss
equal to the difference between the adjusted basis of the Shares sold or
exchanged and the amount of cash received therefor. Such gain or loss will be
capital gain or loss if the Shares were held as capital assets by the
stockholder and will be long-term if the Shares have been held for more than 12
months. Long-term capital gain of a non-corporate stockholder is generally
subject to a maximum federal income tax rate of 20%.
THE INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED FOR GENERAL
INFORMATION ONLY AND MAY NOT BE APPLICABLE TO STOCKHOLDERS IN SPECIAL SITUATIONS
SUCH AS STOCKHOLDERS WHO RECEIVED THEIR SHARES UPON THE EXERCISE OF STOCK
OPTIONS OR OTHERWISE AS COMPENSATION AND STOCKHOLDERS WHO ARE NOT UNITED STATES
PERSONS. STOCKHOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH RESPECT TO THE
SPECIFIC TAX CONSEQUENCES TO THEM OF THE OFFER AND THE MERGER, INCLUDING THE
APPLICATION AND EFFECT OF FEDERAL, STATE, LOCAL, FOREIGN OR OTHER TAX LAWS.
9
<PAGE> 15
6. PRICE RANGE OF THE SHARES.
The Shares are listed on the Nasdaq Stock Market under the symbol "CRPB."
The following table sets forth, for the calendar quarters indicated, the high
and low sales prices per Share on the Nasdaq Stock Market based on public
sources:
<TABLE>
<CAPTION>
SALES PRICE
--------------
HIGH LOW
---- ---
<S> <C> <C>
CALENDAR YEAR
1998
First Quarter............................................. $22 $16 1/4
Second Quarter............................................ $20 9/16 $11 5/8
Third Quarter............................................. $12 3/4 $ 9
Fourth Quarter............................................ $15 5/8 $ 9
1999
First Quarter............................................. $17 13/16 $12 3/4
Second Quarter............................................ $12 1/4 $ 7 1/2
Third Quarter............................................. $11 7/8 $ 4 3/4
Fourth Quarter............................................ $10 $ 4 9/16
2000
First Quarter............................................. $16 7/8 $ 7 1/4
Second Quarter............................................ $16 1/2 $ 7 1/4
Third Quarter............................................. $21 $12 1/2
</TABLE>
On October 11, 2000, the last full trading day before the public
announcement of the Offer and the Merger, the reported closing price on the
Nasdaq Stock Market was $12.50 per Share. On October 24, 2000, the last full
trading day before commencement of the Offer, the reported closing price was
$19.6875 per Share. STOCKHOLDERS ARE URGED TO OBTAIN A CURRENT MARKET QUOTATION
FOR THE SHARES. During the periods set forth above, the Company did not pay any
dividends on its shares of Common Stock. The Merger Agreement and, according to
the Company, the Company's revolving credit facility prohibit or otherwise limit
the Company's ability to pay dividends on its Shares. See Section 14 for a
description of these limitations.
7. EFFECT OF THE OFFER ON THE MARKET FOR THE SHARES; STOCK QUOTATION, MARGIN
REGULATIONS AND EXCHANGE ACT REGISTRATION.
MARKET FOR THE SHARES. The purchase of any Shares by the Merger Sub under
the Offer will reduce the number of the Shares that might otherwise trade
publicly and may reduce the number of holders of the Shares, which could
adversely affect the liquidity and market value of the remaining Shares held by
the public.
STOCK QUOTATION. The Shares are listed on the Nasdaq Stock Market.
According to published guidelines of the Nasdaq Stock Market, the Shares would
no longer be quoted on the Nasdaq Stock Market if, among other things, the
number of publicly held Shares (excluding Shares held directly or indirectly by
officers, directors and any person who is a beneficial owner of more than 10% of
the Shares) were less than 500,000, the aggregate market value of publicly held
Shares were less than $1,000,000 or there were fewer than 300 holders of the
Shares in round lots. If these standards were not met, quotations might continue
to be published in the over-the-counter "additional list" or one of the "local
lists" unless, as set forth in published guidelines of the Nasdaq Stock Market,
the number of publicly held Shares were less than 100,000, or there were fewer
than 300 holders in total.
If the Shares cease to be listed on Nasdaq Stock Market, the market for the
Shares could be adversely affected. It is possible that the Shares would be
traded on other securities exchanges, with trades published by such exchanges,
or in local or regional over-the-counter markets. The extent of the public
10
<PAGE> 16
market for the Shares and the availability of such quotations would, however,
depend upon the number of holders of Shares and the aggregate market value of
the Shares remaining at such time, the interest in maintaining a market in the
Shares on the part of securities firms, the possible termination of registration
of the Shares under the Exchange Act, as described below, and other factors.
MARGIN REGULATIONS. The Shares are presently "margin securities" under the
regulations of the Board of Governors of the Federal Reserve Board (the "Federal
Reserve Board"), which has the effect, among other things, of allowing brokers
to extend credit based on the collateral of such Shares. Depending upon factors
similar to those described above regarding listing and market quotations, the
Shares might no longer constitute "margin securities" for the purposes of the
Federal Reserve Board's margin regulations in which event the Shares would be
ineligible as collateral for margin loans made by brokers.
EXCHANGE ACT REGISTRATION. The Shares are currently registered under the
Exchange Act. This registration may be terminated by the Company upon
application to the SEC if the outstanding Shares are not listed on a national
securities exchange and if there are fewer than 300 holders of record of such
shares. Termination of registration of the Shares under the Exchange Act would
reduce the information required to be furnished by the Company to its
stockholders and to the SEC and would make certain provisions of the Exchange
Act, such as the short-swing profit recovery provisions of Section 16(b) and the
requirement to furnish a proxy statement in connection with stockholders'
meetings under Section 14(a) and the related requirement to furnish an annual
report to stockholders, no longer applicable with respect to the Shares.
Furthermore, the ability of "affiliates" of the Company and persons holding
"restricted securities" of the Company to dispose of such securities under Rule
144 under the Securities Act of 1933, as amended, may be impaired or eliminated.
If registration of the Shares under the Exchange Act were terminated, the Shares
would no longer be eligible for listing on the Nasdaq Stock Market or for
continued inclusion on the Federal Reserve Board's list of "margin securities."
The Merger Sub intends to seek to cause the Company to apply for termination of
registration of the Shares as soon as possible after consummation of the Offer
if the requirements for termination of registration are met. If registration of
the Shares is not terminated before the Merger, then the registration of such
Shares under the Exchange Act and the listing of such Shares on the Nasdaq Stock
Market will be terminated following the completion of the Merger.
8. CERTAIN INFORMATION CONCERNING THE COMPANY.
Except as otherwise set forth herein, the information concerning the
Company contained in this Offer to Purchase has been taken from or based upon
publicly available documents and records on file with the SEC and other public
sources and is qualified in its entirety by reference thereto. Although the
Merger Sub, Parent and the Dealer Manager have no knowledge that would indicate
that any statements contained herein based on such documents and records are
untrue, Parent, the Merger Sub and the Dealer Manager cannot take responsibility
for the accuracy or completeness of the information contained in such documents
and records, or for any failure by the Company to disclose events which may have
occurred or may affect the significance or accuracy of any such information but
which are unknown to Parent, the Merger Sub or the Dealer Manager.
The Company is a leading manufacturer of probe cards, automatic test
equipment ("ATE") interface assemblies, ATE test boards, and test
sockets/contactors. The Company has grown its business and expanded its product
lines through internal product development, strategic acquisitions, joint
development/ ventures and licensing of technologies.
The Company was incorporated in California in 1976 and reincorporated in
Delaware in 1987. The Company maintains its principal executive offices at 1150
North Fiesta Boulevard, Gilbert, Arizona 85233 and its telephone number is (480)
333-1500.
AVAILABLE INFORMATION. The Shares are currently registered under the
Exchange Act. Accordingly, the Company is subject to the information filing
requirements of the Exchange Act and is required to file periodic reports, proxy
statements, and other information with the SEC relating to its business,
financial condition and other matters. Information, as of particular dates,
concerning the Company's directors and
11
<PAGE> 17
officers, including their remuneration, stock options granted to them, and
Shares held by them, the principal holders of the Company's securities, and any
material interest of those persons in transactions with the Company is required
to be disclosed in proxy statements and annual reports distributed to the
Company's stockholders and filed with the SEC. Such reports, proxy statements,
and other information are available for inspection and copying at the public
reference facilities of the SEC located at 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the regional offices of the SEC located at 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661, and Seven World Trade Center, Suite
1300, New York, New York 10048. Copies of this material may also be obtained by
mail, upon payment of the SEC's customary fees, from the SEC's principal office
at 450 Fifth Street, N.W., Washington, D.C. 20549. The SEC also maintains an
Internet site on the World Wide Web at "http://www.sec.gov" that contains
reports, proxy statements, and other information.
SUMMARY FINANCIAL INFORMATION. Set forth below is certain summary
consolidated financial information for each of the Company's last three full
fiscal years, as contained in the Company's annual report on Form 10-K for the
fiscal year ended December 31, 1999 (the "Company 10-K"), as well as unaudited
financial information for the nine month period ended September 30, 2000, as
contained in the Company's press release, dated October 18, 2000, of financial
results for the 3 and 9 months ended September 30, 2000. Parent and the Merger
Sub make no representation as to the accuracy of such financial information.
More comprehensive financial information is included in the Company 10-K and
other documents filed by the Company with the SEC, including the financial
information and related notes contained therein, and the following summary is
qualified in its entirety by reference to such reports and other documents and
all of the financial information and notes contained therein. Such reports and
other documents may be examined and copies may be obtained from the SEC in the
manner set forth above.
CERPROBE CORPORATION
SELECTED CONSOLIDATED FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ------------------------------
2000 1999 1998 1997
------------- -------- ------- -------
(UNAUDITED)
<S> <C> <C> <C> <C>
INCOME STATEMENT DATA
Revenues....................................... $92,521 $62,656 $76,207 $69,012
Income (loss) from continuing operations before
income taxes and minority interest........... $10,772 $(14,831) $9,306 $12,443
Net income (loss).............................. $5,862 $(12,581) $(496) $1,896
Net income (loss) per common share:
Basic........................................ $0.33 $(1.60) $(0.06) $0.28
Diluted...................................... $0.31 $(1.60) $(0.06) $0.27
BALANCE SHEET DATA (AT PERIOD END):
Current assets................................. $40,551 $32,820 $36,929 $49,599
Total assets................................... $86,428 $83,368 $63,686 $68,108
Current liabilities............................ $19,795 $21,008 $6,410 $7,095
Total liabilities and minority interest........ $27,151 $30,251 $10,212 $8,764
Total Stockholders' equity..................... $59,277 $53,117 $53,474 $59,344
</TABLE>
OTHER FINANCIAL INFORMATION. During the course of the discussions and
information exchange between Parent and the Company that led to the execution of
the Merger Agreement, the Company provided Parent with information about the
Company and its financial performance which is not publicly available. The
information provided included financial projections for the Company as an
independent
12
<PAGE> 18
company for fiscal years 2000 and 2001 (i.e., without regard to the impact on
the Company of a transaction with Parent and the Merger Sub) and the Company's
budget for fiscal year 2000. The financial projections included, among other
things, the following forecasts of the Company's consolidated revenues and net
income, respectively (in millions): in 2000, $124 and $7; and in 2001, $160 and
$15.
The Company has advised Parent and the Merger Sub that it does not as a
matter of course make public any projections as to future performance or
earnings, and the above projections are included in this Offer to Purchase
solely because such information was provided to Parent during the course of
Parent's evaluation of the Company. The projections were not prepared with a
view to public disclosure or in compliance with the published guidelines of the
SEC or the guidelines established by the American Institute of Certified Public
Accountants regarding projections or forecasts. The Company has advised Parent
and the Merger Sub that (i) its internal operating projections are, in general,
prepared solely for internal use and capital budgeting and other management
decisions and are subjective in many respects and thus susceptible to various
interpretations and periodic revision based on actual experience and business
developments and (ii) the projections were based on a number of internal
assumptions with respect to industry performance, general business, economic,
market and financial conditions and other matters that are inherently subject to
significant economic and competitive uncertainties, all of which are difficult
to predict and some of which are beyond the control of the Company. Accordingly,
there can be no assurance, and no representation or warranty is or has been made
by any of the Company, Parent, the Merger Sub or any of their representatives,
that actual results will not vary materially from those described above.
The foregoing information is forward-looking in nature and inherently
subject to significant uncertainties and contingencies, including industry
performance, general business and economic conditions, currency exchange rates,
customer requirements, competition, adverse changes in applicable laws,
regulations or rules governing environmental, tax and accounting matters and
other matters. The inclusion of this information should not be regarded as an
indication that the Company, Parent, the Merger Sub or anyone who received this
information then considered, or now considers, it a reliable prediction of
future events, and this information should not be relied on as such. These
estimates and assumptions may not be realized and are inherently subject to
significant business, economic, and competitive uncertainties, many of which are
beyond the control of the Company. Therefore, there can be no assurance that the
projections will prove to be reliable estimates of probable future performance.
It is quite likely that actual results will vary materially from these
estimates. In light of the uncertainties inherent in projections of any kind,
the inclusion of projections in this Offer to Purchase should not be regarded as
a representation by any party that the estimated results will be realized. There
can be no assurances in this regard. None of the Company, Parent, the Merger Sub
or any other person assumes any responsibility for the validity, reasonableness,
accuracy or completeness of the projections described above. Further, none of
the Company, Parent, the Merger Sub or any other person intends to, and each of
them disclaims any obligation to, update, revise or correct such projections if
they are or become inaccurate, even in the short term. The projections have not
been adjusted to reflect the effects of the Offer or the Merger.
9. CERTAIN INFORMATION CONCERNING PARENT AND THE MERGER SUB.
Parent designs, manufactures and markets capital equipment and packaging
materials for sale to companies that manufacture and assemble semiconductor
devices. Parent also services, maintains, repairs and upgrades assembly
equipment. Parent's business is divided into three segments: equipment,
packaging materials and advanced packaging technology. Parent's principal
product line is its family of wire bonders, which are used to connect extremely
fine wires, typically made of gold or aluminum, between the bonding pads on the
die and the leads on the integrated circuit (IC) package to which the die has
been attached. In addition to wire bonders, Parent produces and distributes
other types of semiconductor assembly equipment, including wafer dicing saws and
die bonders, flip chip assembly systems and factory automation and integration
systems. Parent offers a range of packaging materials to semiconductor device
assemblers which Parent sells under the brand names "American Fine Wire"
"Micro-Swiss," and "Semitec." Parent
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<PAGE> 19
was incorporated in Pennsylvania in 1956. Parent's principal offices are located
at 2101 Blair Mill Road, Willow Grove, Pennsylvania 19090. Parent's telephone
number is (215) 784-6000.
The Merger Sub is a Delaware corporation and to date has engaged in no
activities other than those incident to its formation and the commencement of
the Offer. The Merger Sub was incorporated in 2000, and its principal offices
are located at 2101 Blair Mill Road, Willow Grove, Pennsylvania 19090, and the
Merger Sub's telephone number is (215) 784-6000.
FINANCIAL INFORMATION OF PARENT. Parent is subject to the information
reporting requirements of the Exchange Act and in accordance therewith Parent is
obligated to file reports and other information with the SEC relating to its
business, financial condition and other matters. Information, as of particular
dates, concerning Parent's directors and officers, their remuneration, stock
options granted to them, the principal holders of Parent's securities, any
material interests of such persons in transactions with Parent and other matters
is required to be disclosed in proxy statements distributed to Parent's
stockholders and filed with the SEC. Such reports, proxy statements and other
information are available from the SEC at the addresses and through the website
described in Section 8.
OTHER INFORMATION REGARDING PARENT AND THE MERGER SUB. The name,
citizenship, business address, current principal occupation, including the name,
principal business and address of the organization in which such occupation is
conducted, and material positions held during the past five years (including the
name, principal business and address of the organization in which such positions
were held), of each of the directors and executive officers of Parent and the
Merger Sub are set forth in Schedule A to this Offer to Purchase.
None of Parent or the Merger Sub, or, to the best of their knowledge, any
of the persons listed in Schedule A hereto, nor any associate or majority-owned
subsidiary of any of the foregoing, beneficially owns or has a right to acquire
any Shares or has engaged in any transactions in the Shares in the past 60 days.
None of Parent or the Merger Sub has purchased any Shares during the past two
years. During the last five years, none of Parent or the Merger Sub nor, to the
best of their knowledge, any of the persons listed in Exhibit A, has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or has been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction as a result of which such person
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 violation with respect to such laws.
Except as set forth in Section 10, there have been no negotiations,
transactions or material contacts between Parent or the Merger Sub, or, to the
best of their knowledge, any of the persons listed in Schedule A hereto, on the
one hand, and the Company or its affiliates, on the other hand, concerning a
merger, consolidation or acquisition, a tender offer or other acquisition of
securities, an election of directors, or a sale or other transfer of a material
amount of assets. Except as described in Section 10, none of Parent or the
Merger Sub, or, to the best of their knowledge, any of the persons listed in
Schedule A hereto, has had any transaction with the Company or any of its
executive officers, directors or affiliates that would require disclosure under
the rules and regulations of the SEC applicable to the Offer.
10. BACKGROUND OF THE OFFER; CONTACTS WITH THE COMPANY.
Parent, through its involvement in the semiconductor packaging industry,
has always been aware of the critical importance of testing integrated circuits.
In the early part of 2000, Parent was approached by certain customers with
concerns related to technical difficulties they had encountered in their testing
of integrated circuits, and suggested that Parent develop solutions to their
difficulties. At this time, Parent was also considering whether to expand its
business strategically through acquisitions or otherwise. The combination of
these factors led Parent to begin the process of identifying potential strategic
partners in the semiconductor test interconnect industry. The Company was one of
several potential partners identified during this process.
14
<PAGE> 20
On March 16, 2000, Mr. James P. Spooner, Vice President of Corporate
Development for Parent, met with the senior management of the Company, including
C. Zane Close, President and Chief Executive Officer of the Company, at the
Company's Gilbert, Arizona headquarters to discuss industry related issues.
During this discussion, the possibility of a strategic partnership between
Parent and the Company was discussed, although no understanding was reached. In
contemplation of continuing discussions on the subject of a possible partnership
or joint venture, a confidentiality agreement was executed between Parent and
the Company. In March, 2000 at an industry conference, Mr. C. Scott Kulicke,
Chairman of the Board and Chief Executive Officer of Parent, was introduced to
Mr. Close. For the next several months, while Parent explored other potential
business opportunities, the parties exchanged limited financial and other
information. During this period there were periodic telephone conversations
between the Company and Parent regarding a potential strategic partnership.
In May, 2000, Parent decided to more actively consider acquisition
possibilities in the semiconductor test interconnect industry, and on May 17 and
18, 2000 conducted due diligence at the Company's Gilbert, Arizona,
headquarters. During this visit, on May 17, 2000, Parent delivered a
preliminary, non-binding letter indicating its interest, subject to due
diligence and the negotiation of definitive documentation, in acquiring the
Company in an all stock merger at a premium of approximately 30 to 40 percent
over the Company's then present market value. Following delivery of the May 17,
2000 letter, ongoing discussions regarding a potential business combination
continued while Parent conducted additional due diligence investigations,
including visits to the Company's facilities in California, France, Singapore,
Scotland and Taiwan in June of 2000. During these continuing discussions and due
diligence investigations, on June 5, 2000, Parent forwarded to the Company a
proposed form of Merger Agreement, and on June 16, 2000, the Company provided
Parent with its initial comments to the proposed agreement.
On July 12, 2000, at a meeting in Milpitas, California, Mr. Spooner spoke
with Mr. Close and indicated that, subject to its continuing due diligence and
the negotiation of definitive documentation, Parent was contemplating a
transaction in which Parent would acquire the Company by issuing a maximum of
six million shares of common stock, without par value, of Parent (the "Parent
Common Stock") to the Company's stockholders, with the precise number of shares
of Parent Common Stock that would be issued to be determined based on the price
per share of Parent Common Stock at the time of the closing of the transaction.
On July 18, 2000, Parent delivered a follow-up, non-binding letter and a revised
draft of the Merger Agreement, each reflecting the July 12, 2000 non-binding
oral offer. Shortly after delivery of the July 18, 2000 letter, due to
fluctuations in the market price of shares of Parent Common Stock on the Nasdaq
Stock Market, negotiations between the parties were mutually terminated.
In early August, 2000, the senior management of Parent discussed the
possibility of restructuring the terms of a potential acquisition of the
Company. To this end, talks were reinitiated with the Company, and on August 10,
2000, a revised draft of the Merger Agreement was provided to the Company by
Parent. Following the delivery of the revised draft Merger Agreement, on August
14 and 15, 2000, Mr. Spooner, along with his legal advisors, visited the Company
at its Gilbert, Arizona, headquarters. During this visit, negotiations between
the parties resumed on several non-price issues, and, on August 17, 2000, Mr.
Spooner made a presentation to the Company Board at a regularly scheduled
meeting. At this Company Board meeting, Mr. Spooner indicated that Parent
intended to present a revised, non-binding letter to the Company within the next
week. On August 22, 2000, Parent delivered a revised version of the Merger
Agreement to the Company incorporating the non-price issues negotiated at the
August 14 and 15, 2000 meeting, and on August 24, 2000, Parent delivered a
revised, non-binding letter indicating its interest, subject to its continuing
due diligence and the negotiation of definitive documentation in acquiring the
Company at a price per Share of $19.00, payable half in cash and half in shares
of Parent Common Stock, valued as of the date the transaction closed.
Following the delivery of the August 24, 2000 letter, negotiations on price
and other issues continued. On September 6, 2000, Mr. Close visited Parent's
facilities in Willow Grove, Pennsylvania, and met with Mr. Kulicke and Mr.
Spooner. No agreement was reached during this meeting. On September 8, 2000,
following Mr. Close's return to Arizona, the Company contacted Parent and
indicated that it was seeking a transaction in which the Shares were valued at
not less than $20.00 per Share, payable half in cash and
15
<PAGE> 21
half in shares of Parent Common Stock valued as of the date the transaction
closed. On September 11, 2000, Parent delivered a revised, non-binding letter
indicating its interest, subject to its continuing due diligence and the
negotiation of definitive documentation, in acquiring the Company at a price per
Share of $20.00, payable half in cash and half in shares of Parent Common Stock
valued as of the date the transaction closed, subject to an upper limit on the
number of Parent shares issuable in the transaction. On September 13, 2000, the
Company contacted Parent and indicated a willingness to resume negotiations on
the basis on the September 11, 2000 letter. From September 13 to September 27,
2000, the parties conducted intense negotiations towards finalizing definitive
transaction documents, and the Company continued to provide due diligence
materials to Parent.
On September 28, 2000, Parent informed the Company that due to the
fluctuations in the market price of shares of Parent Common Stock, it was
concerned that the transaction as proposed could not be effected, since it would
likely require more shares of Parent Common Stock than Parent was willing to
issue. On that date, via telephone, Mr. Spooner indicated to the Company Board
that Parent was contemplating revising its offer as an all-cash offer. The
Company Board informed Mr. Spooner that Parent needed to submit a revised offer
within 24 hours or all negotiations would cease. Over the next day, Parent met
with its advisors regarding the possibility of revising its offer to acquire the
Company. On September 29, 2000, in response to these discussions, Parent
delivered a revised, non-binding letter indicating its interest, subject to its
continuing due diligence and the negotiation of definitive documentation, in
acquiring the Company in an all cash merger at a price per Share of $20.00. On
that same day, the Board of Directors of Parent (the "Parent Board") held a
meeting at which members of Parent's senior management, together with Parent's
advisors, reviewed in detail the then current proposal to acquire the Company.
At this meeting, the Parent Board appointed a sub-committee (the "Parent Sub-
Committee") to give final approval to the definitive acquisition of the Company,
if required.
On October 3, 2000, the Company contacted Parent regarding the September
29, 2000 letter. During these discussions, Mr. Kulicke and Mr. Ross J. Mangano,
the Chairman of the Company Board, agreed in principle, subject to the approval
of their respective boards of directors and the negotiation of definitive
transaction documentation, to the acquisition of the Company by Parent in a
tender offer at a price of $20.00 cash per Share. From October 3, 2000 through
October 11, 2000, members of the management of both companies, along with their
legal advisors, extensively negotiated the terms of the proposed acquisition and
the definitive documentation. The principal issues discussed among the parties
during these negotiations included the nature and extent of the parties'
representations and warranties, the conditions to the Offer, the termination
events under the definitive agreements and the liability of the parties in such
circumstances, the amount of the termination fees payable by the Company and
Parent and the bases upon which they were payable, the nature of Parent's
commitments with respect to various Company officers and employee benefit
matters, the source of financing for the Offer and the Merger, and the terms of
the Stock Option Agreement, including under what circumstances Parent's option
to purchase Shares under the Stock Option Agreement would become exercisable.
On October 9, 2000, the Parent Board with its advisors met and was updated
on the status of the negotiations. At this meeting, the Parent Board reconfirmed
its approval of the transaction and the appointment of the Parent Sub-Committee
to finalize the remaining details. On October 11, 2000, the Parent Sub-Committee
authorized the acquisition of the Company, the Merger Agreement, the Stock
Option Agreement and the Affiliate Tender Agreement. Following a meeting of the
Company Board on this date, the representatives of both Parent and the Company
concluded negotiations of mutually acceptable definitive documentation.
Thereafter, Parent, the Merger Sub and the Company executed, where applicable,
each of the Merger Agreement, the Stock Option Agreement and the Affiliate
Tender Agreement, and the transaction was announced before the opening of
business on October 12, 2000 by the issuance of a press release by Parent.
11. PURPOSE OF THE OFFER; PLANS FOR THE COMPANY; THE MERGER.
PURPOSE. The purpose of the Offer and the Merger is to enable Parent
indirectly to acquire control of, and the entire equity interest in, the
Company. The Offer is being made under the Merger Agreement
16
<PAGE> 22
and is intended to increase the likelihood that the Merger will be effected. The
purpose of the Merger is to acquire all of the outstanding Shares not purchased
under the Offer. The Company will, as of the Effective Time, be an indirect
wholly owned subsidiary of Parent.
Under Delaware law, if the Merger Sub acquires, through the Offer or
otherwise, at least 90% of the outstanding Shares, the Merger may be effected
without the vote of, or notice to, the Company's stockholders. Therefore,
assuming the Company has 9,489,760 Shares outstanding (as was the case on
September 30, 2000), if at least approximately 8,540,784 of the outstanding
Shares (or such greater number as may be necessary if options are exercised) are
acquired under the Offer or otherwise, the Merger Sub will be able to, and under
the Merger Agreement will be required to, effect the Merger without a meeting of
the Company's stockholders.
If the "short form" merger procedure described above is not available,
under the DGCL, the affirmative vote of holders of a majority of the outstanding
Shares (including any Shares owned by the Merger Sub) will be required to
approve the Merger. If the Merger Sub acquires, through the Offer or otherwise,
voting power with respect to at least a majority of the outstanding Shares,
which would be the case if the Minimum Condition were satisfied and the Merger
Sub were to accept for payment, and pay for, Shares tendered under the Offer, it
would have sufficient voting power to effect the Merger regardless of the vote
of any other stockholders of the Company.
PLANS FOR THE COMPANY. Except as disclosed in this Offer to Purchase,
neither Parent nor the Merger Sub has any present plans or proposals that would
result in an extraordinary corporate transaction, such as a merger,
reorganization, liquidation, or sale or transfer of a material amount of assets,
involving the Company or any of its subsidiaries, or any material changes in the
Company's capitalization, corporate structure, business or composition of its
management or the Company Board. Parent is continuing to evaluate and review the
Company and its business, assets, corporate structure, capitalization,
operations, properties, policies, management and personnel with a view towards
determining how to optimally realize any potential benefits which arise from the
relationship of the operations of the Company with those of other business units
of Parent. Such evaluation and review is ongoing and is not expected to be
completed until after the consummation of the Offer and the Merger. If, as and
to the extent that Parent acquires control of the Company, Parent will complete
such evaluation and review of the Company and will determine what, if any,
changes would be desirable in light of the circumstances which then exist. Such
changes could include, among other things, restructuring the Company through
changes in the Company's business, corporate structure, certificate of
incorporation, by-laws, capitalization or management or could involve
consolidating and streamlining operations and reorganizing other businesses and
operations.
Assuming the Minimum Condition has been satisfied and the Merger Sub
purchases all Shares tendered under the Offer, the Merger Sub intends, subject
to Rule 14f-1 under the Exchange Act, promptly to exercise its rights under the
Merger Agreement to obtain majority representation on, and control of, the
Company Board. Under the Merger Agreement, the Company has agreed, concurrently
with the Merger Sub's acceptance for payment and payment for such Shares, that
the Merger Sub will be entitled to designate such number of directors, rounded
up to the next whole number, on the Company Board as will give the Merger Sub
representation on the Company Board equal to the product of (i) the total number
of directors on the Company Board (giving effect to any increase in the size of
such Board under this provision of the Merger Agreement) and (ii) the percentage
that the number of Shares beneficially owned by the Merger Sub and its
affiliates (including Shares so accepted for payment and purchased) bears to the
number of Shares then outstanding; provided that, so long as the total number of
directors on the Company Board does not exceed nine (9), the number of directors
designated by the Merger Sub on the Company Board may not exceed seven (7). In
furtherance of the foregoing, the Merger Agreement provides that concurrently
with the Merger Sub's acceptance for payment and payment for such Shares, upon
the request of the Merger Sub or Parent and subject to compliance with Rule
14f-1 under the Exchange Act, the Company will use its reasonable best efforts
promptly either to increase the size of its Board or to secure the resignations
of such number of its incumbent directors, or both, as is necessary to enable
such designees of the Merger Sub to be so elected or appointed to the Company
Board, and, subject to applicable law, the Company has agreed to take all
reasonable actions available to
17
<PAGE> 23
the Company to cause such designees of the Merger Sub to be so elected or
appointed. At such time, the Merger Agreement provides that the Company will, if
requested by Parent or the Merger Sub and subject to applicable law, also take
all reasonable action necessary to cause persons designated by the Merger Sub to
constitute at least the same percentage, rounded up to the next whole number, as
is on the Company Board of (i) each committee of the Company Board, (ii) each
board of directors, or similar body, of each subsidiary of the Company and (iii)
each committee, or similar body, of each such board.
Parent and the Company have also agreed that after the time that the Merger
Sub's designees are elected to the Company Board, such Board will have, at all
times before the Effective Time at least two directors who were directors of the
Company on October 11, 2000 and who are not officers or affiliates of the
Company, Parent or any of their affiliates, it being understood that for
purposes of this sentence, a director, including, without limitation, the
Chairman of the Company Board, will not be deemed an affiliate of the Company
solely as a result of his status as a director of the Company (the "Current
Directors"). Parent and the Company have further agreed that (i) if the number
of Current Directors serving on the Company Board is reduced below two for any
reason whatsoever, including, without limitation, by a director's refusing or
failing to serve, the remaining Current Director serving on the Company Board
may designate another Current Director to fill such vacancy, (ii) if no Current
Directors then remain on the Company Board, the other directors will designate
two other Current Directors to fill such vacancies, and (iii) if notwithstanding
the foregoing, no Current Directors are on the Company Board, the other
directors may designate two other persons to fill such vacancies who are not
officers or affiliates of the Company, Parent or any of their respective
affiliates (each an "Independent Director"). Subject to applicable law, the
Company has also agreed to promptly take all action reasonably requested by
Parent necessary to effect any such election, including furnishing the
information required by Section 14(f) of the Exchange Act and Rule 14(f)-1
promulgated thereunder to Parent for inclusion in this Offer to Purchase.
The Company and Parent have also agreed that before the Effective Time and
from and after the time that the Merger Sub's designees constitute a majority of
the Company Board, if applicable, any amendment or any termination of the Merger
Agreement by the Company, any extension of time for performance of any of the
obligations of Parent or the Merger Sub thereunder, and any waiver of any
condition or of any of the Company's rights thereunder may be effected only with
the affirmative vote of a majority of the Current Directors and Independent
Directors; provided, that, if there are no Current Directors or Independent
Directors, such actions may be effected by majority vote of the entire Company
Board.
The Merger Sub or an affiliate of the Merger Sub may, following the
consummation or termination of the Offer, seek to acquire additional Shares
through open market purchases, privately negotiated transactions, a tender offer
or exchange offer or otherwise, upon such terms and at such prices as it shall
determine, which may be more or less than the price paid in the Offer. The
Company Board has approved the Merger Agreement and the Offer, and, therefore,
Section 203 of the DGCL is inapplicable to the Offer and the Merger. The Company
has also amended the Rights Agreement to provide that (i) neither Parent nor the
Merger Sub, nor any affiliate of Parent or the Merger Sub, will be deemed to be
an Acquiring Person or entity (as defined in the Rights Agreement) in connection
with the transactions contemplated by the Merger Agreement, (ii) the Rights will
not separate from the Shares as a result of the execution, delivery or
performance of the Merger Agreement, the Stock Option Agreement or the
consummation of the Offer or the Merger or any of the other transactions
contemplated thereby, and (iii) none of the Company, the Merger Sub or the
Surviving Corporation, nor any of their respective affiliates, will have any
obligations under the Rights Agreement to any holder (or former holder) of
Rights as of or following the consummation of the Offer or following the
Effective Time.
THE MERGER AGREEMENT. The following is a summary of the Merger Agreement,
a copy of which has been filed with the SEC as an exhibit to the Tender Offer
Statement on Schedule TO filed by Parent and the Merger Sub (the "Schedule TO").
This summary is not a complete description of the terms and conditions of the
Merger Agreement and is qualified in its entirety by reference to the Merger
Agreement. The following summary may not contain all of the information
important to you. The Merger Agreement
18
<PAGE> 24
may be examined, and copies obtained, as set forth in Section 8 of this Offer to
Purchase. Capitalized terms used in the following summary and not otherwise
defined below have the meanings set forth in the Merger Agreement.
The Offer and the Merger. The Merger Agreement provides for the making of
the Offer and that upon the terms and subject to prior satisfaction or waiver,
to the extent permitted to be waived, of the conditions of the Offer, promptly
after expiration of the Offer, Parent will cause the Merger Sub to accept for
payment, and pay for, all Shares validly tendered and not withdrawn in the
Offer. The Merger Agreement further provides that the Merger Sub has the right
to modify and make changes to the terms and conditions of the Offer as described
above in Section 1 of this Offer to Purchase.
The Merger Agreement provides that, as soon as practicable after
consummation of the Offer, receipt of any required approval by the Company's
stockholders of the Merger Agreement and the satisfaction or waiver of other
conditions described below, the Merger Sub will be merged into the Company, and
each then outstanding Share not owned by Parent or any subsidiary of Parent or
held in treasury by the Company or any subsidiary of the Company, other than
Shares held by stockholders of the Company who properly exercise dissenters'
rights under the applicable provisions of the DGCL, will be converted into the
right to receive the Merger Consideration.
Vote Required to Approve Merger. The DGCL requires that, if the "short
form" merger procedure previously described in this Section 11 is not available,
the adoption of any plan of merger of the Company must be approved by the
holders of a majority of the Company's outstanding Shares. In such case, under
the DGCL, the affirmative vote of holders of a majority of the outstanding
Shares, including any Shares owned by the Merger Sub, will be required to
approve the Merger. If the approval of the holders of a majority of the
Company's outstanding Shares is required, the Merger Agreement provides that the
Company will as promptly as reasonably practicable after the Expiration Date
convene a special meeting of its stockholders for the purpose of voting on the
approval and adoption of the Merger Agreement and the Merger, and otherwise
comply with all legal requirements applicable to a stockholders' meeting.
Subject to its fiduciary duties, the Company Board will recommend the approval
and adoption of the Merger and the Merger Agreement. If the Merger Sub acquires,
through the Offer or otherwise, voting power with respect to at least a majority
of the outstanding Shares, which would be the case if the Minimum Condition were
satisfied and the Merger Sub were to accept for payment, and pay for, Shares
tendered under the Offer, it would have sufficient voting power to effect the
Merger without the vote of any other stockholders of the Company.
Recommendation. The Company Board, at a meeting held on October 11, 2000,
has (i) unanimously determined that the terms of the Offer and the Merger are
fair to, and in the best interests of, the stockholders of the Company, (ii)
unanimously duly approved the Offer, the Merger, the Merger Agreement, the
Affiliate Tender Agreement, the Stock Option Agreement and the other
transactions contemplated thereby, and (iii) unanimously recommended that the
stockholders of the Company accept the Offer and approve the Merger Agreement
and the Merger (the "Offer Recommendation"). This recommendation of the Company
Board may be withdrawn or modified by the Company Board under certain
circumstances. However, the Company may be obligated to pay Parent the Company
Termination Fee described below under "Fees and Expenses" if such approval is
withdrawn or modified.
Conditions to the Merger. The respective obligations of each party to
effect the Merger are subject to the satisfaction or waiver, where permissible,
before the Effective Time, of the following conditions:
(1) if required by applicable law, the Merger Agreement will have been
adopted by the requisite affirmative vote of the holders of a majority
of the Shares;
(2) the waiting period applicable to the consummation of the Merger under
the HSR Act will have expired or been terminated;
(3) no judgment, order, decree, statute, law, ordinance, rule or
regulation, entered, enacted, promulgated, enforced or issued by any
court or other Government Entity of competent
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jurisdiction or other legal restraint or prohibition will be in effect
(i) preventing the consummation of the Merger or (ii) prohibiting or
limiting the ownership or operation by Parent or the Company and their
respective subsidiaries of any material portion of the business or
assets of Parent or the Company and their respective subsidiaries,
taken as a whole, or (iii) compelling Parent or the Company and their
respective subsidiaries to dispose of or hold separate any portion of
the business or assets of Parent or the Company and their respective
subsidiaries, taken as a whole, which (A) in the case of either clause
(ii) or (iii), would result in a Company Material Adverse Effect (as
defined in Section 11) or a Parent Material Adverse Effect (as defined
in Section 13), except if such prohibition or restraint relating to
clauses (i), (ii) and (iii) arises under (1) any antitrust, competition
or similar statute, law, rule or regulation of any jurisdiction outside
the United States of America, or (2) any other statute, law, rule or
regulation of any jurisdiction outside the United States of America, or
(B) in the case of clauses (i), (ii) and (iii), would reasonably be
expected to subject any officer, director, employee or stockholder of
the Company or Parent to any civil or criminal liability;
(4) in the case of the Company's obligations, all governmental consents,
orders and approvals, other than under the HSR Act and other than the
filing of the Certificate of Merger by the Company with the Office of
the Secretary of State of Delaware, legally required for the
consummation of the Merger and the transactions contemplated in the
Merger Agreement shall have been obtained and be in effect at the
Effective Time, except where the failure to obtain any such consent
would not reasonably be expected to (A) subject any officer, director,
employee or stockholder of the Company to civil or criminal liability
in respect of the failure to obtain such consent, or (B) have a Company
Material Adverse Effect, and in the case of Parent's and the Merger
Sub's obligations, all other governmental consents, orders and
approvals, other than under the HSR Act, legally required for the
consummation of the Merger and the transactions contemplated in the
Merger Agreement shall have been obtained and be in effect at the
Effective Time, except where the failure to obtain any such consent
would not reasonably be expected to have a Company Material Adverse
Effect or a Parent Material Adverse Effect; and
(5) Merger Sub shall have accepted for payment and paid for the Shares
tendered under the Offer.
Termination of the Merger Agreement. The Merger Agreement may be
terminated at any time before the Effective Time, and, if required by applicable
law, whether before or after approval of the Merger Agreement and the Merger by
the stockholders of the Company:
(1) by mutual written consent of Parent and the Company;
(2) by either Parent or the Company if:
- there is any decree, judgment, injunction or other order which is
final and nonappealable preventing the consummation of the Offer or
the Merger and the terminating party shall have used reasonable best
efforts to prevent the entry of such decree, judgment, injunction or
other order; or
- the Offer is terminated or withdrawn under its terms (including under
the terms described in Section 13) without any of the Shares being
purchased thereunder.
(3) by the Company if:
- before the purchase of a majority of the Shares under the Offer:
- there is a breach of any representation, warranty, covenant or
agreement in the Merger Agreement on the part of Parent or the
Merger Sub, or if any representation or warranty on the part of
Parent or the Merger Sub shall have become untrue (except to the
extent such representation or warranty speaks as of another date,
in which case such
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<PAGE> 26
representation or warranty shall be untrue as of such date);
provided that the Company may not terminate the Merger Agreement
if:
- such breach or failure to perform or comply is curable by
Parent or the Merger Sub through the exercise of their
reasonable efforts and for so long as Parent or the Merger Sub
continue to exercise such reasonable efforts or, if shorter,
for 20 days, or
- the circumstances giving rise to such breach of any of Parent's
or the Merger Sub's representations and warranties do not
constitute or effect, individually or in the aggregate, a
Parent Material Adverse Effect.
- the Merger Sub fails to commence the Offer in violation of the Merger
Agreement.
- all of the Offer Conditions shall have been satisfied or waived and
the Merger Sub shall not have accepted for payment and paid for any
Shares under the Offer in accordance with its terms.
- before the purchase of a majority of the Shares under the Offer, all
of the following conditions are met:
- the Company receives an unsolicited bona fide proposal in writing
by any person relating to a Competing Transaction;
- the Company Board, after duly considering the advice of outside
legal counsel to the Company, determines in good faith that the
failure to do any of the following would be reasonably likely to
constitute a breach of its fiduciary duties to the Company's
stockholders imposed by applicable law: (i) withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to
Parent, the Offer Recommendation (it being understood that any such
modification is not adverse if a majority of the directors on the
Company Board continue to favorably recommend the Offer and the
Merger), (ii) approve or recommend, or propose publicly to approve
or recommend, any Competing Transaction (as defined in the Merger
Agreement), or (iii) cause the Company to enter into any letter of
intent, agreement in principle, acquisition agreement or other
similar agreement related to any Competing Transaction (other than
agreements relating solely to non-disclosure or "standstill"
provisions);
- the Company notifies Parent in writing that it intends to take any
of the foregoing actions listed in clauses (i), (ii) and (iii)
above;
- if the Company proposes to enter into an agreement with respect to
such Competing Transaction, the Company attaches the most recent
version of such agreement to such notice;
- Parent does not make, within 48 hours of receiving the Company's
written notification of its intention to take the actions listed in
clause (i), (ii) or (iii) above, a written offer that is at least
as favorable, from a financial point of view (after considering all
of the terms of such Competing Transaction), to the stockholders of
the Company as the Competing Transaction, as determined in good
faith by the Company Board after duly considering the advice of the
Company's investment bankers;
- the Company is not in material breach of its obligations not to
solicit, negotiate or endorse any Competing Transactions; and
- the Company pays to Parent the Company Termination Fee.
(4) by Parent if, before the purchase of a majority of the Shares under the
Offer:
- the Company amends the Rights Plan to facilitate the acquisition by
any person, entity or "group," (as such term is defined under Section
13(d) of the Exchange Act and the rules and
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<PAGE> 27
regulations promulgated thereunder) other than Parent or the Merger
Sub of any of the outstanding shares of its capital stock.
- on the Expiration Date, the Offer Condition described in subsection
(1) of Section 13 has not been satisfied or waived, provided, that, to
terminate under this provision, Parent must pay the Parent Termination
Fee (as described below).
- on the Expiration Date, the Offer Conditions described in subsections
(2) and (3) of Section 13 have not been satisfied or waived.
- the Company Board:
- withdraws, modifies or amends the Offer Recommendation in a manner
adverse to Parent or the Merger Sub (it being understood that any
such modification is not adverse if a majority of the directors on
the Company Board continue to favorably recommend the Offer and the
Merger); or
- has endorsed, approved or recommended to the Company's stockholders
any Competing Transaction.
- the Company has entered into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement relating
to any Competing Transaction, other than agreements relating solely to
non-disclosure or "standstill" provisions.
- a tender offer (other than the Offer) or exchange offer for the
outstanding shares of capital stock of the Company then representing
20% or more of the combined power to vote generally for the election
of directors is commenced, and the Company Board:
- recommends in any manner that the Company's stockholders tender
their shares into such tender or exchange offer; or
- does not recommend in any schedule 14D-9, or in any other form or
schedule required to be filed with the SEC by applicable law, that
the Company's stockholders not tender their shares into such tender
or exchange offer.
Effect of Termination. If the Merger Agreement is terminated by either
Parent or the Company, the Merger Agreement will become void and there will be
no liability or further obligation on the part of Parent, the Merger Sub or the
Company or any of their respective officers or directors, except that nothing
will relieve any party from its obligations with respect to any breach of the
Merger Agreement or to pay any required expenses of, or required termination fee
to, the other parties.
Fees and Expenses. The Company will be required to pay Parent a
termination payment of $5,625,000 (the "Company Termination Fee") if the Merger
Agreement is terminated:
(1) by Parent if, before the purchase of a majority of the Shares under the
Offer:
- the Company Board:
- withdraws, modifies or amends the Offer Recommendation in a manner
adverse to Parent or the Merger Sub (it being understood that any
such modification is not adverse if a majority of the directors on
the Company Board continue to favorably recommend the Offer and the
Merger); or
- has endorsed, approved or recommended any Competing Transaction.
- the Company has entered into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement relating
to any Competing Transaction, other than agreements relating solely to
non-disclosure or "standstill" provisions.
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<PAGE> 28
- a tender offer (other than the Offer) or exchange offer for
outstanding shares of capital stock of the Company then representing
20% or more of the combined power to vote generally for the election
of directors is commenced, and the Company Board:
- recommends in any manner that the Company's stockholders tender
their shares into such tender or exchange offer; or
- does not recommend in any schedule 14D-9 or in any other form or
schedule required to be filed with the SEC by applicable law that
the Company's stockholders not tender their shares into such tender
or exchange offer.
- the Company amends the Rights Plan to facilitate the acquisition by
any person, entity or "group" (as such term is defined under
Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder) other than Parent or the Merger Sub of any
of the outstanding shares of the capital stock.
In any of the preceding cases, the fee shall be payable within two
business days of such termination.
(2) by the Company (before the purchase of a majority of the Shares under
the Offer and after complying with the conditions under which it is
permitted by the Merger Agreement to do any of the following, in which
case the Company Termination Fee shall be paid contemporaneously with
such termination) if the Company shall: (i) withdraw or modify, or
propose publicly to withdraw or modify, in a manner adverse to Parent,
the Offer Recommendation (it being understood that any such
modification is not adverse if a majority of the directors on the
Company Board continue to favorably recommend the Offer and the
Merger), (ii) approve or recommend, or propose publicly to approve or
recommend, any Competing Transaction, or (iii) cause the Company to
enter into any letter of intent, agreement in principle, acquisition
agreement or other similar agreement related to any Competing
Transaction (other than agreements relating solely to non-disclosure or
"standstill" provisions).
Parent will be required to pay the Company a termination payment of
$16,875,000 (the "Parent Termination Fee") if the Merger Agreement is
terminated:
(1) by Parent, if such termination is attributable to the fact that the
Offer Condition relating to the accuracy of the Company's
representations or warranties, as described in subsection (1) of
Section 13, has not been satisfied, in which case Parent shall pay the
Parent Termination Fee contemporaneously with such termination.
(2) by the Company, so long as the Company has not breached in any material
respect any representation, warranty or covenant on its part and
either:
- the Merger Sub has failed to commence the Offer in violation of the
Merger Agreement; or
- all of the Offer Conditions have been satisfied or waived and the
Merger Sub has not accepted for payment and paid for any Shares under
the Offer in accordance with its terms.
In any of the cases described in subsection (2) above, Parent shall pay
the Parent Termination Fee within two business days following such
termination.
Other Fees and Expenses. The Merger Agreement provides that all expenses
incurred by the parties thereto will be borne solely by the party which has
incurred such expenses; provided, however, that Parent and the Merger Sub as a
group and the Company individually will pay one-half each for all expenses
related to (i) printing, filing and mailing the Offer Documents, the Information
Statement, the Schedule 14D-9 and the Company Proxy Statement (each as defined
in the Merger Agreement), (ii) all SEC and other regulatory filing fees incurred
in connection with such documents and (iii) all fees of preparing and filing
appropriate notification under the HSR Act. Notwithstanding the foregoing, (A)
if the Merger Agreement is terminated by Parent due to the Company's breach of a
representation or warranty, then the Company will make a nonrefundable cash
payment to Parent, within two business days after such
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<PAGE> 29
termination, in an amount equal to the aggregate amount of all fees and
reasonable, documented, out-of-pocket expenses (including with respect to fees,
all filing fees and all reasonable attorneys' fees, accountants' fees and
financial advisory fees) that have been paid or that may become payable by or on
behalf of Parent in connection with the preparation and negotiation of the
transaction documents and otherwise in connection with the Offer and the Merger,
provided, however, that such payment will not exceed $1,000,000, and (B) if this
Agreement is terminated by the Company due to Parent's or the Merger Sub's
breach of a representation or warranty, then Parent will make a nonrefundable
cash payment to the Company, within two business days after such termination, in
an amount equal to the aggregate amount of all fees and reasonable, documented,
out-of-pocket expenses (including with respect to fees, all filing fees and all
reasonable attorneys' fees, accountants' fees and financial advisory fees) that
have been paid or that may become payable by or on behalf of the Company in
connection with the preparation and negotiation of the transaction documents and
otherwise in connection with the Offer and the Merger, provided, however, that
such payment will not exceed $1,000,000.
Acquisition Proposals. The Company has agreed that it will not, and will
not permit any of its subsidiaries or authorize any of its representatives to,
and will use its reasonable best efforts not to allow any of its representatives
to:
- solicit or knowingly encourage (including by way of furnishing non-public
information or assistance), or take any other action to knowingly
facilitate or induce, any inquiries or the making of any proposal that
constitutes, or that may reasonably be expected to lead to, any Competing
Transaction; or
- enter into discussions or negotiations with any person or entity in
furtherance of any inquiries to obtain a Competing Transaction; or
- agree to, or endorse, any Competing Transaction.
Furthermore, the Company has agreed to promptly notify Parent of all
material terms of any such inquiries or proposals received by the Company or, to
the knowledge of the Company, by any representative of the Company relating to
any Competing Transaction and if such inquiry or proposal is in writing, the
Company has agreed to promptly deliver or cause to be delivered to Parent a copy
of such inquiry or proposal.
Notwithstanding the foregoing restrictions, the Company is not prohibited:
- at any time before the purchase of a majority of the Shares under the
Offer from:
- furnishing information to, or entering into negotiations or
discussions with, any persons in connection with an unsolicited bona
fide proposal in writing by such person relating to a Competing
Transaction, provided, however, that the Company or its
representatives may do so only if and to the extent that:
- the Company provides Parent with at least 24 hours' prior notice of
any meeting of the Company Board at which the Company Board will
consider such offer;
- the Company Board, after duly considering the advice of outside
legal counsel to the Company, determines in good faith that the
failure to do so would be reasonably likely to constitute a breach
of its fiduciary duties to stockholders imposed by applicable law;
and
- before, or concurrently with, furnishing any information to such
person, the Company furnishes such information to Parent (to the
extent not previously furnished).
- complying with Rule 14d-9 or 14e-2 promulgated under the Exchange Act
with regard to a Competing Transaction.
- furnishing a copy of the non-solicitation provisions of the Merger
Agreement to any person making an unsolicited bona fide proposal in
writing related to a Competing Transaction.
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<PAGE> 30
- making any disclosure to the Company's stockholders if, in the good faith
judgment of the Company Board, after duly considering the advice of
outside legal counsel to the Company, failure to make such disclosure
would be reasonably likely to constitute a breach of its fiduciary duties
to stockholders imposed by applicable law.
Under the Merger Agreement, neither the Company Board nor any committee
thereof may:
- withdraw or modify, or propose publicly to withdraw or modify, in any
manner adverse to Parent, the Offer Recommendation (it being understood
that any such modification is not adverse if a majority of the directors
on the Company Board continue to favorably recommend the Offer and the
Merger);
- approve or recommend, or propose publicly to approve or recommend, any
Competing Transaction; or
- cause the Company to enter into any letter of intent, agreement in
principle, acquisition agreement or other similar agreement related to
any Competing Transaction (other than agreements relating solely to
non-disclosure or "standstill" provisions).
The Company Board, including any committee thereof, may take the actions
described above so long as certain conditions specified in the Merger Agreement
are met, including, without limitation, the termination by the Company of the
Merger Agreement and the payment by the Company to Parent of the Company
Termination Fee.
The Company has further agreed that it will not terminate the Merger
Agreement or enter into a binding agreement with respect to a Competing
Transaction if Parent has, within 48-hours of receiving the Company's written
notice of its intention to take one of the actions described immediately above,
made a written offer that is at least as favorable to the Company's stockholders
from a financial point of view (after considering all of the terms of such
Competing Transaction), and, if the Competing Transaction is publicly known, has
publicly announced its intention to make such offer.
Representations and Warranties. The Merger Agreement contains customary
representations and warranties of the parties thereto, including representations
by the Company with respect to, among other things: its organization and
qualification; its subsidiaries; its certificate of incorporation and bylaws;
its capitalization and the capitalization of its subsidiaries; authority
relative to the Merger Agreement and the Stock Option Agreement; no conflicts;
required filings and consents; compliance with the law; permits; SEC filings;
financial statements; absence of certain changes or events; undisclosed
liabilities; litigation; customers; major contracts; employee benefit plans;
labor matters; taxes; environmental matters; intellectual property; transactions
with affiliates; certain business practices; insurance; properties; full
disclosure and the opinion of its financial advisor. Certain representations and
warranties in the Merger Agreement are qualified by "materiality" or by "Company
Material Adverse Effect" on the Company. For purposes of the Merger Agreement
and this Offer to Purchase, the term "Company Material Adverse Effect" means any
change or effect, including prospective changes or effects, that, individually
or when taken together with all other changes or effects, is or would reasonably
be expected to be adverse to the assets, liabilities, financial condition,
results of operations or business of the Company and its subsidiaries, taken as
a whole, which changes or effects in relation to the assets, liabilities,
financial condition, results of operations or business of the Company and its
subsidiaries taken as a whole results or would reasonably be expected to result
in damages, liabilities or expenses to the Company of $5,000,000 or more. The
Merger Agreement further provides that none of the following will be deemed in
themselves, either alone or in combination, to constitute a Company Material
Adverse Effect, and none of the following will be taken into account in
determining whether there has been or will be a Company Material Adverse Effect:
(i) any changes in the trading price or trading volume for the Shares between
October 11, 2000 and the Effective Time, (ii) the failure by the Company to meet
internal projections or forecasts or published revenue or earning predictions
for any period ending, or for which revenues or earnings are disclosed, on or
after October 11, 2000, (iii) any change in the economy or securities markets of
the United States or any other country or region in general, (iv) any change or
effect resulting from the announcement of the
25
<PAGE> 31
transactions contemplated by the Merger Agreement, (v) changes in law or
generally accepted accounting principles, which affect generally entities such
as Parent or the Company, (vi) any change or effect in the semiconductor or the
semiconductor capital equipment industries in general, and not specifically the
Company or its subsidiaries, (vii) any change or effect resulting from the
taking of any actions by the Company that have been approved in writing by
Parent, including those actions contemplated by the Merger Agreement, or (viii)
any change or effect resulting from compliance by Parent, the Merger Sub or the
Company with the terms of the Merger Agreement.
Certain Covenants. The Company has agreed in the Merger Agreement that,
before the purchase of a majority of the Shares in the Offer, the Company will,
among other things, carry on its business solely in the ordinary course
consistent with past practice and will not adopt any amendments to its
certificate of incorporation or bylaws. In addition, the Company has agreed
that, before the purchase of a majority of the Shares in the Offer, the Company
will not, and will not permit any of its subsidiaries or authorize any of its
representatives to, among other things, (i) acquire or agree to acquire, by
merging or consolidating with, or by any other manner, any business or any other
person or entity, (ii) declare or pay certain dividends or distributions, (iii)
make certain changes to its capital structure, (iv) issue or sell securities
except in certain limited circumstances, (v) sell, lease, or otherwise dispose
of any material assets of its or any of its subsidiaries, except for
dispositions of inventory in the ordinary course consistent with past practice
and for certain sale/leaseback transactions, (vi) make certain payments to the
members of its Board, its executive officers and its employees, (vii) take
certain actions with respect to its benefit plans, (viii) incur additional debt
above levels established in the Merger Agreement, (ix) enter into, amend, modify
or terminate certain contracts, (x) make or agree to make additional capital
expenditures above levels established in the Merger Agreement, or (xi) authorize
or agree to do any of the foregoing.
Proxy Statement. The Merger Agreement provides that, if required, the
Company and Parent will promptly prepare, and the Company will file with the SEC
a proxy statement to be distributed to the stockholders of the Company, along
with a form of proxy, in connection with such stockholders' vote on the Merger
and the Merger Agreement. Such proxy statement will, subject to the fiduciary
duties of the Company Board, include the recommendation of the Company Board
that the stockholders of the Company vote to approve the Merger and the Merger
Agreement.
Amendment of the Merger Agreement. The Merger Agreement may be amended by
action taken by or on behalf of the Boards of Directors of Parent, the Merger
Sub and the Company at any time before the Effective Time; provided, however,
that, (i) before the Effective Time and from and after the time that the Merger
Sub's designees constitute a majority of the Company Board, if applicable, any
amendment to or termination of the Merger Agreement may be affected only with
the affirmative vote of the majority of the Current Directors and Independent
Directors who are then members of the Company Board, and (ii) after approval of
the Merger by the stockholders of the Company, no amendment may be made that by
law requires further approval by such stockholders without the further approval
of such stockholders. The Merger Agreement may not be amended except by an
instrument in writing signed on behalf of each of Parent, the Merger Sub and the
Company.
Indemnification of Officers and Directors. The Company has agreed to
indemnify and hold harmless Parent and its directors and officers, and Parent
has agreed to indemnify and hold harmless the Company and its directors and
officers, from and against any loss, claim, damage, cost, liability, obligation
or expense, including reasonable attorney's fees and costs of investigation, to
which any indemnified party may become subject under the Exchange Act or
otherwise, insofar as such loss, claim, damage, cost, liability, obligation or
expense or actions in respect thereof arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact relating to, and
supplied by, such indemnifying party and contained in the Offer Documents, the
Information Statement, the Schedule 14D-9 or the Company Proxy Statement or
arises out of or is based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein with respect to such indemnifying party not misleading.
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<PAGE> 32
Parent and the Merger Sub have agreed that until six years from the
Effective Time, Parent will not permit the Certificate of Incorporation and
Bylaws of the Surviving Corporation to be amended to reduce or limit the rights
of indemnity afforded in such Certificate of Incorporation and Bylaws to the
present and former directors and officers (the "Indemnified Persons") of the
Company or to reduce or limit the ability of the Surviving Corporation to
indemnify such persons, or to hinder, delay or make more difficult the exercise
of such rights of indemnity or the ability to indemnify. If, within this period,
the Surviving Corporation is merged with or into Parent or another subsidiary of
Parent, the Certificate of Incorporation and Bylaws of Parent or such subsidiary
will, for at least the six year period following the Effective Time, provide
rights to indemnification for the Indemnified Persons at least equivalent to
those in the Certificate of Incorporation and Bylaws of the Surviving
Corporation. From and after the Effective Time, Parent will cause the Surviving
Corporation or its successors (i) to exercise the powers granted to it by its
Certificate of Incorporation, its Bylaws and by applicable law, as in effect on
October 11, 2000, to indemnify to the fullest extent possible present and former
directors and officers of the Company against claims made against them arising
from their service in such capacities and (ii) to fulfill and honor in all
respects the obligations of the Company under each agreement that provides for
indemnification and is in effect between the Company and the Indemnified Persons
at the Effective Time that has been disclosed to Parent.
Should any claim or claims be made against any present or former director
or officer of the Company, arising from his services as such, within six years
of the Effective Time, the provisions of the Merger Agreement respecting the
Certificate of Incorporation and Bylaws of the Surviving Corporation will
continue in effect until the final disposition of all such claims. If after the
Effective Time, the Surviving Corporation or any of its successors or assigns
(i) consolidates with or merges into any other person and is not the continuing
or surviving corporation or entity of such consolidation or merger or (ii)
transfers or conveys all or substantially all of its properties and assets to
any person then, and in each such case, proper provision will be made so that
the successors and assigns of the Surviving Corporation assume the
indemnification obligations set forth above, including by providing rights to
indemnification in their certificates of incorporation, bylaws, or other
organizational documents at least equivalent to those in the Certificate of
Incorporation and Bylaws of the Surviving Corporation. Notwithstanding anything
to the contrary in the Merger Agreement, neither Parent nor the Surviving
Corporation will be liable for any settlement effected without its written
consent, which will not be unreasonably withheld.
Until six years from the Effective Time, the Surviving Corporation has
agreed to maintain in effect, for the benefit of the Indemnified Persons with
respect to acts or omissions occurring before the Effective Time, directors' and
officers' liability insurance which is substantially similar in coverage to that
maintained by the Company as of October 11, 2000 (the "Existing Policy");
provided, however, that the Surviving Corporation will not be required to pay or
cause to be paid annual premiums for the Existing Policy (or for any substitute
policies) of more than 150% of the last annual premium paid by the Company
before October 11, 2000. If any such future annual premiums exceed the 150%
level, the Surviving Corporation may reduce the amount of coverage of the
Existing Policy (or any substitute policies) to the amount of coverage that can
be obtained for a premium equal to 150% of the last annual premium paid by the
Company before October 11, 2000.
Treatment of Company Stock Options. Before the Effective Time, Parent and
the Company will take all such actions as may be necessary to cause each
unexpired and unexercised stock option of the Company in effect on the date
thereof which has been granted to current or former directors, officers,
employees or consultants of the Company by the Company (each, an "Employee
Option") to be cancelled and converted into the right to receive at the
Effective Time, whether or not then vested or exercisable, an amount in cash
equal to the product of (i) the number of Shares subject to such Employee Option
and (ii) the excess, if any, of the Merger Consideration over the exercise price
per Share subject or related to such Employee Option.
Treatment of Employee Stock Purchase Plan. Prior to, and conditioned upon,
the purchase of a majority of the Shares under the Offer, the Company will take
all such actions as may be necessary to provide that the Company's 1997 Employee
Stock Purchase Plan, as amended (the "Company ESPP"),
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will terminate on December 31, 2000. If the Effective Time occurs on or before
December 31, 2000, each option to purchase Shares that is outstanding under the
Company ESPP (each, an "ESPP Option") will automatically be assumed and
converted at the Effective Time into the right to receive $8.10 in cash (the
difference between $20.00 and the exercise price of each ESPP Option) on
December 31, 2000 for each Share covered by such ESPP Option. If the Effective
Time occurs after December 31, 2000, each ESPP Option outstanding on December
31, 2000 will entitle its holder to purchase Shares in accordance with the
provisions of the Company ESPP.
Treatment of Other Employee Benefits. The Company will take, on terms and
conditions satisfactory to Parent, all such actions as may be necessary to amend
its 401(k) plans before the purchase of a majority of the Shares under the Offer
in order to exclude Parent and its subsidiaries as participating employers in
the Company's 401(k) Plans. If any employee of the Company or any of its
subsidiaries becomes eligible to participate in any employee benefit plan of
Parent after the Effective Time, Parent, the Surviving Corporation and their
subsidiaries will credit such employee's service with the Company or its
subsidiaries, to the same extent as such service was credited under the similar
employee benefit plans of the Company and its subsidiaries immediately before
the Effective Time, for purposes of determining eligibility to participate in
and vesting under, and for purposes of calculating the benefits under, such
employee benefit plan of Parent. To the extent permitted by such employee
benefit plan of Parent and applicable law, Parent, the Surviving Corporation and
its subsidiaries will waive any pre-existing condition limitations, waiting
periods or similar limitations under such employee benefit plan of Parent and
will provide each such employee with credit for any co-payments previously made
and any deductibles previously satisfied.
Also, before the purchase of a majority of the Shares under the Offer, the
Company may (i) pay bonuses to any member of the Company Board or executive
officer not in excess of $1,000,000 in the aggregate for all directors and
executive officers; (ii) pay bonuses (not including sales commissions payable in
the ordinary course of business consistent with past practice) to any other
employee of the Company not in excess of $25,000 in the aggregate for any
individual employee and not in excess of $500,000 in the aggregate for all
employees, in addition to payments required under agreements disclosed by the
Company to Parent. In connection with the termination of their respective
employment and change-in-control agreements, which the Company has advised
Parent and the Merger Sub it intends to effect before the purchase of a majority
of the Shares in the Offer, the Company will pay to (A) C. Zane Close,
$1,394,823; (B) Randal L. Buness, $805,273; (C) Michael K. Bonham, $790,971; and
(D) Daniel J. Hill, $1,387,207. In addition, Parent intends to enter into an
employment agreement with C. Zane Close, the terms of which have not yet been
negotiated.
Composition of the Company Board Following the Merger. The directors and
officers of the Merger Sub in office immediately before the Effective Time will
be the directors and officers of the Surviving Corporation after the Effective
Time, and these directors and officers shall serve under the Bylaws of the
Surviving Corporation until their respective successors are duly elected or
appointed and qualified. The provisions of the Merger Agreement relating to the
composition of the Company Board following the purchase of a majority of the
Shares in the Offer and before the Effective Time are summarized in Section 11
of this Offer to Purchase.
THE AFFILIATE TENDER AGREEMENT. The following is a summary of the
Affiliate Tender Agreement, a copy of which has been filed with the SEC as an
exhibit to the Schedule TO. This summary is not a complete description of the
terms and conditions of the Affiliate Tender Agreement and is qualified in its
entirety by reference to the Affiliate Tender Agreement. The following summary
may not contain all of the information important to you. The Affiliate Tender
Agreement may be examined, and copies obtained, as set forth in Section 8 of
this Offer to Purchase. Capitalized terms used in the summary and not otherwise
defined below shall have time meaning set forth in the Affiliate Tender
Agreement.
Certain of the stockholders of the Company who are also affiliates of the
Company (the "Stockholders") entered into separate Affiliate Tender Agreements
with Parent. Under these agreements, each Stockholder has separately agreed to
tender, or cause the record holder to tender, into the Offer, as
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promptly as reasonably possible and in any event before the tenth business day
after the commencement of the Offer, all of the Shares beneficially owned by
such Stockholder or any member of his Stockholder Group (as defined below) (the
"Owned Shares"). The Stockholders are Donald Walter, Ross Mangano, Kenneth
Miller, Zane Close, Michael Bonham, William Fresh, Randal Buness, and Daniel J.
Hill, and based on the Company's published records they beneficially own
approximately 930,050 Shares in the aggregate as of October 12, 2000 (excluding
Shares issuable upon the exercise of options).
Under the Affiliate Tender Agreements, each Stockholder has agreed that he
will not, and each corporation and other person controlled by the Stockholder or
any affiliate or associate thereof controlled by the Stockholder, other than the
Company and its subsidiaries (collectively, the "Stockholder Group") will not,
directly or indirectly, sell, assign, transfer, pledge or otherwise dispose of,
or grant a proxy with respect to, any Owned Shares to any person other than
Parent or its designee, or grant an option with respect to any of the foregoing,
or enter into any other agreement or arrangement with respect to any of the
foregoing, or otherwise designed to limit or transfer any of the benefits or
risks of ownership.
The Affiliate Tender Agreements also provide that each Stockholder shall
not, and shall cause each other member of the Stockholder Group not to, solicit
or knowingly encourage or take any other action to knowingly facilitate or
induce, any inquiries or the making of any proposal that constitutes, or that
may reasonably be expected to lead to, any Competing Transaction, or enter into
discussions or negotiate with any person or entity in furtherance of any
inquiries to obtain a Competing Transaction, or agree to, or endorse, any
Competing Transaction.
The Affiliate Tender Agreements require each Stockholder to promptly notify
Parent of the material terms of any such inquiries or proposals received by the
Stockholder, or any member of the Stockholder Group, and if such inquiry or
proposal is in writing, the Stockholder must deliver or cause to be delivered to
Parent a copy of such inquiry or proposal.
Each Stockholder has agreed, if requested by Parent, not to, and that it
shall cause each member of the Stockholder Group not to, vote any Owned Shares
at any annual or special meeting of stockholders, or execute any written consent
of stockholders, during such period.
Each Stockholder has also agreed to take all affirmative steps reasonably
requested by Parent to indicate its full support for the Offer and the Merger,
and under the Affiliate Tender Agreements, each Stockholder consents to Parent's
announcement in any press release, public filing, advertisement or other
document, that the Stockholder, as a stockholder of the Company, fully supports
the Offer and the Merger.
THE STOCK OPTION AGREEMENT. The following is a summary of the Stock Option
Agreement, a copy of which has been filed as an exhibit to the Schedule TO. This
summary is not a complete description of the terms and conditions of the Stock
Option Agreement and is qualified in its entirety by reference to the Stock
Option Agreement. The following summary may not contain all of the information
important to you. The Stock Option Agreement may be examined, and copies
obtained, as set forth in Section 8 of this Offer to Purchase. Capitalized terms
used in the following summary and not otherwise defined below shall have the
meaning set forth in the Stock Option Agreement.
Under the Stock Option Agreement, the Company has granted Parent an
irrevocable option (the "Company Option") to purchase from the Company upon
original issue from time to time up to a number of Shares equal to 19.9% of the
total Shares outstanding on October 11, 2000, subject to adjustment as described
below, at an initial exercise price of $20 per Share (the "Exercise Price").
The Company option is not presently exercisable and will not become
exercisable except as described in the next sentence. The Company Option may be
exercised by Parent, in whole or in part, immediately before, and subject to the
consummation of, a "Trigger Event." A "Trigger Event" occurs if (i) the Merger
Agreement is terminated by Parent or the Company under circumstances that would
entitle Parent to the Company Termination Fee under the Merger Agreement, and
(ii) within 9 months after such termination the Company consummates a Competing
Transaction with or by any person or entity.
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The Stock Option Agreement provides that the Company Option will terminate
upon the earlier of (i) the Effective Time of the Merger; or (ii) the date that
is nine months after termination of the Merger Agreement or if, at the
expiration of such nine month period the Company Option cannot be exercised by
reason of any applicable judgment, decree, order, law or regulation, ten
business days after such impediment to exercise is removed or has become final
and not subject to appeal.
The Stock Option Agreement also provides (i) Parent with registration
rights with respect to the Shares purchased under the Stock Option Agreement,
(ii) Parent the ability to acquire the Shares purchased under the Stock Option
Agreement by means of a cashless exercise, and (iii) that, in the event of any
change in the Shares by reason of stock dividends, splitups, mergers (other than
the Merger), recapitalizations, combinations, exchange of shares or the like,
the type and number of Shares or securities subject to the Company Option, and
the purchase price per Share shall be adjusted appropriately to restore to
Parent its rights thereunder, including the right to purchase from the Company
(or its successors) Shares representing 19.9% of the outstanding Common Stock on
October 11, 2000 for the same aggregate exercise price.
In addition, under the Stock Option Agreement Parent has agreed that, in
connection with any registered underwritten offering of Company Common Stock,
Parent will not, and will not permit any of its subsidiaries to, sell, transfer,
make any short sale of, grant any option for the purchase of, or enter into any
hedging or similar transaction with the same economic effect as a sale of, any
Company Common Stock held by Parent or any of its subsidiaries for a period
specified by the representative of the underwriters of Company Common Stock not
to exceed one hundred eighty (180) days following the effective date of the
applicable registration statement of the Company filed under the Securities Act
of 1933, as amended; provided however that the Company's officers, directors and
stockholders required to file reports under Section 16 of the Exchange Act are
also so limited.
APPRAISAL RIGHTS. Holders of the Shares do not have appraisal rights as a
result of the Offer. However, if the Merger is consummated, each holder of the
Shares who has neither voted in favor of the Merger nor consented to the Merger
in writing will be entitled under Section 262 of the DGCL to an appraisal by the
Delaware Court of Chancery of the fair value of his or her Shares, exclusive of
any element of value arising from the accomplishment or expectation of the
Merger, and to receive payment of such fair value in cash, together with a fair
rate of interest, if any. In determining such fair value, the Court may consider
all relevant factors. The value so determined could be more or less than the
consideration to be paid in the Offer and the Merger. Any judicial determination
of the fair value could be based upon considerations other than or in addition
to the market value of the Shares, including, asset values and earning capacity.
If any holder of the Shares who demands appraisal under Section 262 of the
DGCL fails to perfect, or effectively withdraws or loses, his right to appraisal
as provided in the DGCL, the Shares of such stockholder will be converted into
the right to receive the Merger Consideration under the Merger Agreement. A
stockholder may withdraw his demand for appraisal by delivery to Parent of a
written withdrawal of his demand for appraisal and acceptance of the Merger.
The foregoing discussion is not a complete statement of law pertaining to
appraisal rights under the DGCL and is qualified in its entirety by the full
text of Section 262 of the DGCL.
FAILURE TO FOLLOW THE STEPS REQUIRED BY SECTION 262 OF THE DGCL FOR
PERFECTING APPRAISAL RIGHTS MAY RESULT IN THE LOSS OF SUCH RIGHTS.
RULE 13e-3. The Merger would have to comply with any applicable Federal
law operative at the time of its consummation. Rule 13e-3 under the Exchange Act
is applicable to "going private" transactions. The Merger Sub does not believe
that Rule 13e-3 will be applicable to the Merger unless the Merger is
consummated more than one year after the termination of the Offer. If
applicable, Rule 13e-3 would require, among other things, that financial
information concerning the Company and information relating to the fairness of
the Merger and the consideration offered to minority stockholders be filed with
the SEC and disclosed to minority stockholders before consummation of the
Merger.
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The Rights presently are transferable only with the certificates for the
Shares and the surrender for transfer of certificates for any Shares will also
constitute the transfer of the Rights associated with the Shares represented by
such certificates. The Company has amended the Rights Agreement to provide that
(i) neither Parent nor the Merger Sub, nor any affiliate of Parent or the Merger
Sub, will be deemed to be an Acquiring Person or entity in connection with the
transactions contemplated by the Merger Agreement, (ii) the Rights will not
separate from the Common Stock as a result of the execution, delivery or
performance of the Merger Agreement, the Stock Option Agreement or the
consummation of the Offer or the Merger or any of the other transactions
contemplated thereby, and (iii) none of the Company, the Merger Sub or the
Surviving Corporation, nor any of their respective affiliates, will have any
obligations under the Rights Agreement to any holder (or former holder) of
Rights as of or following the consummation of the Offer or following the
Effective Time.
12. SOURCE AND AMOUNT OF FUNDS.
The total amount of funds required by the Merger Sub and Parent to
consummate the Offer and the Merger and to pay related fees and expenses is
estimated to be approximately $225 million.
The Offer is not conditioned upon any financing arrangements. The Merger
Sub will obtain all necessary funds required to consummate the transaction
through capital contributions or advances made by Parent. Parent plans to make
these contributions or advances from funds on hand. Parent may also obtain a
portion of such funds through borrowings under its bank credit facility with PNC
Bank (the "Credit Facility"), although it has no present intention to do so.
A summary of the Credit Facility is incorporated by reference to Parent's
Form 10-K for the fiscal year ended September 30, 1999 filed with the SEC on
December 21, 1999, and a copy of the credit agreement providing for the Credit
Facility has been filed with the SEC as an exhibit to Parent's Quarterly report
on Form 10-Q for the quarterly period ended March 31, 1998. This credit
agreement may be examined at, and copies thereof may be obtained from, the
offices of the SEC in the same manner as set forth in Section 8 above.
13. CERTAIN CONDITIONS OF THE OFFER.
Notwithstanding any other provision of the Offer or the Merger Agreement,
in addition to the Merger Sub's rights under the Merger Agreement to extend and
amend the Offer, the Merger Sub will not be required to accept for payment or,
subject to Rule 14e-1(c) of the Exchange Act, pay for and may delay the
acceptance for payment of or, subject to Rule 14e-1(c) of the Exchange Act, the
payment for, any of the Shares not theretofore accepted for payment or paid for,
and the Merger Sub may, subject to the Merger Agreement, terminate or amend the
Offer if (i) a number of the Shares representing at least a majority of the
total number of the outstanding Shares has not been validly tendered and not
withdrawn immediately before the expiration of the Offer or otherwise acquired
by Parent or any of its affiliates before the expiration of the Offer ("Minimum
Condition"), (ii) any applicable waiting period under the HSR Act has not
expired or been terminated or (iii) at any time on or after the date of the
Agreement and before the time of acceptance of such the Shares for payment or
the payment therefor, any of the following conditions has occurred and continues
to exist:
(1) any of the representations and warranties of the Company in the Merger
Agreement is inaccurate as of October 11, 2000 or as of such time,
except to the extent that such representations and warranties speak as
of another date, in which case such representations and warranties
shall be accurate as of such other date, and which inaccuracy shall not
have been cured in all material respects by the Scheduled Expiration
Date (as defined below) or, if the Offer is extended as permitted by
the Merger Agreement, by the Extended Expiration Date (as defined
below), except that any inaccuracies of such representations and
warranties will be disregarded if the circumstances giving rise to such
inaccuracies do not constitute or effect, individually or in the
aggregate, a Company Material Adverse Effect (as defined in Section
11); provided however, that, (A) notwithstanding the foregoing, the
representations and warranties relating to the
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Company's capitalization shall have been true and correct in all
material respects, without giving effect to any limitations as to
materiality in such representations and warranties, and (B) no update
of or modification to the Company's disclosure schedules made, or
purported to have been made, after October 11, 2000 will be regarded in
determining whether such representation or warranty is true and
correct.
(2) the Company or any of its subsidiaries fails to carry on their
respective businesses solely in the ordinary course consistent with
past practice and in compliance in all material respects with all
applicable laws, permits and contracts, or to use reasonable efforts to
preserve intact their current business organizations, other than
internal organizational realignments, keep available the services of
their current officers and other key employees and preserve their
relationships with customers, suppliers, licensors, lessors,
distributors and others having business dealings with them, except
where the failure to do so would not have, individually or in the
aggregate, a Company Material Adverse Effect, and such failure is
neither waived by Parent nor cured in all material respects by the
Company by the Scheduled Expiration Date or by any Extended Expiration
Date.
(3) the Company fails to perform or comply in all material respects with
its other covenants and agreements contained in the Merger Agreement
that the Company is required to perform or comply with and such failure
to perform or comply is neither waived by Parent nor cured in all
material respects by the Company by the Scheduled Expiration Date or by
any Extended Expiration Date.
(4) (i) there is pending any suit, action, or proceeding by any
Governmental Entity (as defined in the Merger Agreement) (A)
challenging the acquisition by Parent or the Merger Sub of the Shares,
or seeking to restrain or prohibit the making or consummation of the
Offer and the Merger or the performance of any of the other
transactions contemplated by the Merger Agreement which are necessary
for the making or consummation of the Offer or the Merger, or seeking
to obtain from the Company any damages that, if such suit, action, or
proceeding is successful, would result in a Company Material Adverse
Effect, (B) seeking, as a result of the Offer, the Merger or any of the
other transactions contemplated by the Merger Agreement, to (1)
prohibit or limit the ownership or operation by the Company, Parent or
any of their respective subsidiaries or affiliates of any of the
businesses or assets of the Company, Parent or any of their respective
subsidiaries or affiliates, or (2) compel the Company, Parent or any of
their respective subsidiaries or affiliates to dispose of or hold
separate any of the material businesses or assets of the Company,
Parent or any of their respective subsidiaries or affiliates, whereby,
in the case of clauses (1) and (2) such suit, action or proceeding, if
successful, would result in a Company Material Adverse Effect, (C)
seeking to impose material limitations on the ability of Parent or the
Merger Sub to acquire or hold, or exercise full rights of ownership of,
any of the Shares accepted for payment under the Offer including,
without limitation, the right to vote the Shares accepted for payment
by it on all matters properly presented to the stockholders of the
Company, (D) seeking to prohibit Parent or any of its subsidiaries or
affiliates from effectively controlling in any material respect the
business or operations of the Company or its subsidiaries which, if
successful, would result in a Company Material Adverse Effect, or, (E)
requiring divestiture by the Merger Sub or any of its affiliates of any
of the Shares, or (ii) the Company, Parent or the Merger Sub shall have
received a written notice from any Governmental Entity stating that
such entity is taking affirmative action that would be reasonably
likely to result in the filing or commencement of any suit, action or
proceeding relating to any actions described in clauses (A) through (E)
of this subsection (4).
(5) There shall have been entered, enacted, promulgated, enforced or issued
by any court or other Government Entity of competent jurisdiction any
judgment, order, decree, statute, law, ordinance, rule or regulation,
or any other legal restraint or prohibition shall be in effect, (i)
preventing the consummation of the Offer or the Merger or (ii)
prohibiting or limiting the ownership or operation by Parent or the
Company and their respective subsidiaries of any material portion of
the business or assets of Parent or the Company and their respective
subsidiaries, taken as a
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whole, or (iii) compelling Parent or the Company and their respective
subsidiaries to dispose of or hold separate any portion of the business
or assets of Parent or the Company and their respective subsidiaries,
taken as a whole, which (A) in the case of either clause (ii) or (iii),
would result in a Company Material Adverse Effect or a Parent Material
Adverse Effect (as defined below), except if such prohibition or
restraint relating to clauses (i), (ii) and (iii) arises under (1) any
antitrust, competition or similar statute, law, rule or regulation of
any jurisdiction outside the United States of America, or (2) any other
statute, law, rule or regulation of any jurisdiction outside the United
States of America, or (B) in the case of clauses (i), (ii) and (iii),
would reasonably be expected to subject any officer, director, employee
or stockholder of the Company or Parent to any civil or criminal
liability.
(6) the Merger Agreement shall have been terminated under its terms.
(7) any person or group, which includes a "person" or "group" as such terms
are defined in Section 13(d)(3) of the Exchange Act, other than Parent,
the Merger Sub, any of their affiliates, or any group of which any of
them is a member, shall have acquired beneficial ownership of more than
20% of the outstanding the Shares.
(8) all consents and approvals of and notices to or filings with
Governmental Entities required in connection with the Offer shall not
have been made or obtained.
The foregoing conditions are for the sole benefit of Merger Sub and Parent
and may be asserted by the Merger Sub or Parent regardless of the circumstances
giving rise to any such condition and may be waived by the Merger Sub or Parent,
in whole or in part, at any time and from time to time, in the sole discretion
of the Merger Sub or Parent. The failure by the Merger Sub or Parent or any of
their respective affiliates at any time to exercise any of the foregoing rights
will not be deemed a waiver of any right, the waiver of any such right with
respect to particular facts and circumstances shall not be deemed a waiver with
respect to any other facts and circumstances and each right will be deemed an
ongoing right which may be asserted at any time and from time to time.
For purposes of this Offer to Purchase, the term (i) "Scheduled Expiration
Date" means November 21, 2000, (ii) "Extended Expiration Date" means any date to
which the Offer has been extended as permitted by the terms of the Merger
Agreement and (iii) "Parent Material Adverse Effect" means any change or effect
(including prospective changes or effects) that, individually or when taken
together with all other changes or effects, is or would reasonably be expected
to be materially adverse to the assets, liabilities, financial condition,
results of operations or business of Parent and its subsidiaries, taken as a
whole, provided, however, that none of the following shall be deemed in
themselves, either alone or in combination, to constitute, and none of the
following shall be taken into account in determining whether there has or will
be a Parent Material Adverse Effect: (a) any changes in the trading price or the
trading volume for the shares of common stock, without par value, of Parent
between October 11, 2000 and the Effective Time, (b) the failure by Parent to
meet internal projections or forecasts or published revenue or earning
predictions for any period ending (or for which revenues or earnings are
disclosed) on or after the date hereof, (c) any change in the economy or
securities markets of the United States or any other country or region in
general, (d) any change or effect resulting from the announcement of the
transactions contemplated hereby, (e) changes in law or generally accepted
accounting principles, which affect generally entities such as Parent or the
Company, (f) any change or effect in the semiconductor or the semiconductor
capital equipment industries in general, and not specifically Parent or its
subsidiaries or (g) any change or effect resulting from compliance by any of the
parties hereto with the terms of the Merger Agreement.
14. DIVIDENDS AND DISTRIBUTIONS.
The Company has not paid dividends during at least the past two years.
According to the Company, the Company's credit facility contains restrictions on
the Company's ability to pay dividends. In addition, pursuant to the Merger
Agreement, the Company has agreed that during the term of the Merger Agreement
the Company may not declare, set aside or pay any dividend or any other
distribution with
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respect to the Shares except for dividends by a subsidiary of the Company to the
Company or a wholly owned subsidiary of the Company.
15. CERTAIN LEGAL MATTERS.
GENERAL. Except as otherwise disclosed in this Offer to Purchase, based
upon an examination of publicly available filings with respect to the Company,
Parent and the Merger Sub are not presently aware of any licenses or other
regulatory permits which appear to be material to the business of the Company
and which would be adversely affected by the acquisition of the Shares by the
Merger Sub under the Offer or of any approval or other action by any
governmental, administrative or regulatory agency or authority which would be
required for the acquisition or ownership of the Shares by the Merger Sub under
the Offer. Should any such approval or other action be required, it is currently
contemplated that such approval or action would be sought or taken. There can be
no assurance that any such approval or action, if needed, would be obtained or,
if obtained, that it will be obtained without substantial conditions or that
adverse consequences might not result to the Company's or Parent's business or
that parts of the Company's or Parent's business might not have to be disposed
of if such approvals were not obtained or such other actions were not taken, any
of which might enable the Merger Sub to elect to terminate the Offer without the
purchase of the Shares thereunder, if the relevant conditions to termination
were met. The Merger Sub's obligation under the Offer to accept for payment and
pay for the Shares is subject to certain conditions. See Section 13.
ANTITRUST COMPLIANCE. Under the HSR Act and the rules that have been
promulgated thereunder by the Federal Trade Commission ("FTC"), certain
acquisition transactions may not be consummated unless information has been
furnished to the Antitrust Division of the Department of Justice (the "Antitrust
Division") and the FTC and waiting period requirements have been satisfied. The
acquisition of the Shares by the Merger Sub is subject to these requirements.
See "Introduction" of this Offer to Purchase as to the effect of the HSR Act on
the timing of the Merger Sub's obligation to accept Shares for payment.
Under the HSR Act, Parent filed a Notification and Report Form with respect
to the acquisition of the Shares under the Offer and the Merger with the
Antitrust Division and the FTC on October 18, 2000. Under the provisions of the
HSR Act applicable to the purchase of the Shares under the Offer, such purchases
may not be made until the expiration of a 15-calendar day waiting period
following the filing by Parent. Accordingly, the waiting period under the HSR
Act will expire at 11:59 p.m., New York City time, on November 2, 2000, unless
early termination of the waiting period is granted or Parent receives a request
for additional information or documentary material. Pursuant to the HSR Act,
Parent has requested early termination of the waiting period applicable to the
Offer. There can be no assurances given, however, that the 15-day HSR Act
waiting period will be terminated early. If either the FTC or the Antitrust
Division were to request additional information or documentary material from
Parent, the waiting period would expire at 11:59 p.m., New York City time, on
the tenth calendar day after the date of substantial compliance by Parent with
such request unless the waiting period is sooner terminated by the FTC or the
Antitrust Division. Thereafter, the waiting period could be extended only by
agreement or by court order. Only one extension of such waiting period under a
request for additional information is authorized by the rules promulgated under
the HSR Act, except by agreement or by court order. Any such extension of the
waiting period will not give rise to any withdrawal rights not otherwise
provided for by applicable law. See Section 4. Parent expects the waiting period
under the HSR Act to expire at the end of the 15-day period, if not earlier
terminated.
The Antitrust Division and the FTC frequently scrutinize the legality under
the antitrust laws of transactions such as the proposed acquisition of the
Shares by the Merger Sub under the Offer. At any time before or after the Merger
Sub's purchase of the Shares, the Antitrust Division or the FTC could take such
action under the antitrust laws as it deems necessary or desirable in the public
interest, including seeking to enjoin the acquisition of the Shares under the
Offer or seeking divestiture of the Shares acquired by the Merger Sub or the
divestiture of substantial assets of Parent, the Company or any of their
respective subsidiaries. Private parties may also bring legal action under the
antitrust laws under certain circumstances. There can be no assurance that a
challenge to the Offer on antitrust grounds will not be
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made or, if a challenge is made, what the result will be. See Section 13 of this
Offer to Purchase for conditions to the Offer that could become applicable in
the event of such a challenge.
STATE TAKEOVER LAWS. Section 203 of the DGCL limits the ability of a
Delaware corporation to engage in business combinations with "interested
stockholders" (defined generally as any beneficial owner of 15% or more of the
outstanding voting stock in the corporation) unless, among other things, the
corporation's board of directors has given its prior approval to either the
business combination or the transaction which resulted in the stockholder
becoming an "interested stockholder." The Company Board has approved the Merger
Agreement and the Merger Sub's acquisition of the Shares under the Offer and the
Stock Option Agreement and, therefore, Section 203 of the DGCL is inapplicable
to the Offer and the Merger.
The Merger Sub does not believe that any state takeover laws purport to
apply to the Offer or the Merger. None of Parent or the Merger Sub has currently
complied with any state takeover statute or regulation. The Merger Sub reserves
the right to challenge the applicability or validity of any state law
purportedly applicable to the Offer or the Merger and nothing in this Offer to
Purchase or any action taken in connection with the Offer or the Merger is
intended as a waiver of such right. If it is asserted that any state takeover
statute is applicable to the Offer or the Merger and if an appropriate court
does not determine that it is inapplicable or invalid as applied to the Offer or
the Merger, the Merger Sub might be required to file information with, or to
receive approvals from, the relevant state authorities, and the Merger Sub might
be unable to accept for payment or pay for any Shares tendered under the Offer,
or be delayed in consummating the Offer or the Merger. In such case, the Merger
Sub may not be obligated to accept for payment or pay for any shares tendered
under the Offer.
16. FEES AND EXPENSES.
Georgeson Shareholder Securities Corporation is acting as Dealer Manager in
connection with the Offer. Parent has agreed to pay Georgeson Shareholder
Securities Corporation reasonable and customary compensation for its services as
Dealer Manager. Parent has also agreed to reimburse Georgeson Shareholder
Securities Corporation for its reasonable out-of-pocket expenses, including the
fees and expenses of its counsel, in connection with the Offer, and has agreed
to indemnify Georgeson Shareholder Securities Corporation against certain
liabilities and expenses in connection with the Offer, including liabilities
under the Federal securities laws. At any time Georgeson Shareholder Securities
Corporation and its affiliates may actively trade the Shares for their own
account or for the account of customers and, accordingly, may at any time hold a
long or short position in the Shares.
Corporate Investors Communications, Inc. is acting as Information Agent in
connection with the Offer. The Information Agent may contact holders of the
Shares by personal interview, mail, telephone, telex, telegraph and other
methods of electronic communication and may request brokers, dealers, banks,
trust companies and other nominees to forward the Offer materials to beneficial
holders. The Information Agent will receive reasonable and customary
compensation for its services, be reimbursed for reasonable out-of-pocket
expenses and be indemnified against certain liabilities and expenses in
connection with its services, including certain liabilities under the federal
securities laws.
The Merger Sub will pay the Depositary reasonable and customary
compensation for its services in connection with the Offer, plus reimbursement
for out-of-pocket expenses, and will indemnify the Depositary against certain
liabilities and expenses in connection therewith, including liabilities under
the Federal securities laws. Brokers, dealers, commercial banks and trust
companies will be reimbursed by the Merger Sub for customary mailing and
handling expenses incurred by them in forwarding material to their customers.
17. MISCELLANEOUS.
The Offer is not being made to, nor will tenders be accepted from or on
behalf of, holders of the Shares in any jurisdiction in which the making of the
Offer or the acceptance thereof would not be in compliance with the laws of such
jurisdiction. However, the Merger Sub may, in its sole discretion, take
35
<PAGE> 41
such action as it may deem necessary to make the Offer in any such jurisdiction
and extend the Offer to holders of the Shares in such jurisdiction.
None of Parent or the Merger Sub is aware of any state where the making of
the Offer is prohibited by administrative or judicial action under any valid
state statute. If either Parent or the Merger Sub becomes aware of any valid
state statute prohibiting the making of the Offer or the acceptance of the
Shares pursuant thereto, the Merger Sub will make a good faith effort to comply
with such statute or seek to have such statute declared inapplicable to the
Offer. If, after such good faith effort, the Merger Sub cannot comply with such
state statute, the Offer will not be made to, nor will tenders be accepted from
or on behalf of, holders of the Shares in such state. In those jurisdictions
where the securities, blue sky or other laws require the Offer to be made by a
licensed broker or dealer, the Offer is being made on behalf of the Merger Sub
by the Dealer Manager or one or more registered brokers or dealers licensed
under the laws of such jurisdictions.
Parent and the Merger Sub have filed a Schedule TO with the SEC under Rule
l4d-3 of the General Rules and Regulations under the Exchange Act, furnishing
additional information with respect to the Offer, and may file amendments
thereto. The Schedule TO and any amendments thereto, including exhibits, may be
examined and copies may be obtained from the principal office of the SEC in
Washington, D.C. in the manner set forth in Section 8.
No person has been authorized to give any information or make any
representation on behalf of Parent or the Merger Sub not contained in this Offer
to Purchase or in the Letter of Transmittal and, if given or made, such
information or representation must not be relied upon as having been authorized.
CARDINAL MERGER SUB., INC.
October 25, 2000
36
<PAGE> 42
SCHEDULE A
INFORMATION CONCERNING DIRECTORS AND EXECUTIVE OFFICERS OF KULICKE
AND SOFFA INDUSTRIES, INC. AND MERGER SUB
1. DIRECTORS AND EXECUTIVE OFFICERS OF KULICKE AND SOFFA INDUSTRIES,
INC. The following table sets forth the name and present principal occupation
or employment, and material occupations, positions, offices or employments for
the past five years, of each member of the Board of Directors and executive
officers of Kulicke and Soffa Industries, Inc. Unless otherwise indicated, each
such person is a citizen of the United States of America and the business
address of each such person is c/o Kulicke and Soffa Industries, Inc., 2101
Blair Mill Road, Willow Grove, Pennsylvania 19090. Unless otherwise indicated,
each such person has held his or her present occupation as set forth below, or
has been an executive officer at Kulicke and Soffa Industries, Inc. for the past
five years.
DIRECTORS OF KULICKE AND SOFFA INDUSTRIES, INC.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
<S> <C>
Philip V. Gerdine, age 61.......... Independent Consultant. From September 1989 to September
1998, served as Executive Director, Siemens AG and as
managing director of the Plessey Company. Formerly, Vice
President-Corporate Development of Siemens Corporation. Has
held senior management positions with General Electric Co.,
Price Waterhouse and The Boston Consulting Group. Currently
a director of Applied Materials, Inc. and Solectron
Corporation.
C. Scott Kulicke, age 51........... Chairman of the Board and Chief Executive Officer of
Kulicke and Soffa Industries, Inc. Also serves on the Board
of Directors of General Semiconductor, Inc. and Xetel
Corporation.
John A. O'Steen, age 56............ Executive Vice President of Operations (since July 1998)
and Executive Vice President (January to June 1998) of
Cornerstone Brands, Inc., a consumer catalog company. From
1991 to 1998, Chairman and Chief Executive Officer of
Cinmar, L.P., a mail order catalog company acquired by the
predecessor of Cornerstone Brands in September 1995.
Formerly, President, Chief Executive Officer and a director
of Cincinnati Microwave, Inc., a manufacturer of electronic
products. Currently, a director of Cornerstone Brands, Inc.
and Bill's Dollar Stores, Inc. Address: 5568 West Chester
Road, West Chester, OH 45069.
Allison F. Page, age 77............ Retired partner in the Philadelphia law firm of Pepper
Hamilton LLP
MacDonell Roehm, Jr., age 61....... Chairman of Australian Ventures LLC, a private equity fund
focusing on emerging company investments in Australia and
New Zealand, since 1999. Chairman and Chief Executive
Officer of Crooked Creek Capital LLC, a provider of
strategic, operational and financial restructuring
services, since 1998. Former Chairman, President and Chief
Executive Officer of Bill's Dollar Stores, Inc., a chain of
retail convenience stores, from 1994 to March 1998. Prior
to that time, Managing Director of AEA Investors, Inc., a
private investment firm. Also serves on the Board of
Directors of Tower Technology Pty., Ltd.
</TABLE>
A-1
<PAGE> 43
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
<S> <C>
Larry D. Striplin, Jr., age 70..... Chairman of the Board and Chief Executive Officer of
Nelson-Brantley Glass Contractors, Inc., a glass
contractor, and Circle "S" Properties, Inc., a real estate
rental company. Chairman of Circle "S" Industries, Inc. and
American Fine Wire Corp. before their acquisition by
Kulicke and Soffa Industries Inc. in 1995. Currently, a
director of HealthSouth Corporation, The Banc Corporation
and the Bank of Birmingham. Address: 2924 Third Avenue S.,
Birmingham, AL 35233.
C. William Zadel, age 57........... Chairman, President and Chief Executive Officer of
Millipore Corporation, a global manufacturer of filtration
and purification products and former President and Chief
Executive Officer of Ciba-Corning Diagnostics Corp., a
manufacturer and distributor of medical diagnostic
products. Currently, a director of Matritech, Inc. Address:
80 Ashby Road, Bedford, MA 01730.
</TABLE>
EXECUTIVE OFFICERS OF KULICKE AND SOFFA INDUSTRIES, INC.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
<S> <C>
C. Scott Kulicke, age 51........... Chief Executive Officer
Morton K. Perchick, age 63......... Executive Vice President, Office of the President.
Appointed to Kulicke and Soffa Industries, Inc.'s newly
created Office of the President in May 2000. Named
Executive Vice President in July 1995. Joined Kulicke and
Soffa Industries, Inc. in September 1980 as Director,
Quality and Reliability. He became Vice President in 1982
and moved to general management in 1986, when he assumed
responsibility for operations. In 1990, he was appointed
Senior Vice President/General Manager.
Alexander A. Oscilowski, age 41.... Senior Vice President, Office of the President. Joined
Kulicke and Soffa Industries, Inc. in June 1999 as Vice
President, Strategic Marketing. In May 2000, he was
appointed to the newly created Office of the President.
Joined SEMATECH in 1993 as director of Assembly & Packaging
and was director of Advanced Technology until January 1999.
Previously served as semiconductor packaging manager in the
semiconductor operations unit for Digital Equipment and was
an assembly manager, packaging supervisor and process
engineer at Texas Instruments.
Clifford G. Sprague, age 56........ Senior Vice President and Chief Financial Officer. Joined
Kulicke and Soffa Industries, Inc. as Vice President and
CFO in March 1989. In May 1990 he was promoted to Senior
Vice President. Prior to joining Kulicke and Soffa
Industries, Inc., he served for more than five years as
Vice President and Controller of the Oilfield Equipment
Group of NL Industries, Inc.
</TABLE>
A-2
<PAGE> 44
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT;
NAME MATERIAL POSITIONS HELD DURING THE PAST FIVE YEARS
---- --------------------------------------------------
<S> <C>
David A. Leonhardt, age 42......... Senior Vice President and Co-President of the Advanced
Bonding Systems Group. Promoted to Senior Vice President
and Co-President of Kulicke and Soffa Industries, Inc.
Advanced Bonding Systems Group in November 1999. In March
1998, became Vice Present and General Manager of the
Equipment Group, after serving as Vice President of
Strategic Marketing since December of 1996. Prior to that,
he spent four years as Director of the Ball Bonder Division
and a year as Product Manager for Wedge Bonder Products.
Laurence P. Wagner, age 40......... Senior Vice President and Co-President of the Advanced
Bonding Systems Group. Joined Kulicke and Soffa Industries,
Inc. in 1998 as Senior Vice President and President,
Kulicke and Soffa Industries, Inc. Packaging Materials. In
November 1999, was promoted to Senior Vice President and
Co-President of the Advanced Bonding Systems Group.
Previously was with Emcore Corporation, where he was vice
president of Emcore Electronic Materials. Prior to 1996,
Mr. Wagner worked for the Shipley Company LLC, a Division
of Rohm and Haas Company in a number of progressively
responsible positions.
Charles J. Salmons, age 45......... Senior Vice President, Customer Operations, appointed in
1999. Joined Kulicke and Soffa Industries, Inc. in 1978,
and has held positions of increasing responsibility
throughout the accounting, engineering, and manufacturing
organizations. In 1994 he became Vice President of
Operations and was named General Manager, Wire Bonder
Operations in 1998.
</TABLE>
2. DIRECTORS AND EXECUTIVE OFFICERS OF CARDINAL MERGER SUB., INC. The
following table sets forth the name and present principal occupation or
employment, and material occupations, positions, offices or employments for the
past five years, of each director and executive officer of Cardinal Merger Sub.,
Inc. Each such person is a citizen of the United States of America, unless
otherwise noted, and the business address of each such person is c/o Kulicke and
Soffa Industries, Inc., 2101 Blair Mill Road, Willow Grove, Pennsylvania 19090.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH CARDINAL MERGER SUB., INC.;
NAME OTHER MATERIAL NAME POSITIONS HELD DURING THE PAST FIVE YEARS
---- ---------------------------------------------------------------------------
<S> <C>
C. Scott Kulicke, age 51........... President, Director of Cardinal Merger Sub., Inc. See above for other
material positions.
Clifford G. Sprague, age 56........ Vice President, Director of Cardinal Merger Sub., Inc. See above for other
material positions.
Morton K. Perchick, age 63......... Vice President, Director of Cardinal Merger Sub., Inc. See above for other
material positions.
Robert F. Amweg, age 47............ Vice President, Treasurer of Cardinal Merger Sub., Inc. Joined Kulicke and
Soffa Industries, Inc. in February, 1997 as its Treasurer and was promoted
to Vice President, Treasurer in 2000. Prior to joining Kulicke and Soffa
Industries, Inc., was Vice President, Finance and Chief Financial Officer
of XYAN, Inc., a printing and related services company.
</TABLE>
A-3
<PAGE> 45
<TABLE>
<CAPTION>
PRESENT PRINCIPAL OCCUPATION OR EMPLOYMENT WITH CARDINAL MERGER SUB., INC.;
NAME OTHER MATERIAL NAME POSITIONS HELD DURING THE PAST FIVE YEARS
---- ---------------------------------------------------------------------------
<S> <C>
Jeffrey C. Moore, age 44........... Secretary of Cardinal Merger Sub., Inc. General Counsel of Kulicke and
Soffa Industries, Inc. since October, 1996. Prior to joining Kulicke and
Soffa Industries, Inc., General Counsel of Envirosource Treatment &
Disposal Services, Inc. and an attorney with Air Products and Chemicals,
Inc.
Susan L. Waters, age 44............ Assistant Secretary of Cardinal Merger Sub., Inc. Secretary of Kulicke and
Soffa Industries, Inc. since 1995. Assistant Secretary of Kulicke and Soffa
Industries, Inc. from 1984 to 1995. Assistant to the Chairman since 1980.
</TABLE>
A-4
<PAGE> 46
Manually signed facsimile copies of the Letter of Transmittal, properly
completed and duly executed, will be accepted. The Letter of Transmittal,
certificates for the Shares and any other required documents should be sent or
delivered by each stockholder of the Company or his broker-dealer, commercial
bank, trust company or other nominee to the Depositary as follows:
The Depositary for the Offer is:
HARRIS TRUST COMPANY OF NEW YORK
<TABLE>
<CAPTION>
By Mail: By Hand/Overnight Delivery:
<S> <C>
Wall Street Station Receive Window
P.O. Box 1023 Wall Street Plaza
New York, NY 10268-1023 88 Pine Street, 19th Floor
New York, NY 10005
</TABLE>
By Facsimile Transmissions:
(for Eligible Institutions only)
(212) 701-7636
For Information (call collect):
(212) 701-7624
Any questions or requests for assistance or additional copies of the Offer
to Purchase and the Letter of Transmittal, the Notice of Guaranteed Delivery and
related materials may be directed to the Information Agent or the Dealer Manager
at their respective telephone numbers and locations listed below. You may also
contact your broker, dealer, commercial bank or trust company or other nominee
for assistance concerning the Offer.
The Information Agent for the Offer is:
CORPORATE INVESTOR COMMUNICATIONS, INC.
111 Commerce Road, Carlstadt, New Jersey 07072-2586
Banks and Brokers call collect (201) 896-1900
All others call Toll Free (888) 682-7239
The Dealer Manager for the Offer is:
[GEORGESON SHAREHOLDER LOGO]
